People v. Gonzales

Filed 3/23/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S231171
v. )
) Ct.App. 4/1 D067554
GIOVANNI GONZALES, )
) Imperial County
Defendant and Appellant. ) Super. Ct. No. JCF32479
____________________________________)

In 2014, Proposition 47 created the new crime of “shoplifting,” defined as
entering an open commercial establishment during regular business hours with the
intent to commit “larceny” of property worth $950 or less. (Pen. Code, § 459.5,
subd. (a).) This provision is related to the general burglary statute, which also
applies to an entry with intent to commit “larceny” or any felony. (Pen. Code,
§ 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a;
see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the
burglary statute included an entry with intent to commit nonlarcenous theft. Here
we hold the electorate similarly intended that the shoplifting statute apply to an
entry to commit a nonlarcenous theft. Thus, defendant‟s act of entering a bank to
cash a stolen check for less than $950, traditionally regarded as a theft by false
pretenses rather than larceny, now constitutes shoplifting under the statute.
Defendant may properly petition for misdemeanor resentencing under Penal Code
section 1170.18. We reverse the Court of Appeal‟s contrary judgment.

SEE DISSENTING OPINION
 I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, defendant Giovanni Gonzales visited his grandmother,
Josefa Valencia, and stole her checkbook. Twice during that same week, he
entered a bank and each time cashed one of her checks made out to him for $125.
Valencia did not sign the checks or authorize defendant to cash them.
Defendant was charged with the felonies of second degree burglary and
forgery.1 He pled guilty to burglary, the forgery count was dismissed, and he was
placed on probation for three years. He subsequently admitted violating probation
and probation was revoked and reinstated. When a second probation violation was
alleged, defendant petitioned for recall of his sentence and resentencing under
Penal Code section 1170.18. The trial court denied his petition and the Court of
Appeal affirmed.2
II. DISCUSSION

A. Legal Background

1. The Safe Neighborhoods and Schools Act
In 2014, the electorate passed initiative measure Proposition 47, known as
the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain
theft and drug offenses by amending existing statutes. (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74 (Voter Information Guide).)
The Act also added several new provisions, including Penal Code3 section 459.5,
which created the crime of shoplifting. Subdivision (a) provides:
“Notwithstanding Section 459, shoplifting is defined as entering a commercial

1 Penal Code sections 459, 460, subdivision (a), 476.
2 Defendant then admitted the second violation. His probation was again
revoked and reinstated.
3 Subsequent statutory references are to the Penal Code unless noted.

2
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 is punishable as a misdemeanor unless the defendant has previously
been convicted of a specified offense. (§ 459.5, subd. (a).) Section 459.5,
subdivision (b) contains an explicit limitation on 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.”
Section 1170.18 now permits a defendant serving a sentence for one of the
enumerated theft or drug offenses to petition for resentencing under the new, more
lenient, provisions.4 If the offense committed by an eligible defendant5 would
have been a misdemeanor under the Act, resentencing is required unless “the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) A person
who has already completed a felony sentence may petition to have his conviction
designated a misdemeanor. (§ 1170.18, subds. (f), (g).)

4 Section 1170.18, subdivision (a) provides: “A person who, on November
5, 2014, was 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 the act that
added this section . . . had this act been in effect at the time of the offense may
petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with Sections
11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,
476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended
or added by this act.”
5 The Act excludes defendants who have suffered a prior conviction for an
enumerated offense. (§ 1170.18, subd. (i).)

3
 Defendant argued that his conduct would have constituted shoplifting under
section 459.5 because he entered a commercial establishment during regular
business hours with intent to take less than $950. (§ 459.5, subd. (a).) The
prosecution countered that defendant‟s conduct did not constitute shoplifting
because he did not enter the bank with intent to commit larceny but, instead, to
pass forged checks, which constituted a theft by false pretenses. This argument
rests on a distinction between different types of theft.

2. Theft Offenses and Their Consolidation
“Britain‟s 18th century division of theft into the three separate crimes of
larceny, false pretenses, and embezzlement made its way into the early criminal
laws of the American states.” (People v. Williams (2013) 57 Cal.4th 776, 784
(Williams).) California‟s first Penal Code recognized these distinctions,
containing separate provisions for each type of theft. Former section 484 defined
larceny as “the felonious stealing, taking, carrying, leading, or driving away the
personal property of another.” (1872 Pen. Code, former § 484.) The crime of
larceny derived from the common law and required both a taking without the
property owner‟s consent and asportation of the property with the intent to
permanently deprive the owner of possession.6 (People v. Davis (1998) 19 Cal.4th
301, 305; Williams, at pp. 782-783.) Grand larceny was a felony; petit larceny, a
misdemeanor. (1872 Pen. Code, former §§ 487-490.)
Larceny was a crime against one‟s possession of property. By contrast,
theft by false pretenses required that a defendant not merely take possession, but
title as well. (Williams, supra, 57 Cal.4th at p. 784; see Ashley, supra, 42 Cal.2d

6 Larceny includes larceny by trick, which involves fraudulently acquiring
possession, but not title, of property. (Williams, supra, 57 Cal.4th at pp. 783-784;
People v. Ashley (1954) 42 Cal.2d 246, 258 (Ashley).)

