People v. Colbert

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
MARK ANTHONY COLBERT,
Defendant and Appellant.

S238954

Sixth Appellate District
H042499

Santa Clara County Superior Court
206805

January 24, 2019

Justice Kruger authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Tangeman* concurred.

*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
 PEOPLE v. COLBERT
S238954

Opinion of the Court by Kruger, J.

In approving Proposition 47, the 2014 voter initiative that
reclassified certain theft-related and drug-related felonies as
misdemeanors, voters created a new misdemeanor offense called
“shoplifting.” (Pen. Code, § 459.5.) Shoplifting is defined as the
act of entering a commercial establishment with intent to steal
property while the establishment is open during regular
business hours, where the value of the property taken or
intended to be taken is $950 or less—an act that had formerly
been punishable as felony burglary. (Ibid.; see id., § 459.) This
case presents a question concerning the line separating
shoplifting from burglary: If a person enters a store during
regular business hours but then proceeds to a private back office
with intent to steal therefrom, which crime has he or she
committed? We conclude that entering an interior room that is
objectively identifiable as off-limits to the public with intent to
steal therefrom is not shoplifting, but instead remains
punishable as burglary.
I.
On four separate occasions in 1996 and 1997, defendant
Mark Anthony Colbert, acting with an accomplice, stole money
from the back offices of various convenience stores and a gas
station. On each occasion, defendant and his accomplice
employed the same modus operandi. They entered the stores
during regular business hours, and while one of them distracted
 PEOPLE v. COLBERT
Opinion of the Court by Kruger, J.

the store clerk by purchasing or redeeming lottery tickets, the
other either slipped or broke into the back offices to steal money
he found there.
Defendant was charged with four counts of second degree
burglary, an alternative felony-misdemeanor (also known as a
“wobbler”) (Pen. Code, §§ 459, 460, subd. (b)). For the first three
counts, the People alleged that defendant and his accomplice
took, respectively, $300, $318, and $3,000 in cash; no money was
taken in count 4, because the accomplice was confronted by an
employee while in the back office. A jury found defendant guilty
and he was sentenced to an aggregate prison term of two years
and eight months, to run consecutively to a six-year prison term
for an unrelated robbery.
In 2014, California voters approved Proposition 47, the
Safe Neighborhoods and Schools Act, which reclassified as
misdemeanors certain drug-related and theft-related offenses
that had previously been classified as felonies or wobblers. As
relevant here, Proposition 47 added a section to the Penal Code
creating a new offense of misdemeanor shoplifting. Section
459.5, subdivision (a) provides, in pertinent part:
“Notwithstanding Section 459 [the burglary statute], 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.” With certain
exceptions not relevant here, the offense is punishable as a

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Opinion of the Court by Kruger, J.

misdemeanor. (Pen. Code, § 459.5, subd. (a).)1 Subdivision (b)
limits a prosecutor’s discretion in charging: “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.” The
effect of the provision is to reclassify as misdemeanors certain
crimes that were formerly punishable as felony burglary.
Proposition 47 also created a mechanism for extending its
benefits to criminal defendants who, like defendant in this case,
had been sentenced before the initiative’s passage. As relevant
here, Penal Code section 1170.18, subdivision (f) provides: “A
person who has completed his or her sentence for a conviction
. . . of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court
that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as
misdemeanors.” If the offender meets the statutory criteria,
“the court shall designate the felony offense or offenses as a
misdemeanor.” (Id., § 1170.18, subd. (g).)2

1
The statute provides that a person who has one or more
prior convictions for one of the particularly serious or violent
felonies colloquially known as “super strikes” (see Pen. Code,
§ 667, subd. (e)(2)(C)(iv)) or who has been convicted of a crime
that requires sex offender registration (id., § 290, subd. (c)) is
subject to the greater penalties set out in Penal Code section
1170, subdivision (h). (Id., § 459.5, subd. (a).)
2
This provision once again excludes persons convicted of
one or more “super strikes” (Pen. Code, § 667, subd. (e)(2)(C)(iv))
and persons convicted of one or more crimes that require sex
offender registration (id., § 290, subd. (c)). (Id., § 1170.18, subd.
(i).) Neither exclusion is at issue here.

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Opinion of the Court by Kruger, J.

