People v. LopezPeople v. Lopez
Defendant Anthony Lopez entered a Walmart and stole items worth $496.37. He was charged with shoplifting and theft, but was сonvicted solely of theft because the jury could not reach a verdict on shoplifting. On appeal, defendant raised a claim that his conviction must be reversed because he had been charged in violation of Penal Code section 459.5, subdivision (b)1 (section 459.5(b)), which provides: “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.” (Italics added.) The Court of Appeal recognized that defendant had been improperly charged with shoplifting and theft of the same property. Nevertheless, it affirmed the conviction, reasoning that defendant was not prejudiced by his trial counsel’s failure to object to the charges, because section 459.5(b) would have permitted the prosecutor to respond to any such objection by amending the information to charge shoplifting and theft in the alternative, which would have resultеd in the same theft conviction. We granted review to determine the scope of section 459.5(b)’s limits on prosecutorial charging discretion.
Before this court, the parties agree that section 459.5(b) precludes charging shoplifting and theft of the same property,
We hold that section 459.5(b) prohibits charging shoplifting and theft of the same property, even in the alternative. But a prosecutor may charge shoplifting with an allegation stating that “the value of the property taken does not exceed $950,” such that petty theft is an uncharged lesser included offense under the accusatоry pleading test. Consistent with the principles governing instructions on lesser included offenses, if shoplifting is so charged, and if there is substantial evidence from which a jury could conclude that the defendant committed petty theft but not shoplifting, the trial court is required to instruct the jury on petty theft, and the jury is required to return an acquittal on shoplifting before it may return a verdict on petty theft.
Additionally, we hold that, as a general rule, section 459.5(b) prohibits a prosecutor from charging theft when there is probable cause that a defendant has committed shoplifting of the same property. As an exception to this general rule, however, even when there is probable cause that a defendant has committed shoplifting, a prosecutor may charge theft instead of shoplifting if the prosecutor can articulate a theory supported by the evidence under which the defendant would be guilty of theft but not shoplifting.
Having so interpreted section 459.5(b), we reverse the judgment of the Court of Appeal and remand for further proceedings consistent with our opinion.
On February 12, 2015, defendant Anthony Lopez and a female companion were inside a Walmart store when they attracted the attention of a Walmart asset protection officer. After noticing defendant select a home stereo unit, the asset protection officer followed defendant throughout the store and watched as defendant placed items into an empty Walmart plastic bag within his shopping cart. When the couple reached the register, defendant’s female companion paid for the items that she had placed in the cart, but defendant pushed the cart towards the exit without paying for his items. As soon as the couple exited the store, the asset protection officer confronted dеfendant, who admitted that he had not paid for the merchandise. The asset protection officer identified the unpurchased items—a home stereo unit, a candle wax warming kit, a flashlight, and a TV wall mount—and determined their combined value to be $496.37.
Later, defendant told the police that he had gone to Walmart with $5 to purchase a few items, but with no intention of stealing anything. According to defendant, once he was inside the store, he decided he needed money, so he placed some items into his shopping cart and left without paying for them.
Initially, the prosecutor filed a complaint charging defendant with felony shoplifting under
On August 29 to 30, 2016, the court held a bifurcated trial. After requesting a read-back of testimony and asking three questions, the jury submitted a note to the court stating that it was “split on the decision for shoplifting, based on intent.” Ultimately, the jury found defendant guilty of petty theft, but it could not reach a verdict on shoplifting. The court declared a mistrial on the shoplifting charge and, upon the prosecution’s motion, dismissed it. In a bench trial, the court found true all the remaining allegations.3
On appeal, defendant raised a claim that his conviction must be reversed because section 459.5(b) prohibits a persоn who is “charged with shoplifting” from “also be[ing] charged with burglary or theft of the same property.” Anticipating that this claim may have been forfeited, defendant also raised a claim that his trial counsel had rendered constitutionally ineffective assistance by failing to demur to the amended information or otherwise object to the charges.
The Court of Appeal agreed with the Attorney General and affirmed the conviction. We granted defendant’s petition for review and ordered briefing on several questions related to section 459.5(b).
II. DISCUSSION
“Proposition 47 has generated many interpretive issues for this court.” (People v. Valenzuela (2019) 7 Cal.5th 415, 423 (Valenzuela).) This case is no exception.