4
at p. 258.) As originally enacted, section 532 applied, in part, to “[e]very person
who knowingly and designedly, by false or fraudulent representation or pretenses,
defrauds any other person of money or property . . . .” (1872 Pen. Code, former
§ 532.) Finally, embezzlement involves “an initial, lawful possession of the
victim‟s property, followed by its misappropriation.” (Williams, at p. 784.)
Section 503, unchanged since the original Penal Code, defines embezzlement as
“the fraudulent appropriation of property by a person to whom it has been
intrusted.”
The disaggregation of theft into different statutes created pleading
challenges. Prosecutors had to plead the correct type of theft corresponding with
the defendant‟s conduct, though “it was difficult at times to determine whether a
defendant had acquired title to the property, or merely possession, a distinction
separating theft by false pretenses from larceny by trick” or “whether a defendant,
clearly guilty of some theft offense, had committed embezzlement or larceny.”
(Williams, supra, 57 Cal.4th at p. 785.) To address this difficulty, the Legislature
amended section 484 in 1927 to define a general crime of “theft.” Theft was
defined expansively to include all the elements of larceny, false pretenses, and
embezzlement.7 The Legislature also enacted section 490a, stating that
“[w]herever any law or statute of this state refers to or mentions larceny,

7 The amended provision stated in relevant part: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of another
[larceny], or who shall fraudulently appropriate property which has been entrusted
to him [embezzlement], or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, labor, or
real or personal property [false pretenses] . . . is guilty of theft.” (Stats. 1927, ch.
619, § 1, p. 1046.) The Legislature additionally amended sections 486 to 490 to
change references to grand and petit “larceny” to grand and petty “theft.” (Stats.
1927, ch. 619, §§ 3-6, p. 1047.)

5
embezzlement, or stealing, said law or statute shall hereafter be read and
interpreted as if the word „theft‟ were substituted therefor.” (Stats. 1927, ch. 619,
§ 7, p. 1047, italics added.)8 This provision reflected the fact that the definition of
theft encompassed all three ways in which property could be unlawfully stolen.
“The purpose of the consolidation was to remove the technicalities that
existed in the pleading and proof of these crimes at common law. Indictments and
informations charging the crime of „theft‟ can now simply allege an „unlawful
taking.‟ [Citation.] Juries need no longer be concerned with the technical
differences between the several types of theft, and can return a general verdict of
guilty if they find that an „unlawful taking‟ has been proved.” (Ashley, supra, 42
Cal.2d at p. 258; see People v. Fewkes (1931) 214 Cal. 142, 149.) “The
amendment to section 484 . . . is designed not only to simplify procedure but also
to relieve the courts from difficult questions arising from the contention that the
evidence shows the commission of some other of these crimes than the one alleged
in the indictment or information, a contention upon which defendants may escape
just conviction solely because of the border line distinction existing between these
various crimes.” (People v. Myers (1929) 206 Cal. 480, 484 (Myers).) “The
elements of the several types of theft included within section 484 have not been
changed, however, and a judgment of conviction of theft, based on a general
verdict of guilty, can be sustained only if the evidence discloses the elements of
one of the consolidated offenses.” (Ashley, at p. 258; see Myers, at p. 483; see

8 The Legislature also amended sections 951, pertaining to the form of an
indictment or information, and 952, specifying the substantive requirements of a
charge, to ease the pleading requirements. (See Stats. 1927, chs. 612, 613, p.
1043.) Specifically as to theft, section 952 was amended to state that a charge
need only “allege that the defendant unlawfully took the property of another.”
(Stats. 1927, ch. 612, § 1, p. 1043.)

6
also People v. Nor Woods (1951) 37 Cal.2d 584, 586 (Nor Woods).) In other
words, the crime is called theft, but to prove its commission, the evidence must
establish that the property was stolen by larceny, false pretenses, or
embezzlement.9

3. Burglary and the Intent to Commit “Theft”
The original Penal Code defined burglary as an entry into a specified room,
structure, or craft “with intent to commit grand or petit larceny, or any felony.”
(1872 Pen. Code, former § 459.) The statute‟s reference to larceny remains
unaltered to this day.
Several cases have addressed the interplay between the burglary statute and
the consolidation of the theft offenses. In Myers, supra, 206 Cal. 480, the original
information charged that the defendant had entered with the intent to commit
larceny. The trial court, in recognition of section 490a, allowed the information to
be amended to reflect a charge of burglary with intent to commit theft. (Myers, at
pp. 481-482.) The defendant argued the amended information failed to state an
offense. He first asserted that larceny was no longer a crime in light of section
484‟s amendment to excise that term. Accordingly, entry into a building with
intent to commit larceny was also not criminal. Further, section 490a could not be
applied to replace “larceny” with “theft” in the burglary statute because section
459 was not reenacted after passage of section 490a. (Myers, at p. 483; see Cal.
Const., art. IV, § 9 [“A section of a statute may not be amended unless the section

9 The trial court must instruct on the theory of theft applicable based on the
evidence presented. (Cf. Judicial Council of Cal. Crim. Jury Instns. (2016) Bench
Notes to CALCRIM No. 1800, p. 1128.) However, the jury need not unanimously
agree on which type of theft a defendant has committed and “it is immaterial
whether or not they agreed as to the technical pigeonhole into which the theft fell.”
(Nor Woods, supra, 37 Cal.2d at p. 586.)

