People v. LopezPeople v. Lopez
- Reporters:
- , ,
- Before:
- Smith, Poochigian, Ellison
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
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* Before Poochigian, Acting P.J., Smith, J. and Ellison, J. †
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to
Appellant Anthony Lopez stands convicted of petty theft with a prior, pursuant to
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 12, 2015, Lopez and a female companion were inside a Walmart store. Lopez was observed placing a home stereo unit and several small items inside a Walmart bag in a shopping cart. Lopez did not pay for the items before exiting the store. Outside the store, an asset protection officer stopped Lopez; Lopez admitted he had not paid for the items. The value of the unpaid items was determined to be $496.37.
Lopez told police he had gone to Walmart to purchase a few items, but only had five dollars with him. Lopez claimed he had no intention of stealing anything prior to entering the store, but formed the intent to steal once inside. He admitted placing items inside his cart and leaving the store without paying for them.
On March 12, 2015, a complaint was filed charging Lopez with shoplifting in violation of
“If you wanted to enter a plea, I‘d be inclined to maybe put the sentencing over for a couple months so he can get his affairs in order, if he wants to take advantage of the two-year sentence.
“Otherwise, I‘ll bind it over on both counts and he‘s probably looking at three years with the prior prison commitment, possibly four given his prior record. Looks like he‘s been to prison a couple times.”
At this point, there was a pause in the proceedings, after which defense counsel stated Lopez “would like to proceed with his case.” The People then moved to hold Lopez to answer to the charge of shoplifting in the complaint, and the additional charge of petty theft with a prior. The trial court inquired if defense counsel had any response, and defense counsel replied, “Submitted.” The trial court replied, “The Court will hold him to answer on both those charges with all the special allegations.”
In an information filed September 28, 2015, the People charged Lopez with felony shoplifting pursuant to
Before trial, Lopez asked the trial court to exercise its authority pursuant to
A jury trial commenced on August 29, 2016. During closing argument, the People argued the facts showed Lopez had an intent to steal when he entered the Walmart store because he only “had $5 on him when he came to Wal-Mart, but then he also brought a
The defense argued that the shoplifting charge was “a little more specific” than the petty theft charge because the People had to prove “what his intention was the moment he walked into the store.”
After retiring to deliberate, the jury asked for a read back of testimony. The jury then asked a question, “Can we use the instructions from 1800 to determine the intent from the shoplifting charge? We just need clarification.” The trial court discussed with both counsel the appropriate response to the question and provided a response to the jury.
A second question was asked by the jury, “[C]an we use the prior conviction we used to show the intent for shoplifting?” The trial court again discussed the appropriate response with both counsel and provided a response to the jury. A third question was received from the jury asking, “Does number 2 of 1700 mean prior intent or intent once he enters the store?” Again, the trial court discussed the response to be provided the jury with both counsel.
On August 30, 2016, the jury indicated they had reached a verdict as to one count and were unable to reach a verdict on the other count. The jury returned a verdict of guilty on count 1, the charge of petty theft with a prior. No verdict was reached on the count 2 charge of shoplifting. The trial court declared a mistrial as to count 2 and the People dismissed count 2.
In a bifurcated court trial on the allegations, the trial court found all of the remaining allegations true. The trial court imposed a total term of two years at the November 10, 2016, sentencing.
Lopez filed a timely notice of appeal on November 15, 2016.
DISCUSSION
Lopez contends his conviction should be reversed because
Forfeiture
The People amended the charges at the preliminary hearing to add the petty theft with a prior count, in addition to the shoplifting charge. There was no objection by Lopez. The People contend Lopez has forfeited any challenge to the filing of the amended information and the additional charge of petty theft with a prior. Generally, a defendant‘s failure to object to an amended information forfeits his right to assert the error on appeal. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057; People v. Carbonie (1975) 48 Cal.App.3d 679, 691; People v. Spencer (1972) 22 Cal.App.3d 786, 799-800; People v. Collins (1963) 217 Cal.App.2d 310, 313.)
Anticipating the forfeiture argument, Lopez contends defense counsel rendered ineffective assistance. Therefore, we address the merits of Lopez‘s contention.
Section 459.5 – Shoplifting
Proposition 47 created the new crime of “shoplifting,” set forth in
“(a) Notwithstanding Section 459, shoplifting 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.
“(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”2
Lopez contends that because he was charged with shoplifting pursuant to
The purpose of the preliminary hearing is to determine whether a defendant should be bound over for trial and on what charges he or she is to be tried. (People v. Esmaili (2013) 213 Cal.App.4th 1449, 1459.) The evidence at the preliminary hearing was that Lopez maintained he formed no intent to steal until after entering Walmart. If true, then the charge of shoplifting would not lie as Lopez did not have the intent to commit larceny when he entered Walmart. (
The People elected to proceed on both shoplifting and petty theft with prior charges after the preliminary hearing and the jury verdict reflects the People‘s concerns with proof of intent. The jury failed to convict on the shoplifting charge; their questions indicate they struggled to find intent to commit larceny at the time of entry into Walmart.
Lopez argues, however, that
Whether to prosecute and what charges to file are decisions that generally rest in the prosecutor‘s discretion. (United States v. Batchelder (1979) 442 U.S. 114, 123-124.)
“[T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ’ “the complex considerations necessary for the effective and efficient administration of law enforcement” ’ [Citations.] The prosecutor‘s authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch.”
However, prosecutorial discretion on charging can and has been limited in certain instances. (See e.g., People v. Murphy (2011) 52 Cal.4th 81, 87; People v. Rader (2014) 228 Cal.App.4th 184, 194-200; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332-1333.)
The Supreme Court has held the language of
We do not construe
As for effectuating the voters’ intent, our construction of
The requirement of intent upon entry could easily have been omitted from the statutory language, but was not. We will not construe the entry with intent language in
Where uncertainty exists as to the meaning of statutory language, “consideration should be given to the consequences that will flow from a particular interpretation.” (People v. Valencia, supra, 3 Cal.5th at p. 358.) To adopt Lopez‘s interpretation of
No Ineffective Assistance of Counsel
The standard of review when questioning whether a defendant received effective representation is well established. “In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel‘s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel‘s performance ’ ” ’ “fell below an objective standard of reasonableness . . . under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel‘s deficient performance, the outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198.)
As we have concluded the prosecutor was not prohibited from charging Lopez both with shoplifting and petty theft with a prior, Lopez has failed to demonstrate that defense counsel‘s failure to object to the addition of the petty theft with a prior charge was either deficient performance or prejudicial.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
[No Change in Judgment]
It is hereby ordered that the opinion filed on July 27, 2018, be modified as follows:
- On page 9, the first sentence of the first full paragraph commencing, “As for effectuating the voters’ intent ....” is modified to read:
“Our construction of
section 459.5, subdivision (b) , effectuates the voters’ intent.”
There is no change in the judgment. Except for the modification set forth above, the opinion previously filed remains unchanged.
The Attorney General has requested the opinion filed July 27, 2018, be certified for publication. It appears our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The request is granted.
Smith, J.
WE CONCUR:
Poochigian, Acting P.J.
Ellison, J. †
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to