In 2015, defendant petitioned the superior court to
redesignate two of his four felony burglary convictions as
shoplifting misdemeanors under Penal Code section 1170.18,
subdivision (f). Defendant failed to specify which two
convictions, precisely, he sought to redesignate, but the omission
made no difference; the trial court denied the petition on the
ground that none of his burglary convictions was eligible for
redesignation in any event. The court listed three grounds for
its conclusion: (1) the “record reflects that each offense was
based upon entry into a private area office area [sic] and not a
commercial establishment that was open during business
hours”; (2) the amount taken in count 3 exceeded the statutory
maximum of $9503; and (3) defendant employed the same modus
operandi in all counts and therefore the theft of more than
$3,000 in count 3 “strongly suggests that the amount intended
to be taken in each case exceeded $950.”
The Court of Appeal affirmed on the first ground only.4
The court held that when defendant entered the private offices

3
The superior court’s order mistakenly identifies count 2 as
the count in which the value of property taken exceeds $950.
4
The Court of Appeal also briefly addressed the trial court’s
third alternative ground for denial—that is, that the use of the
same modus operandi in each incident suggested that defendant
intended to take more than $950 in each theft. The court
rejected the argument, explaining that the record neither
demonstrated that the commercial establishments routinely
stored more than $950 in their back offices nor that defendant
held such belief; the court therefore concluded that the amount
taken in each theft was a matter of circumstance, as opposed to
intent. The Attorney General has not asked us to reconsider
that conclusion.

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Opinion of the Court by Kruger, J.

at issue, he had exited the part of the “commercial
establishment” covered by Penal Code section 459.5 (section
459.5) and entered a “discrete area where [his] thefts could not
be considered shoplifting.” The court reasoned that the term
“ ‘commercial establishment’ ” generally refers to an
establishment that is “ ‘primarily engaged in commerce, that is,
the buying and selling of goods or services.’ ” The court
concluded that the back offices did not meet this description; by
contrast to the areas in which the general public is invited to
peruse the goods on display, the back offices were “not areas in
which goods were bought and sold” but were rather “areas off-
limits to the general public.” Defendant’s sole intent, the court
observed, was to steal from these private rooms; “otherwise he
and his accomplice would have remained in the area where . . .
goods were displayed rather than intruding into the private
areas where the employees were likely to keep their personal
belongings, such as purses and wallets, and where the business
was likely to store larger amounts of cash.”
Justice Rushing dissented. In his view, the statute’s plain
language compels the conclusion that defendant committed
shoplifting by entering the stores with intent to commit larceny.
He opined that nonpublic areas form part of the “commercial
establishment” covered by the shoplifting statute and thus

Defendant, for his part, does not dispute that the
conviction stemming from count 3 involved theft of more than
$950 and is therefore ineligible for redesignation as a
misdemeanor under Penal Code sections 459.5 and 1170.18,
subdivision (f). We therefore limit our consideration to the
remaining three burglary convictions.

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Opinion of the Court by Kruger, J.

disagreed with the majority that defendant exited the
establishment by venturing into a nonpublic interior room.
As the dissenting opinion observed, the majority opinion
created a conflict with another Proposition 47 case, People v.
Hallam (2016) 3 Cal.App.5th 905. In that case, the defendant
had been convicted of second degree burglary after he entered a
computer store through a back door and stole an air compressor
from an employee restroom. (Although the defendant had
previously used the restroom with the permission of store
employees, he later returned, uninvited.) The Court of Appeal
held the defendant’s conduct constituted shoplifting under
section 459.5 and the trial court therefore should have granted
the defendant’s petition to redesignate the burglary conviction
as a misdemeanor. (Hallam, at p. 908; see id. at p. 913.)
We granted defendant’s petition for review to resolve the
conflict about the application of section 459.5 to offenses
involving entries into interior rooms that are off-limits to the
public with intent to steal therefrom.
II.
A.
For more than a century before Proposition 47, entry into
a store with intent to steal was understood to constitute
burglary under California law, regardless of whether the
defendant entered the store during its regular business hours.
(People v. Gonzales (2017) 2 Cal.5th 858, 872 (Gonzales); see
People v. Barry (1892) 94 Cal. 481, 483 (Barry).) The reasons for
this understanding lie in the early history of California’s
burglary law. At common law, the crime of burglary had been
understood to require (among other things) a breaking and
entering with intent to commit larceny or any felony. When the