7
is re-enacted as amended.”]; The Gillette Co. v. Franchise Tax Bd. (2015) 62
Cal.4th 468, 483-484.)
The arguments were rejected. Myers observed that larceny continued to be
a crime under section 484 and “[a]ll former elements of this offense are
perpetuated and contained in section 484 as amended.” (Myers, supra, 206 Cal. at
p. 483.) Myers reasoned: “[T]he essence of section 490a is simply to effect a
change in nomenclature without disturbing the substance of any law. It is,
therefore, unimportant to dwell upon the contention that this section is ineffectual
to interpret the word „larceny‟ to mean „theft‟ in section 459 of the Penal Code
because of article IV, section [9], of the constitution, to the effect that the act
revised or section amended shall be re-enacted and published at length as revised
or amended. This would mean that a change of phraseology without changing the
meaning can be accomplished only by a republication of every statute wherein the
phrase appears. This, to our mind, is carrying the refinements of logic to the point
of absurdity.” (Id., at p. 485; see People v. Dwyer (1938) 24 Cal.App.2d 639, 641-
642.)
Myers also rejected the defendant‟s argument that “inasmuch as section 484
now has these three crimes included within it, by charging the intent to be that of
theft, the defendant is left without sufficient information as to which particular
brand of theft he is supposed to have intended by the felonious entry of the
building.” (Myers, supra, 206 Cal. at p. 485.) Myers reasoned no notice problem
would arise from the failure to specify the type of theft “for if the defendant is told
that he is charged with the felonious entry of a certain building, at a certain time,
with a certain intent, which particular subdivision of the crime he is guilty of does
not seem to be a matter that would prejudice his status . . . .” (Ibid.)
Later cases more expressly held that section 490a applied to the burglary
statute, replacing the term “larceny” with the broader term of “theft.” In People v.
8
Bayne (1934) 136 Cal.App. 341, the defendant contended there was a “fatal
variance” between the information, which charged burglary with intent to commit
theft, and the language of section 459. He argued that the term “theft” within the
meaning of section 484 included types of theft other than larceny. Bayne held that
“larceny” and “theft” were “made interchangeable” by section 490a, reasoning:
“The term „larceny,‟ as it is used in the definition of burglary appearing in section
459 of the Penal Code, is included within the term „theft‟ as it is defined in section
484 of the same Code. Burglary of the first degree is therefore accomplished by
entering a building in the night-time, with the intent to commit either petit or
grand theft, regardless of the value of the property sought to be stolen . . . .”10
(Bayne, at p. 348, italics added and omitted; see People v. Corral (1943) 60
Cal.App.2d 66, 70.)
People v. Dingle (1985) 174 Cal.App.3d 21 held that entry with intent to
commit a theft by false pretenses could support a burglary conviction. The theft in
question was the defendant‟s use of the victim‟s home phone to place a long-
distance call without her consent. The defendant argued that entry with intent to
commit this type of theft could not support a burglary conviction because it did not
constitute larceny. He urged that “only larceny will support the specific theft
element requirement of burglary.” (Id. at p. 30.) Dingle rejected the argument:
“Section 490a not only changed section 484 so that the word „larceny‟ formerly
used therein became superseded by the word „theft,‟ but plainly means that the
word „larceny‟ in section 459 shall now be read and interpreted as if the word
„theft‟ were substituted.” (Ibid.) It reasoned that the term “theft” embraces other
kinds of unlawful takings with elements different from the elements of common

10 The nighttime requirement has been deleted from the burglary statute. (See
Stats. 1982, ch. 1297, § 1, p. 4786.)

9
law larceny. “We believe the act of defrauding specified in section 502.7,
subdivision (a)(1) is a theft akin to false pretenses,”11 and an intent to commit that
offense is sufficient for burglary. (Ibid.; see People v. Kwok (1998) 63
Cal.App.4th 1236, 1248, fn. 5.)
Similarly, People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen) concluded
that the defendant could be convicted of burglary for entering a victim‟s house on
the pretense of purchasing property but intending to pay with a bad check.
Nguyen rejected the claim that only an intent to commit larceny would support a
burglary conviction. Noting the consolidation of the theft offenses and the
nomenclature change of section 490a, Nguyen reasoned “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, at p. 31.)
People v. Parson (2008) 44 Cal.4th 332, favorably cited Nguyen. Parson
rejected the defendant‟s argument that he could not have been convicted of
burglary if the evidence showed he entered the victim‟s home with intent to
defraud. Parson reasoned: “An intent to commit theft by a false pretense or a
false promise without the intent to perform will support a burglary conviction.
[Citation.] Consequently, we reject the contention that defendant could not have
been found guilty of burglary (or a burglary murder) for merely intending to „con‟
[the victim] out of money in the manner described . . . .” (Id. at p. 354, citing
Nguyen, supra, 40 Cal.App.4th at pp. 30-31.)

11 Section 502.7, subdivision (a)(1) criminalizes charging a telephone service
“to an existing telephone number or credit card number without the authority of
the subscriber thereto or the lawful holder thereof.”