In the 2014 general election, Californians passed this voter initiative to “ ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.’ ” (People v. Gonzales (2017) 2 Cal.5th 858, 870 (Gonzales), quoting Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70 (Voter Information Guide).) As is relevant here, the measure added
Of course, if a person enters a commercial establishment with the intent to commit theft and carries out his or her intent—by taking another’s property without consent and with the intent to permanently deprive the owner of the property—that person also commits theft.4 (
Section 459.5(b) limits a prosecutor’s charging discretion in this context. It provides: “Any act of shoplifting as defined in subdivision (a) shаll be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” We granted review to determine whether these directives permit a prosecutor to charge shoplifting and theft of the same property in the alternative; to charge shoplifting such that petty theft would be a lesser included offense under the accusatory pleading test; or to charge theft instead of shoplifting when there is evidence that the defendant may have committed shoplifting.
A. Charging Shoplifting and Theft of the Same Property
1. Background
On appeal, both the Attorney General and the Court of Appeal acknowledged that the plain meaning of section 459.5(b)’s second directive—“[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property”—prohibits charging shoplifting and theft, even in the alternative. (See People v. Lopez (2018) 26 Cal.App.5th 382, 386–392 (Lopez).) But the Attorney General argued, and the cоurt agreed, that a literal reading of this language would lead to absurd results and contradict voters’ intent in cases where it is unclear whether defendant formed the intent to
Using the facts of this case, the Attorney General illustrated these points: “[The prosecutor] could have charged аppellant [Lopez] with petty theft. By the plain meaning of section 459.5, she could not have also charged shoplifting, even as an alternative charge—in choosing to charge appellant with petty theft, she would be precluded from charging shoplifting. However, appellant could then simply argue that his intent to commit theft was formed prior to his entry into Walmart. As the prosecutor pointed out, he only had five dollars at the time and also brought an empty bag to conceal merchandise. If the jury found this to be true, then appellant’s conduct would constitute shoplifting and the prosecutor will necessarily have violated section 459.5’s requirement that conduct constituting shoplifting be charged as shoplifting. [¶] Alternatively, the prosecutor could have charged appellant with shoplifting. Under the plain meaning of section 459.5, the prosecutor could not also charge pеtty theft, even as an alternative charge. But appellant could then argue that his intent to commit theft was formed after his entry into Walmart. And if the jury found this to be true, . . . then the prosecutor has failed to prove the shoplifting charge. Because she was not permitted to
In sum, the Attorney General took the position that the section 459.5(b) “should be interpreted to permit alternative charging of shoplifting and other theft-related offenses while continuing to prevent multiple convictions based on theft of the same property.” The Court of Appeal agreed, holding that section 459.5(b) does not prohibit charging shoplifting and theft of the same property in the alternative “when the element of intent upon entering the commercial establishment is absent or in question.” (Lopez, supra, 26 Cal.App.5th at p. 390.)
2. Discussion
Despite prevailing below, the Attorney General adopts a different position before this court. He now agrees with defendant that section 459.5(b)’s second directive “prohibits a prosecutor from charging a defendant with both shoplifting and petty theft of the same property, even in the alternative.”
Before interpreting section 459.5(b), we briefly review the canons that guide our process. In construing a voter initiative, “ ‘[W]e apply the same principles that govern statutory construction.’ [Citation.] As a law adopted by the voters, ‘their intent governs.’ [Citation.] In ascertaining that intent, ‘we turn first to the language of the statute, giving the words their ordinary meaning.’ [Citation.] This language is interpreted in the context of the statute as a whole, as well as the overall statutory scheme. [Citation.]” (Valenzuela, supra, 7 Cal.5th at p. 423.)