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California Legislature enacted the present-day burglary statute
in 1872, however, it dispensed with the common law
requirement of a breaking, instead defining burglary simply as
entry into a specified structure (including a “store”), a room, or
a vehicle with intent to commit larceny or any felony. (Pen.
Code, § 459; see People v. Gauze (1975) 15 Cal.3d 709, 713.) Of
course, as this court would later confirm, the burglary statute
did preserve the basic principle underlying the common law
breaking requirement: “that in order for burglary to occur, ‘The
entry must be without consent.’ ” (Gauze, at p. 713; see id. at
pp. 713–714 [“ ‘If the possessor actually invites the defendant,
or actively assists in the entrance, e.g., by opening a door, there
is no burglary.’ ”].) But in Barry, at page 483, this court
interpreted the burglary statute to apply to a thief’s entry into
a store during regular business hours, despite the fact the owner
had opened the door to the general consuming public. The court
reasoned: “[A] party who enters with the intention to commit a
felony enters without an invitation. He is not one of the public
invited, nor is he entitled to enter.” (Ibid.) The effect of this
holding was to extend the coverage of the burglary statute to a
class of offenses that might colloquially be described as “simple
shoplifting” (Descamps v. United States (2013) 570 U.S. 254,
264), rendering them punishable as felonies (Pen. Code, §§ 459,
460, 461, subd. (b)).
Proposition 47 changed the law by defining a new crime of
misdemeanor shoplifting and, in effect, “carving out” this “lesser
crime” from the “preexisting felony.” (People v. Martinez (2018)
4 Cal.5th 647, 651.) The statute provides that any act involving
“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

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Opinion of the Court by Kruger, J.

intended to be taken does not exceed [$950]” is punishable only
as misdemeanor shoplifting, not burglary. (§ 459.5, subds. (a) &
(b); see Gonzales, supra, 2 Cal.5th at p. 876 [“A defendant must
be charged only with shoplifting when the statute applies. It
expressly prohibits alternate charging and ensures only
misdemeanor treatment for the underlying described
conduct.”].) “Any other entry into a commercial establishment
with intent to commit larceny” remains punishable as burglary.
(§ 459.5, subd. (a).)
Both parties in this case agree that defendant entered a
“commercial establishment” when he first entered the stores
from which he stole. Defendant argues that is the end of the
story, because the shoplifting statute draws no distinction
between entering a store with intent to steal property from
areas open to the public and entering a private back office with
intent to steal property therefrom. The Attorney General
argues, and the Court of Appeal agreed, that the shoplifting
statute applies to entries with intent to steal from commercial
establishments open to the public during regular business hours
only to the extent the establishments are open to the public
during those hours. In the Attorney General’s view, if a
defendant enters a commercial establishment open during
regular business hours, but then proceeds to enter an interior
room that is off-limits to the public with intent to steal property
there, the crime is punishable as burglary and not shoplifting.
B.
This question concerning the meaning of Proposition 47 is
a matter of statutory interpretation, and we employ familiar
principles to resolve it. (See Robert L. v. Superior Court (2003)
30 Cal.4th 894, 900–901.) We begin by examining the words of

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Opinion of the Court by Kruger, J.

the statute, affording them “their ordinary and usual meaning
and viewing them in their statutory context” (Fluor Corp. v.
Superior Court (2015) 61 Cal.4th 1175, 1198), for “ ‘if the
statutory language is not ambiguous, then . . . the plain
meaning of the language governs’ ” (People v. Montes (2003) 31
Cal.4th 350, 356). Defendant argues that the statutory text
clearly resolves this question in his favor—and indeed, suggests
we have already said as much in a prior case. He is wrong on
both counts.
The notion that our precedent resolves the question here
is easily disposed of. Defendant points to our decision in
Gonzales, in which we interpreted section 459.5 to apply to an
entry into a commercial establishment with intent to commit
forms of theft other than larceny, including theft by false
pretenses. (Gonzales, supra, 2 Cal.5th at p. 862.) In so holding,
we rejected the Attorney General’s argument that it “would be
absurd for the shoplifting statute to encompass any form of theft
other than larceny of openly displayed merchandise” because, if
it did, the statute “would require a person to be prosecuted for
shoplifting even if he enters a commercial establishment to
commit a theft from an area of the store closed to the public, ‘like
a back office or a private locker room . . . .’ ” (Id. at p. 873.) Our
rejection of the Attorney General’s argument, however, was
cabined to the issue before us. Without addressing the premise
of the Attorney General’s argument about the statute’s
application to back offices, we explained that section 459.5, by
its text, is not limited to theft of openly displayed merchandise.
While another statute, Penal Code section 490.5, prescribes
penalties for “petty theft involving merchandise taken from a
merchant’s premises” (id., subd. (a)), section 459.5 applies to
entries with intent to commit theft of “property” more broadly.