10
 B. Section 490a Applies to Section 459.5
“The first principle of statutory construction requires us to interpret the
words of the statute themselves, giving them their ordinary meaning, and reading
them in the context of the statute (or, here, the initiative) as a whole. If the
language is unambiguous, there is no need for further construction. If, however,
the language is susceptible of more than one reasonable meaning, we may
consider the ballot summaries and arguments to determine how the voters
understood the ballot measure and what they intended in enacting it.” (In re
Tobacco II Cases (2009) 46 Cal.4th 298, 315.) “In construing constitutional and
statutory provisions, whether enacted by the Legislature or by initiative, the intent
of the enacting body is the paramount consideration.” (In re Lance W. (1985) 37
Cal.3d 873, 889 (Lance W.).)
The Attorney General argues that use of the term “larceny” in section
459.5, coupled with labeling the offense “shoplifting,” exhibited an intent by the
electorate to limit that offense to the “common understanding of shoplifting,”
which she characterizes as taking goods from a store. The argument fails in light
of the history of the burglary and theft statutes and their settled judicial
construction. The drafters of the Act clearly had burglary in mind when defining
“shoplifting.” Section 459.5 expressly mentions the burglary statute:
“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.”
(§ 459.5, subd. (a).)
That the shoplifting statute expressly mentions the burglary statute and uses
the same term, “larceny,” makes plain that the electorate intended “larceny” to

11
have the same meaning in both provisions. As noted, before the passage of
Proposition 47, courts had long construed that term to mean theft under the
mandate of section 490a. The electorate “is presumed to be aware of existing laws
and judicial construction thereof.” (Lance W., supra, 37 Cal.3d at p. 890, fn. 11.)
“ „ “It is a well-recognized rule of construction that after the courts have construed
the meaning of any particular word, or expression, and the legislature
subsequently undertakes to use these exact words in the same connection, the
presumption is almost irresistible that it used them in the precise and technical
sense which had been placed upon them by the courts.” ‟ ” (People v. Lopez
(2005) 34 Cal.4th 1002, 1007.) “ „ “This principle applies to legislation adopted
through the initiative process.” ‟ ” (People v. Lawrence (2000) 24 Cal.4th 219,
231.) That the language of section 459.5 refers to the general burglary statute and
imports the term “larceny” strongly suggests an intent that the term maintain its
same meaning in both provisions, including application of section 490a.
Section 490a provides: “Wherever any law or statute of this state refers to
or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter
be read and interpreted as if the word „theft‟ were substituted therefor.” (Italics
added.) Section 490a contains no exceptions. Nor does any part of the ballot
language accompanying the initiative indicate a desire to modify the express and
inclusive language of section 490a. Indeed, the ballot pamphlet explained that
“[t]his measure reduces certain nonserious and nonviolent property and drug
offenses from wobblers or felonies to misdemeanors.” (Voter Information Guide,
supra, analysis of Prop. 47 by Legis. Analyst, p. 35.) The pamphlet briefly
described the affected offenses, stating with respect to shoplifting: “Under current
law, shoplifting property worth $950 or less (a type of petty theft) is often a
misdemeanor. However, such crimes can also be charged as burglary, which is a
wobbler. Under this measure, shoplifting property worth $950 or less would
12
always be a misdemeanor and could not be charged as burglary.” (Ibid., italics
added.) Similarly, the pamphlet explained the reduction in sentence for check
forgery: “Under current law, it is a wobbler crime to forge a check of any amount.
Under this measure, forging a check worth $950 or less would always be a
misdemeanor, except that it would remain a wobbler crime if the offender
commits identity theft in connection with forging a check.” (Ibid., italics added;
see § 473, subd. (b).) Likewise as to the other property crimes described, the
pamphlet indicated the offenses would constitute misdemeanors if the value of the
property was no more than $950. (Voter Information Guide, analysis of Prop. 47
by Legis. Analyst, p. 35.)
As to the property crimes at issue, the focus of the ballot pamphlet was on
the value of the property, setting the threshold for felony treatment at $950. The
ballot pamphlet expressly states that shoplifting from a commercial establishment
and check forgery could not be charged as burglary and would “always” be
classified as misdemeanors when the value of property was $950 or less, unless an
express exception applied.
Our conclusion is also consistent with the electorate‟s stated reason for
enacting Proposition 47. “One of Proposition 47‟s primary purposes is to reduce
the number of nonviolent offenders in state prisons, thereby saving money and
focusing prison on offenders considered more serious under the terms of the
initiative.” (Harris v. Superior Court (2016) 1 Cal.5th 984, 992; see Voter
Information Guide, supra, text of Prop. 47, § 2, p. 70.) The Act also expressly
states an intent 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.” (Voter Information
Guide, text of Prop. 47, § 3, par. (3), p. 70.) These stated purposes undermine the
People‟s position. There is no indication the electorate somehow viewed larceny
13
differently from other forms of theft. Rather, it set the amount at issue as the
demarcation between felonies and misdemeanors. Proposition 47 also enacted
section 490.2, which provides that “[n]otwithstanding Section 487 or any other
provision of law defining grand theft, obtaining any property by theft where the
value of the money, labor, real or personal property taken does not exceed nine
hundred fifty dollars ($950) shall be considered petty theft and shall be punished
as a misdemeanor” unless a defendant has suffered a disqualifying prior
conviction. (§ 490.2, subd. (a).)
The Attorney General attempts to draw a distinction between section 459.5
and section 490.2. She argues that, because section 459.5 uses the term “property”
rather than the more expansive phrase “money, labor, real or personal property,”
the electorate intended to limit shoplifting to the theft of “tangible merchandise.”
Viewed in conjunction with section 459.5‟s application only to an entry into a
commercial establishment during business hours (§ 459.5, subd. (a)), the Attorney
General contends the statute‟s reference to “larceny” reflected the electorate‟s
intent to limit the offense to takings colloquially understood as “shoplifting.”
The argument is unpersuasive. First, section 459.5 provides a specific
definition of the term “shoplifting.” In doing so, it creates a term of art, which
must be understood as it is defined, not in its colloquial sense.12 Indeed, by
defining shoplifting as an entry into a business with an intent to steal, rather than
as the taking itself, section 459.5 already deviates from the colloquial

