THE PEOPLE, Plаintiff and Respondent, v. MICHAEL EVAN FUSTING, Defendant and Appellant.
No. D069050
Fourth Dist., Div. One.
July 11, 2016
248 Cal. App. 4th 404
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodоre M. Cropley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
HUFFMAN, J.—This is another case dealing with the proper interpretation of newly created
The question presented by this appeal is whether a defendant must commit or intend to commit common law larceny at the time the person enters a commercial establishment during regular business hours. The parties do not dispute the building was a commercial establishment, that it was open for business, or that the value of the intended theft was less than $950.
In 2004, Michael Evan Fusting entered a guilty plea to one count of second degree burglary (
Following the passage of Proposition 47 (
STATEMENT OF FACTS
According to the change of plea form, Fusting entered a building with the intent to sell a stolen surfboard.
DISCUSSION
Fusting contends the trial court’s analysis of sections 459.5 and 490a was flawed. He argues that the intent to commit larceny as used in section 459.5 must be read consistently with the case law analyzing the same language in section 459. The People, on the other hand, argue we should focus on the commonsense meaning of the term “shoplifting” and give it a dictionary meaning without reference to sections 459 and 490a. The People also argue that Fusting did not enter the surf shop with the intent to cоmmit theft or larceny. They contend he entered with the intent to commit theft by false pretenses. Regarding the People’s latter position, we simply respond he was charged with and convicted of entering a building with the intent to commit theft, which we find entirely consistеnt with case law analyzing sections 459 and 490a.
A. Legal Principles
Proposition 47 added section 1170.18, which allows “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47 had it] been in effect at the time of the offense” to “petition for a recall of sentence” and request resentencing. (
Relevant here, Proposition 47 also added a new crime of shoplifting, which is defined as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (
In interpreting section 459.5, Fusting urges we look to section 490a for guidance. Section 490a provides, “[w]herever any law or statute of this state refers tо or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”
Specifically, our issue requires us to find the correct interpretation of the term “larceny” as used in section 459.5. “In interpreting a voter initiative like [Proposition 47], we apply the same principles that govern statutory construction. [Citation.] ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]’ [Citation.] In the case of a provision adopted by the voters, ‘their intent governs.’ [Citation.] [¶] ‘In determining such intent, we begin with the language of the statute itself.’ [Citation.] We look first to the words the voters used, giving them their usual аnd ordinary meaning. ‘If there is no ambiguity in the language of the statute, then . . . the plain meaning of the language governs.’ [Citation.] ‘But when the
B. Analysis
The People contend Fusting did not commit shoplifting when he entered the surf shop with the intent to commit theft by false pretenses because shoplifting requires an intent to commit larceny. Also, the People argue section 490a is inapplicable because it does not redefine larceny as any theft. We are not persuaded by these arguments. Historically, the term “larceny” as used similarly in the burglary statute has been interpreted to include all thefts, including theft by false pretenses. (People v. Dingle (1985) 174 Cal.App.3d 21, 30; People v. Nguyen (1995) 40 Cal.App.4th 28, 31 (Nguyen); People v. Parson (2008) 44 Cal.4th 332, 353-354.)
In People v. Williams (2013) 57 Cal.4th 776 (Williams), our high court discussed whether a man who committed theft by false pretenses and subsequently pushed a security guard in an attempt to flee could satisfy the “felonious taking” requirement of robbery. (Id. at p. 779.) One element of robbery, which is not present in any other type of theft, is the “felonious taking” requirement. The defendant argued that the “felonious taking” requirement could only be satisfied by the crime of theft by larceny, and not theft by false pretenses. (Id. at p. 781.) The court, after analyzing the common law meanings of the different theft offenses, found that larceny is a necessary element of robbery. (Id. at pp. 786-787.) Thus, Williams held that theft by false pretenses could not support a robbery conviction, because only theft by larceny could fulfill the “felonious taking” requirement.
The analysis in Williams, supra, 57 Cal.4th 776 is distinguishable from our current issue of whether section 459.5 can be satisfied by theft by false pretenses. This is because the tеrm “larceny” is not actually present in the statute defining robbery (
Conversely, in Nguyen, supra, 40 Cal.App.4th 28, we discussed whether a defendant could be convicted of burglary for entering the premises of another with the intent to commit theft by false pretenses. Nguyen held that the term “larceny” as used in the burglary statute included theft by false pretenses. In reaching our conclusion, we noted that section 490a shows “the Legislature has indicated a clear intent that the term ‘larceny’ as used in the burglary statute should be read to include all thefts, including ‘petit’ theft by false pretenses.” (Nguyen, supra, at p. 31.) The Nguyen holding is more on point with the issue here, because, unlike Williams, supra, 57 Cal.4th 776, we analyzed the interpretation of the term “larceny” as used in a statute.
Additionally, the People argue, in enacting section 459.5, the voters intended to restrict its application to stealing goods or merchandise openly displayed in retail stores. The People assert that “shoplifting” has long and commonly been understood to encompass only the theft of oрenly displayed merchandise from commercial establishments. As such, the People contend the voters’ reasonable belief was that the crime of “shoplifting” referred only to the common understanding of that crime. However, in viewing the plain text of thе statute, we find nothing to support that contention. Had the voters intended “shoplifting” to be confined to that limited meaning, that intention could have easily been expressed in the text of the statute. Instead, the statute was worded substantially similar to the burglary statute (
The People urgе us to apply the definition of “shoplifting” as used in dictionaries and as discussed in Wharton’s treatise on criminal law (3 Wharton’s Criminal Law (15th ed. 2015) § 343). We decline to take that approach. The statute does not contain any definition of “shoplifting” other than setting forth thе elements of the offense in the specific language of section 459.5. We decline to speculate whether the voters had to resort to dictionaries in formulating their views on the statute. We find it even more unlikely that they were familiar with Wharton’s criminal law treatise. Indeed, we wonder how many law-trained professionals have considered that resource. In short we remain satisfied that analysis of the language of the statute, in light of the case law defining the terms, is the best indicator of the voters’ intent.
In considering
DISPOSITION
The order denying Fusting’s petition to reduce his burglary conviction to shoplifting is reversed, with directions to grant the petition.
Benke, Acting P. J., and Haller, J., concurred.