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Opinion of the Court by Kruger, J.

(See Gonzales, at p. 874.) We had no occasion to decide whether
and how section 459.5 applies to entries into back offices or other
private interior rooms with intent to steal property therefrom.
Turning back to the statutory text, defendant points to
section 459.5’s unadorned reference to entering a “commercial
establishment” during regular business hours to argue that the
plain language of section 459.5 applies to his criminal conduct.
He argues that the shoplifting crime was complete once he first
entered the stores in question with intent to steal money from
the private back offices; in his view, the later entry into these
interior offices to steal the money has no legal significance other
than supplying evidence that he entered the stores with an
intent to steal.
We agree it is possible to read the text of section 459.5, in
isolation, as broadly applying to an entry into a commercial
establishment with intent to steal from a private back office or
other off-limits interior room. In ordinary speech, as defendant
emphasizes, we would generally refer to a private interior room
as part of the overarching “commercial establishment.” And
while intruding into a back office to steal an employee’s personal
belongings is no one’s idea of “shoplifting,” that alone cannot be
dispositive, as Gonzales makes clear. We there explained:
“[S]ection 459.5 provides a specific definition of the term
‘shoplifting’ ” that clearly deviates in certain respects from the
colloquial understanding of the term; where the two diverge, it
is the statutory definition, not the colloquial understanding,
that must control. (Gonzales, supra, 2 Cal.5th at p. 871; see id.
at pp. 873–874.)
Still, defendant’s proposed interpretation of section 459.5
is not clearly correct. While it may be more consistent with

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Opinion of the Court by Kruger, J.

casual usage to read “commercial establishment” to refer to a
store’s entire physical plant, it is also possible to read section
459.5, in context, in the more specialized way the Attorney
General proposes. Under that reading, the term “commercial
establishment” would refer only to that portion of the physical
plant that is used for “commerce”—a term both parties
understand to mean the buying and selling of goods—and to
exclude private interior rooms in which no goods or services are
sold to the public.
The Attorney General’s narrower reading has several
points in its favor. It is certainly more consistent with the
ordinary understanding of “shoplifting.” (Cf., e.g., Leocal v.
Ashcroft (2004) 543 U.S. 1, 11 [resolving interpretive dispute
about defined term by reference to the term’s ordinary
meaning].) But more importantly, the reading fits with the
surrounding language of section 459.5. The statute limits
shoplifting to those entries into a commercial establishment
made “while that establishment is open during regular business
hours.” (§ 459.5, subd. (a).) As the Attorney General notes, this
language evinces some intent to limit the scope of shoplifting
based on the extent to which the establishment is “open” to the
public—which is to say, to the parameters of a commercial
establishment’s invitation to enter to peruse the goods and
services on offer.
And perhaps more importantly yet, this reading makes
sense given the history of the burglary statute and its judicial
construction. (See Gonzales, supra, 2 Cal.5th at p. 869
[interpreting section 459.5 in light of similar considerations].)
The burglary statute, by its terms, applies both to entries to
structures, including stores, and to entries to rooms within those
structures. (Pen. Code, § 459.) Interpreting that language,
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Opinion of the Court by Kruger, J.

California courts have long held that a burglary conviction may
be based on the entry into a room within a structure, even
though the defendant’s initial entry into the structure may not
itself have been punishable as burglary. In People v. Young
(1884) 65 Cal. 225, for example, the defendant entered a public
railway station, then, from the public waiting room, proceeded
to enter a ticket office with intent to steal therefrom. We
rejected the theory that section 459 applied only if the defendant
formed the intent to steal when he first entered the railway
station; it was enough if the defendant formed an intent to steal
before he crossed from the waiting room into the ticket office.
This holding, as we would later explain, “reflected the prevailing
common law understanding that entry from inside a structure
into a room within that structure could constitute a burglary.”
(People v. Sparks (2002) 28 Cal.4th 71, 80.) For support, Young
cited Blackstone, who had explained that a person who entered
a room through an open door ordinarily could not be convicted
of a burglary—but the same person could be convicted of
burglary if, once inside, that person broke into an interior room
within the structure. (Young, at p. 226, citing 4 Blackstone,
Commentaries 226 (Blackstone); see Sparks, at p. 80, fn. 14.)
Applying the same set of principles, a long line of
California cases have upheld burglary convictions based on
entries with the requisite intent into interior rooms within
larger structures, including stores and restaurants. (See, e.g.,
People v. Sparks, supra, 28 Cal.4th at pp. 87–88 [trial court
correctly instructed jury that entry into victim’s bedroom with
intent to commit rape constituted burglary]; People v. Davis
(1959) 175 Cal.App.2d 365 [burglary conviction may be based on
entry into closed office within a service station]; People v.
Gaytan (1940) 38 Cal.App.2d 83, 87 [burglary conviction may be