12 “Terms of art are words having specific, precise meaning in a given
specialty. Having its origins in Lord Coke‟s vocabula artis, the phrase term of art
is common in law because the legal field has developed many technical words
whose meanings are locked tight . . . .” (Garner, Dict. of Legal Usage (3d ed.
2011) p. 883; see also People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th
294, 302.)

14
understanding of that term. (See Webster‟s Collegiate Dict. (11th ed. 2003) p.
1151.)
Second, the Penal Code defines property to include “both real and personal
property” and further defines personal property to include “money, goods,
chattels, things in action, and evidences of debt.” (§ 7, pars. (10), (12).) Section
490.2 employs a definition of property consistent with section 7. There is no
indication of an intent to use the term “property” in section 459.5 more narrowly
than the definition of the same term already existing in the Penal Code. “ „[W]hen
the Legislature uses a term of art, a court construing that use must assume that the
Legislature was aware of the ramifications of its choice of language.‟ ” (Ruiz v.
Podolsky (2010) 50 Cal.4th 838, 850, fn. 3.) The same principle applies to the
electorate.
The People‟s reliance on Williams, supra, 57 Cal.4th 776, is misplaced.
Williams dealt with robbery, not burglary. It addressed whether a defendant could
be convicted of robbery if he purchased gift cards with fraudulent credit cards,
then assaulted security guards as he attempted to leave the store. Robbery is
defined as “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211, italics added.) Williams concluded that
“felonious taking” in the robbery statute referred to larceny only: “Because
California‟s robbery statute (§ 211) uses the common law‟s phrase „felonious
taking,‟ and because at common law „felonious taking‟ was synonymous with
larceny, we conclude that larceny is a necessary element of robbery.” (Williams,
at pp. 786-787.) Williams noted two important differences between larceny and
theft by false pretenses. First, larceny requires asportation and the offense
continues until the perpetrator reaches a place of temporary safety. (See People v.
Gomez (2008) 43 Cal.4th 249, 256.) “Because larceny is a continuing offense, a
15
defendant who uses force or fear in an attempt to escape with property taken by
larceny has committed robbery.” (Williams, at p. 787.) By contrast, theft by false
pretenses does not require asportation. That crime “ends at the moment title to the
property is acquired, and thus cannot become robbery by the defendant‟s later use
of force or fear.” (Ibid.) Second, robbery requires a nonconsensual taking, which
is consistent with larceny but inconsistent with theft by false pretenses. (Id. at p.
788.)
Williams rejected the claim that section 490a should be applied to the
robbery statute: “[This] theory would require us to conclude that, by enacting
section 490a, the Legislature intended to alter two of the substantive elements of
robbery: asportation and a trespassory taking. [Citation.] But the 1927 legislation
enacting section 490a and the theft consolidation statute (§ 484, subd. (a); Stats.
1927, ch. 619, § 1, p. 1046) left unchanged the elements of theft. [Citation.] We
are not persuaded that the Legislature intended to alter the elements of robbery, to
which section 490a makes no reference whatever, while also intending to leave
intact the elements of theft, to which it explicitly refers. As this court said more
than 80 years ago, „the essence of section 490a is simply to effect a change in
nomenclature without disturbing the substance of any law.‟ ” (Williams, supra, 57
Cal.4th at p. 789, quoting Myers, supra, 206 Cal. at p. 485.)
Robbery involves a taking by means of force or fear. Burglary and
shoplifting do not require any taking, merely an entry with the required intent. For
more than a century, entry into a store, even during business hours, with the
requisite intent was understood to constitute burglary. (People v. Barry (1892) 94
Cal. 481, 482-483.) “[T]he underlying principle of the Barry case is that a person
has an implied invitation to enter a store during business hours for legal purposes
only.” (People v. Gauze (1975) 15 Cal.3d 709, 713.) “A burglary remains an
entry which invades a possessory right in a building. And it still must be
16
committed by a person who has no right to be in the building.” (Id. at p. 714.)
Gauze also noted that the burglary statute was designed primarily to forestall
dangerous confrontations between intruders and occupants. (Id. at p. 715; see
People v. Montoya (1994) 7 Cal.4th 1027, 1042.) Whether viewed as protecting
the property interest in a building or as protecting the personal safety of those
within, neither purpose is specific to larceny. Indeed, Williams in a footnote
expressly distinguished burglary from robbery, noting that, although the use of
force during a nonlarceny theft could not give rise to a robbery conviction, “if a
defendant enters a store with the intent to commit theft by false pretenses (as
defendant did here), and if that defendant, while fleeing, kills a store employee,
that defendant can be convicted of felony-murder burglary.” (Williams, supra, 57
Cal.4th at p. 789, fn. 4.)
The Attorney General suggests three “absurd” consequences that would
result if defendant‟s understanding of the statutory scheme were adopted. First,
she argues that section 459.5, subdivision (a)‟s requirement of “entering a
commercial establishment with intent to commit larceny while that establishment
is open during regular business hours” (italics added) is inconsistent with
application to types of theft other than larceny: “For example, an employee who
enters the commercial establishment where she works with the intent to steal from
her employer one minute before the store is officially open would commit
burglary, while the same employee would commit shoplifting if she committed the
offense [by entering] one minute later during business hours. To hold that
„shoplifting‟ applies to theft by embezzlement would therefore lead to absurd
results. Accordingly, since the business hours limitation shows that „larceny‟
cannot include embezzlement, „larceny‟ does not mean all forms of theft.”
Even if section 459.5 encompasses some, but not all, entries, that
construction is no more absurd than requiring that first degree burglary be
17
committed during nighttime, which our Penal Code did until 1982. (People v.
Cruz (1996) 13 Cal.4th 764, 770; People v. O’Bryan (1985) 37 Cal.3d 841, 844.)
Just as the Legislature could have reasonably punished nighttime burglaries more
harshly due to the heightened danger of such entries, the electorate could have
concluded that entering an open business to commit a minor theft is less dangerous
and more likely to be ferreted out than an entry when the business is closed.
Intending to limit the crime of shoplifting to an entry during business hours says
nothing about the electorate‟s intent with respect to what types of theft should be
covered.
Second, the Attorney General suggests it would be absurd for the
shoplifting statute to encompass any form of theft other than larceny of openly
displayed merchandise. She posits that a contrary understanding 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 . . . .” She argues the electorate could not
have contemplated that such “scenarios clearly posing a danger to personal safety
due to unauthorized entries—a harm that does not hinge on the value of the
property taken—could no longer be charged as burglary.”
Based solely on the use of the term “shoplifting,” the argument discerns a
limitation to “displayed merchandise.” This argument is little more than a
restatement of the rejected claim that the electorate intended to use “shoplifting” in
the colloquial sense. Further, if the electorate had intended to limit the shoplifting
statute to an entry with intent to steal retail merchandise, it could have done so by
using language similar to that in section 490.5. That provision specifies, in part,
the punishment for “petty theft involving merchandise taken from a merchant‟s
premises” (§ 490.5, subd. (a)), and defines “merchandise” as “any personal