We begin with the observation that section 459.5(b)’s second directive—“
When section 459.5(b) is read in this context, it appears that Proposition 47’s voters primarily intended the subdivision’s charging directives to ensure that defendants who commit an “act of shoplifting”—but who have not suffered a specified prior conviction—are charged with and convicted of a single misdemeanor offense. In other words, the voters made a determination that the conduct that they defined as shoplifting deserves a single misdemeanor conviction, and they wanted to prevent prosecutors from circumventing this determination by
Although we are not bound by their interpretation of the law, we agree with the parties that section 459.5(b)’s second directive unambiguously prohibits charging shoplifting and theft of the same property, even in the alternative, and that the plain meaning of the directive should control. (See Desny v. Wilder (1956) 46 Cal.2d 715, 729 [court not bound to accept parties’ concessions on issues of law]; Bradley v. Clark (1901) 133 Cal. 196, 209–210 [same].) We recognize the Court of Appeal’s concern that this interpretation may lead to the unintended consequence that a defendant who has committed theft may escape criminal liability simply because he is charged with shoplifting and the jury entertains a reasonable doubt about one of shoplifting’s elements. But we are not persuaded that this possibility is so absurd as to justify a departure from the plain meaning of the statutory language. (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 638 [“To justify departing from a literal reading of a clearly worded statute, the result must be so unreasonable that the Legislature could not have intended it.”].)
First, as we explain below, we believe prosecutors can avoid this unintended consequence by charging shoplifting such
B. Charging Shoplifting with Petty Theft as a Lesser Included Offense
Before this court, the Attorney General advances two arguments as to why defendant was not prejudiced by trial counsel’s failure to object. First, we consider his contention that the prosecutor could have responded to an objection by
A trial court has a sua sponte duty to instruct the jury on any uncharged lesser offense that is necessarily included in a charged offense if there is substantial evidence from which the jury could reasonably conclude that the dеfendant committed the lesser included offense but not the charged offense. (People v. Smith (2017) 57 Cal.4th 232, 244.) “To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404, quoting People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.) Once instructed on a lesser included offense, a jury may find defendant guilty of that offense, but only after it has returned an acquittal on the charged offense. (People v. Kurtzman (1988) 46 Cal.3d 322, 330 (Kurtzman); see
We agree with the Attorney General that, consistent with section 459.5(b), a prosecutor may charge shoplifting with an allegation that “the value of the property takеn does not exceed $950,” such that petty theft is an uncharged lesser included offense of shoplifting under the accusatory pleading test. In accord with the principles governing instructions on lesser included offenses, if shoplifting is so charged and if there is substantial evidence the defendant has committed petty theft but not shoplifting, the trial court must instruct the jury on petty theft, and the jury must return an acquittal on the shoplifting charge before it may return a verdict on petty theft. If defendant is convicted of shoplifting, he may not also be convicted of petty theft.
First, charging shoplifting with an allegation that “the value of the property taken does not exceed $950” neither requires nor permits prosecutors to allege facts extraneous to a shoplifting charge.8
Second, we find this practice to be consistent with the sеction 459.5(b)’s directive that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Italics added.) When there is substantial evidence from which a jury could reasonably conclude that a defendant committed an uncharged lesser offense that is necessarily included in the charged offense, the trial court is required to instruct the jury on the uncharged lesser included offense. Because lesser included offenses are not formally charged in separate counts of an accusatory pleading, we have consistently referred them as “uncharged” offenses. (See, e.g., People v. Eid (2014) 59 Cal.4th 650, 655, 656, 660; People v. Reed (2006) 38 Cal.4th 1224, 1227, 1229, 1231.)
Third, we reject defendant’s assertion that Proposition 47’s voters “made clear that they wanted the jury [to be] presented with an all-or-nothing choice”—shoplifting or acquittal. As mentioned above, we believe the voters wanted to prevent prosecutors from circumventing their determination that shoplifting conduct deserves a single misdemeanor conviction by charging and convicting such conduct as felony burglary, felony theft, both shoplifting and theft, or both burglary and theft. But nothing indicates that the voters wanted to prevent the jury from considering whether a defendant committed petty theft when the evidence would support a finding that the defendant committed petty theft but not shoplifting. If the jury were precluded from considering petty theft as an uncharged lesser included offense of shoplifting, prosecutors would be left with no way to avoid the unintended consequence that a defendant who commits theft may escape criminal liability simply because the jury entertains a reasonable doubt about one of shoplifting’s elements. Although Proposition 47 was intended to reduce penalties for “nonserious, nonviolent crimes like petty theft,” nothing suggests that the measure was intended to eliminate the penalties altogether. (Gonzales, supra, 2 Cal.5th at p. 870, quoting Voter Information Guide, text of Prop. 47, § 3, subd. (3), p. 70; see
Finally, when construing voter initiatives, we presume the voters were “aware of existing laws and the judicial construction thereof.” (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Therefore, we presume Proposition 47’s voters were aware of the principles discussed above that would permit a defendant charged with shoplifting to be convicted of an uncharged lesser included offense of petty theft when the evidence would support a finding that defendant committed petty theft but not shoplifting.