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Opinion of the Court by Kruger, J.

based on entry into a storage room of a cafe with requisite
felonious intent].)
This history supports a reading of section 459.5 that
distinguishes between initial entries into stores and subsequent
entries into certain interior rooms. But that is not all; the
history also lends support to the specific distinction we are
asked here to adopt, between entering a store while it is open
during regular business hours and entering an interior room
within the store that is off-limits to the public. The reason for
this particular distinction lies in the same general principle
articulated by Blackstone and reflected in Young: Just as the
common law of burglary was not prepared to punish a person
who walked through an open door, neither was it prepared to
punish a person who walked through a door at the express
invitation of the owner or occupant. (See People v. Gauze, supra,
15 Cal.3d at pp. 713–714; LaFave, Substantive Criminal Law
(3d ed. 2018) § 21.1(a), p. 269.) But the law was prepared to
punish the person who exceeded the scope of his or her invitation
by entering an internal room without consent. A person might
be authorized to enter a building, but “[w]hen the authority
granted was restricted to certain portions of the structure or
times of day, there was a breaking”—and hence a burglary—
“when the structure was opened in violation of these
restrictions.” (LaFave, at p. 269; see 4 Blackstone, supra, at
pp. 226–227 [explaining that servant commits burglary if he
enters his master’s chamber without authorization and with
felonious design]; see also, e.g., State v. Rio (1951) 38 Wn.2d 446
[citing authorities for proposition that at common law burglary
may be committed by house guest or invitee who, with the
requisite intent, enters a room that he has no right to enter].)
As translated to this context, the common law approach would

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mean that (1) a customer invited to enter a store or other place
where goods and services are sold could not be convicted of
burglary, but (2) a person who exceeded the scope of the
invitation by venturing into off-limits interior rooms would
commit burglary if he or she did so with the requisite unlawful
intent.
California law departed from this common law approach
in certain respects in Barry, supra, 94 Cal. at page 483, which
held that a customer who enters a public place with intent to
steal can, in effect, consider himself uninvited. But our cases
have nevertheless reaffirmed the continuing validity of the
underlying principles. A burglary under Penal Code section 459
occurs when a defendant with the requisite intent enters a
structure where he or she has no right to be, and a person has
no right to be in a structure—or in a room within the structure
(People v. Sparks, supra, 28 Cal.4th at pp. 81, 87)—without the
effective consent of the owner or occupant. (See People v. Gauze,
supra, 15 Cal.3d at p. 714.)
Because the whole point of section 459.5 is to redefine a
class of burglary offenses as shoplifting, the history of the
burglary statute and its judicial construction alone cannot be
dispositive of the question here: whether an offense involving
an entry into an off-limits room within a store remains
punishable as burglary. The history does, however, leave us
with two possible conclusions about the meaning of section
459.5. It is possible that section 459.5 does not speak more
clearly to the problem of entries into off-limits interior rooms
because it is designed to revoke the traditional distinction
between structures into which a defendant has been invited and
internal rooms to which he or she has not been invited.
Alternatively, it is possible that section 459.5 does not speak
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more clearly to the issue because it simply presumes the
continuing validity of the traditional distinction. A closer
examination of the purposes underlying the burglary statute
and the changes made by section 459.5 persuades us that the
second option is the correct one.
A primary purpose of the burglary law is “ ‘ “to forestall
the germination of a situation dangerous to personal safety” ’ ”
by punishing entries into one of the structures listed in Penal
Code section 459 with felonious intent. (People v. Garcia (2016)
62 Cal.4th 1116, 1138, quoting People v. Gauze, supra, 15 Cal.3d
at p. 715.) Such unauthorized entries present “ ‘ “the danger
that the intruder will harm the occupants in attempting to
perpetrate the intended crime or to escape and the danger that
the occupants will in anger or panic react violently to the
invasion, thereby inviting more violence.” ’ ” (Garcia, at
p. 1138.) The burglary statute is thus designed “to protect
against the increased risk to personal safety that attends the
commission of a felony” in such locations, as well as “to prevent
the invasion of an owner’s or occupant’s possessory interest in a
space against ‘a person who has no right to be in the building.’ ”
(Id. at p. 1125.)
In enacting the shoplifting statute as part of Proposition
47, the electorate signaled that these interests do not apply in
the same way when a person intends to steal property in a place
where he or she has been invited to peruse the goods and
services that are on offer. Store owners and employees do not,
of course, consent to the theft of property. But the core of the
crime of burglary is not theft but physical intrusion, and owners
and employees have every reason to expect that members of the
public will enter where they have been invited.