18
property, capable of manual delivery, displayed, held, or offered for retail sale by
a merchant” (§ 490.5, subd. (g)(1)). No similar language is found in section 459.5.
Finally, the Attorney General suggests defendant‟s interpretation leads to
absurd results because taking property displayed for sale is less blameworthy than
taking other kinds of property, entering into areas not open to the public, or
engaging in more sophisticated types of theft. She suggests that the harm from
using personal identifying information, like that found on a check, “is far greater.”
One might question the premise of this argument. The degree of culpability
can reasonably be linked to the value of property stolen, regardless of the
technique employed. In each case, the thief has a specific intent to steal. In any
event, the culpability levels of the various theft offenses are policy decisions for
the electorate to make. Its decision to treat various theft offenses similarly may be
debated but it is not absurd.
Amicus curiae San Diego County District Attorney suggests that applying
section 490a to the shoplifting statute would mean “the distinctions between the
various forms of theft are now meaningless . . . .” Not so. As discussed, neither
the consolidation of the theft offenses nor the nomenclature change of section
490a altered the elements of the various theft offenses. (See Myers, supra, 206
Cal. at p. 485; see also Williams, supra, 57 Cal.4th at p. 789.) Thus, a court would
inform the jury that, in order to convict of shoplifting, the jury must find a
defendant entered a commercial establishment during business hours with intent to
commit theft, and separately instruct on the appropriate form of theft based on the
evidence presented. (See CALCRIM No. 1703.)
People v. Vidana (2016) 1 Cal.5th 632, cited by amicus curiae, supports
this conclusion. There we reasoned that a defendant could not be convicted of
both larceny and embezzlement of the same property because those crimes merely
constituted different formulations of the same theft offense. (Id. at pp. 647-651.)
19
In applying section 490a, Vidana observed that the terms of that provision
demonstrate an obvious intent “to create a single crime of theft.” (Vidana, at
p. 648; see also Williams, supra, 57 Cal.4th at p. 796; People v. Avery (2002) 27
Cal.4th 49, 53, fn. 4.) Vidana did suggest that “literal application of section 490a
would render many statutes nonsensical,” and gave the following example: “Thus,
Vehicle Code section 10502, subdivision (a) provides in part, „The owner or legal
owner of a vehicle registered under this code which has been stolen or embezzled
may notify the Department of the California Highway Patrol of the theft or
embezzlement, but in the event of an embezzlement . . . may make the report only
after having procured the issuance of a warrant for the arrest of the person charged
with the embezzlement.‟ Under a literal reading of section 490a, this law would
instead provide: The „owner or legal owner of a vehicle registered under this code
which has been stolen or stolen may notify the Department of the California
Highway Patrol of the theft or theft, but in the event of a theft . . . may make the
report only after having procured the issuance of a warrant for the arrest of the
person charged with the theft.‟ ” (Vidana, at p. 647.)
While Vidana correctly notes that section 490a‟s application to some theft-
related statutes will not be linguistically seamless, no nonsensical rendering occurs
by substituting “theft” for “larceny” in section 459.5. Its definition of shoplifting
would simply be “read and interpreted” as section 490a directs: “entering a
commercial establishment with intent to commit [theft] 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).” (§ 459.5,
subd. (a).)