C. Charging Theft Instead of Shoplifting
Next, we turn to the Attorney General’s argument that the prosecutor could have responded to an objection by amending the information to charge solely theft.
The Attorney General does not dispute that section 459.5(b)’s first directive—“
As the Attorney General observed in the court below, “ ‘[S]ection 459.5 presumes that it will be clear whether a defendant’s conduct constitutes shoplifting or not, before the prosecutor makes the charging decision.’ ” (Lopez, supra, 26 Cal.App.5th at p. 389.) But this presumption does not apply universally, as the facts of this case demonstrate. If defendant possessed the intent to commit theft upon entering the Walmart store, he committed both shoplifting and petty theft; if he formed the intent once inside, he committed рetty theft only. Consider another example: a defendant enters a pawn shop with the
Once again, Proposition 47’s voters likely intended section 459.5(b)’s charging directives to prevent prosecutors from circumventing their determination that shoplifting conduct deserves a single misdemeanor conviction by charging and convicting such conduct as felony burglary, felony theft, both shoplifting and theft, or both burglary and theft. Therefore, we presume the voters generally would have preferred prosecutors to charge shoplifting instead of burglary or theft when a defendant may have committed shoplifting. That way, the jury generally will have the opportunity to decide whether a defendant actually committed an “act of shoplifting” and, if so, the defendant will be convicted of shoplifting only.
Accordingly, we conclude that, as a general rule, section 459.5(b) prohibits a prosecutor from charging burglary or theft instead of shoplifting when there is probable cause that a defendant has committed shoplifting of the same property. Therefore, in the common situation where a defendant is apprehended leaving a store with unpurchased merchandise worth $950 or less, the prosecutor may charge shoplifting only—
We also agree with the Attorney General, however, that there are exceptions to this general rule. Even when there is probable cause that a defendant has committed shoplifting, section 459.5(b) does not prevent a prosecutor from charging burglary or theft instead of shoplifting—initially, or in an amendment to the accusatory pleading within the constraints of section 1009—if the prosecutor can articulate a theory supported by the evidence under which the defendant would be guilty of the charged offense but not shoplifting.9 In these cases, seсtion 459.5(b)’s prohibition on “alternate charging” does not apply. (Gonzales, supra, 2 Cal.5th at p. 896.)
To illustrate these points, we use the facts of this case. The asset protection officer observed defendant place items into
Although Proposition 47’s voters intended to limit prosecutorial charging discretion, we do not believe they wanted to require a prosecutor to charge shoplifting instead of burglary or theft when the evidence would support a theory that defendant committed burglary or theft but not shoplifting. As
A contrary rule—one that would require a prosecutor to charge shoplifting instead of burglary or theft in these situations—raises ethical concerns and constitutional doubts. As the Attorney General emphasizes, a prosecutor has a duty “to charge only those offenses she believes she can prove beyond a reasonable doubt.” (See People v. Catlin (2001) 26 Cal.4th 81, 109, quoting People v. Dunn–Gonzalez (1996) 47 Cal.App.4th 899, 914–915 [“A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be рrosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.”].) And, as we have recognized, “[P]rosecuting 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 prosecution’s authority in this regard is founded, among other things, on the principle of separation of powers, and
As we explain below, our interpretation of the statutory scheme is faithful to the voters’ intent that an act of shoplifting deserves a single misdemeanor conviction whenever a defendant does not have any of the prior convictions specified in Proposition 47.
The general rule—that a prosecutor may charge only shoplifting when there is probable cause that the defendant has committed shoplifting—is subject to just a few narrow exceptions. First, where there is probable cause to support charges of shoplifting and second degree burglary (
Finally, where there is probable cause to support charges of shoplifting and petty theft (
III. CONCLUSION
We agree with Court of Appeal’s conclusion that defendant was charged in violation of section 459.5(b)’s prohibition on charging a person with shoрlifting and theft of the same property. (Lopez, supra, 26 Cal.App.5th at p. 388.) But we disagree with the court’s holding that section 459.5(b) would have permitted the prosecutor to charge defendant with shoplifting and theft in the alternative. Otherwise, we express no view on the proper resolution of defendant’s claims.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.