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But it is different when members of the public venture into
private back offices, employee locker rooms, or other interior
rooms that are objectively identifiable as off-limits. The nature
of the intrusion, and the potential risk to personal safety, when
a person exceeds the physical scope of his or her invitation to
enter are not dissimilar from those associated with exceeding
the temporal scope of the invitation by entering after regular
business hours—conduct that clearly remains punishable as
burglary after the enactment of section 459.5. (§ 459.5, subd.
(a).)
In instituting reduced penalties for less serious theft
offenses under Proposition 47, the electorate evinced no intent
to alter the burglary law’s protection against this sort of
invasion of security and property interests.5 The ballot
materials, which we may consider as part of our inquiry (People
v. Mentch (2008) 45 Cal.4th 274, 282), described shoplifting
simply as “a type of petty theft.” (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.)
The materials made no mention of either of the recognized
harms of burglary: the element of intrusion and the
accompanying risks to personal safety. Nothing in the ballot
materials—much less the enacted text of the statute—provides
any indication that the voters who passed Proposition 47
intended to roll back the law’s protection for employees in off-
limits interior rooms, such as private back offices, where they
are likely to be “at their most vulnerable.” (People v. Garcia,
supra, 62 Cal.4th at p. 1125.)

5
People v. Hallam, supra, 3 Cal.App.5th 905 is disapproved
insofar as it is inconsistent with this opinion.

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For these reasons, we conclude that entering an interior
room that is objectively identifiable as off-limits to the public
with intent to steal therefrom is not punishable as shoplifting
under section 459.5, but instead remains punishable as
burglary. This interpretation of section 459.5 makes it
unnecessary for us to consider the Attorney General’s
alternative argument that defendant’s entries into the back
offices at issue are punishable as burglary under the rule of
People v. Garcia, supra, 62 Cal.4th 1116. In that case, we
interpreted Penal Code section 459 to permit multiple burglary
convictions based on a defendant’s initial entry into a structure
and a subsequent entry into a room within the structure if “the
subsequently entered room provides a separate and objectively
reasonable expectation of protection from intrusion relative to
the larger structure.” (Garcia, at p. 1120.) For purposes of
identifying the line dividing shoplifting from burglary after
Proposition 47, we conclude it is enough that defendant entered
an interior room objectively identifiable as off-limits to the
public. We need not decide whether entries into these rooms
would also have supported multiple burglary convictions under
the distinct test articulated in Garcia.
C.
In this case it is undisputed that defendant’s burglary
convictions were based on entries into back offices that were
objectively identifiable as off-limits to the public, with an intent
to steal therefrom. Had Proposition 47 been in effect at the time
of defendant’s offenses, it would have made no difference; he
would still be guilty of burglary and not shoplifting. (See Pen.
Code, §§ 459.5, 1170.18, subd. (f).) We conclude that defendant
therefore is not entitled to redesignate his burglary convictions
as misdemeanors under Proposition 47.
17
 PEOPLE v. COLBERT
Opinion of the Court by Kruger, J.

III.
The judgment of the Court of Appeal is affirmed.

KRUGER, J.

We Concur:
CANTIL-SAKAUYE , C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
TANGEMAN, J.*

*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Colbert
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 5 Cal.App.5th 385
Rehearing Granted

__________________________________________________________________________________

Opinion No. S238954
Date Filed: January 24, 2019
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Linda R. Clark

__________________________________________________________________________________

Counsel:

Kimberly Taylor, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, René A. Chacón, Seth K. Schalit and Victoria
Ratnikova, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kimberly Taylor
P.O. Box 1123
Alameda, CA 94501
(510) 747-8488

Victoria Ratnikova
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5830