20
 C. Application of Section 1170.18
A defendant may be eligible for misdemeanor resentencing under section
1170.18 if he “would have been guilty of a misdemeanor under the act that added
this section . . . had this act been in effect at the time of the offense . . . .”
(§ 1170.18, subd. (a).) Under section 459.5, shoplifting is a misdemeanor unless
the defendant has suffered a disqualifying prior conviction. (§ 459.5, subd. (a).)
To be eligible for resentencing, defendant must demonstrate that his crime
would have been a misdemeanor if the Act was in effect when he committed the
offense. The Act did not change the punishment for second degree burglary,
which is an alternative felony/misdemeanor, commonly known as a “wobbler.”
(People v. Williams (2005) 35 Cal.4th 817, 820.) However, section 459.5,
subdivision (b) states that “[a]ny 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.” Thus, defendant
would qualify for relief if he can show that his conduct would have constituted
misdemeanor shoplifting, so long as he has not suffered a disqualifying
conviction.13 (See §§ 459.5, subd. (a), 1170.18, subd. (i).)
The Attorney General argues that, even if defendant engaged in shoplifting,
he is still not eligible for resentencing because he also entered the bank intending
to commit identity theft. Thus, his felony burglary conviction could have been
based on his separate intent to commit that offense. Section 530.5, subdivision (a)
applies to “[e]very person who willfully obtains personal identifying
information . . . of another person, and uses that information for any unlawful

13 The court retains jurisdiction to deny relief if it concludes resentencing
“would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd.
(b).)

21
purpose, including to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information without the consent of that person . . . .”
Personal identifying information includes “any name, address, [or] telephone
number,” as well as any “checking account number.” (§ 530.55, subd. (b).)
The Attorney General relies principally upon People v. Barba (2012) 211
Cal.App.4th 214, which reasoned that the defendants could have committed
identity theft by cashing a stolen check. “Although defendants argue that they did
not actually „use‟ the personal identifying information that was printed on the
stolen checks, there can be no doubt that by submitting the stolen checks for
cashing, defendants were relying on the personal identifying information provided
on those checks to obtain money to which they were not entitled.” (Id. at p. 228.)
Defendant counters that, even assuming he entered the bank with an intent
to commit identity theft, section 459.5, subdivision (b) would have precluded a
felony burglary charge because his conduct also constituted shoplifting. At least
one Court of Appeal has agreed with this position. (See People v. Garrett (2016)
248 Cal.App.4th 82, 87-88, review granted Aug. 24, 2016, S236012.)
Defendant has the better view. Section 459.5, subdivision (b) requires that
any act of shoplifting “shall be charged as shoplifting” and no one charged with
shoplifting “may also be charged with burglary or theft of the same property.”
(Italics added.) 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. The statute‟s use of
the phrase “the same property” confirms that multiple burglary charges may not be
based on entry with intent to commit different forms of theft offenses if the
property intended to be stolen is the same property at issue in the shoplifting
charge. Thus, the shoplifting statute would have precluded a burglary charge
based on an entry with intent to commit identity theft here because the conduct
22
underlying such a charge would have been the same as that involved in the
shoplifting, namely, the cashing of the same stolen check to obtain less than $950.
A felony burglary charge could legitimately lie if there was proof of entry with
intent to commit a nontheft felony or an intent to commit a theft of other property
exceeding the shoplifting limit. That did not occur here, however.

III. DISPOSITION
We reverse the Court of Appeal‟s judgment. The matter is remanded with
direction that it be returned to the trial court for further proceedings consistent
with the holding here.

CORRIGAN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CUÉLLAR, J.
KRUGER, J.

23
 DISSENTING OPINION BY CHIN, J.

On two occasions, defendant entered a bank and cashed one of his
grandmother‟s checks, which he had stolen and made out to himself for $125. The
grandmother had not signed the checks or authorized defendant to cash them. The
majority holds that defendant committed the new crime of shoplifting the
electorate created when it adopted Proposition 47. (Pen. Code, § 459.5, subd. (a).)
(All future statutory citations are to the Penal Code.) I disagree.
Section 459.5, subdivision (a), provides as relevant: “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).” (Italics added to emphasize the
single word critical to this issue.)
As the majority recognizes, cashing a fraudulent check is not larceny. It is
obtaining property by false pretenses. Entering a bank with intent to obtain
property by false pretenses is not entering a commercial establishment with intent
to commit larceny. Accordingly, defendant did not commit the crime of
shoplifting as section 459.5 defines it.
The majority avoids the statute‟s plain language by reading the word
“larceny” in section 459.5 as not meaning “larceny,” but “theft.” In 1927, the
Legislature consolidated “the formerly distinct offenses of larceny, embezzlement,

1
and obtaining property by false pretenses . . . into the single crime of „theft‟
defined by Penal Code section 484 . . . .” (People v. Davis (1998) 19 Cal.4th 301,
304.) Section 490a, part of the 1927 legislation, provides: “Whenever any law or
statute of this state refers to or mentions larceny, embezzlement, or stealing, said
law or statute shall hereafter be read and interpreted as if the word „theft‟ were
substituted therefor.” Relying on some burglary cases that I discuss below, the
majority treats section 490a literally and replaces the narrow word “larceny” in
section 459.5 with the broader word “theft.” In effect, the majority says that
whenever the Legislature (or electorate) attempts to use the narrow word
“larceny,” that word is “auto corrected” to the broader word “theft.” This auto
correct process applies even when it is clear that the narrow word, and not the
broader word, was intended.
The implications are troubling. Section 490a must not be interpreted
literally, especially when doing so changes the meaning of substantive crimes.
Automatically expanding the elements of a crime by autocorrecting a narrow word
(“larceny”) to a broad word (“theft”) can create criminal liability where none was
intended.
In addition to expanding criminal liability beyond anyone‟s intent, this auto
correct process runs afoul of what we said recently in People v. Vidana (2016) 1
Cal.5th 632 (Vidana): “Our cases interpreting section 490a and the 1927
amendment to section 484 have repeatedly held that the legislation simplified the
procedure of charging larceny, embezzlement, and false pretenses, but did not
change their elements. . . . [S]ection 484 as amended „merely . . . amalgamate[s]
the crimes of larceny, embezzlement, false pretenses and kindred offenses under
the cognomen of theft. No elements of the former crimes have been changed by
addition or subtraction.‟ ” (Id. at pp. 641-642 [quoting People v. Myers (1929)
206 Cal. 480, 483 (Myers)].) “The Legislature continues to use the terms „larceny‟

2
and „embezzlement,‟ and to enact statutes using both terms, or both „theft‟ and
„embezzlement.‟ ” (Vidana, at p. 645; see id. at pp. 645-646 & fn. 14, citing
numerous examples in the Pen. Code, the Bus. and Prof. Code, the Fin. Code, the
Gov. Code, and the Veh. Code.)
In language the majority does not mention, we said this about section 490a:
“The Court of Appeal in this case read section 490a as „literally excising the words
“larceny” and “embezzlement” from the legislative dictionary.‟ That, of course, is
not the case as can be seen by the numerous statutory provisions delineated above
using the terms larceny and embezzlement.” (Vidana, supra, 1 Cal.5th at pp. 646-
647, italics added.)
In language the majority does mention, but only in part (maj. opn., ante, at
pp. 19-20), we added: “Moreover, literal application of section 490a would render
many statutes nonsensical. Although this court long ago said that „the essence of
section 490a is simply to effect a change in nomenclature without disturbing the
substance of any law‟ (Myers, supra, 206 Cal. at p. 485; accord, [People v.]
Williams [(2013) 57 Cal.4th 776], 789), it does not appear we have ever applied
section 490a to effect a change in nomenclature or to change the language of any
statute.” (Vidana, supra, 1 Cal.5th at p. 647, italics added to indicate some of the
language the majority does not mention, fn. omitted.)
Critical here, we explained in more language the majority does not
mention, “Nor does the Legislature‟s continued use of the terms „larceny‟ (or
„theft‟) and „embezzlement‟ in various statutes transform larceny and
embezzlement into different offenses. Rather, these terms are simply different
ways of describing the behavior proscribed by those statutes.” (Vidana, supra, 1
Cal.5th at p. 649, italics added.) Similarly here, the word “larceny” describes the
behavior section 459.5 proscribes.

3
 Our other recent opinion, People v. Williams (2013) 57 Cal.4th 776
(Williams), is similar. Williams is a robbery case, not a theft case, but it is still
instructive. We discussed the 1927 enactment and explained that, “[a]s we pointed
out in [People v. Ashley (1954) 42 Cal.2d 246], the California Legislature‟s
consolidation of larceny, false pretenses, and embezzlement into the single crime
of theft did not change the elements of those offenses (Ashley, supra, 42 Cal.4th at
p. 258), a fact that is significant to our analysis . . . .” (Williams, at p. 786.) In
response to the dissent‟s reliance on section 490a, we said that the “dissent‟s
theory would require us to conclude that, by enacting section 490a, the Legislature
intended to alter two of the substantive elements of robbery: asportation and a
trespassory taking. [Citation.] But the 1927 legislation enacting section 490a and
the theft consolidation statute [citation] left unchanged the elements of theft. . . .
As this court said more than 80 years ago, „the essence of section 490a is simply to
effect a change in nomenclature without disturbing the substance of any law.‟
(People v. Myers (1929) 206 Cal. 480, 485, italics added.)” (Williams, at p. 789.)
We are interpreting an initiative measure. Our goal is to discern the
electorate‟s intent. The majority‟s interpretation of “shoplifting” would modify
that term from its commonly understood meaning and expand it beyond all
recognition. Shoplifting has always been understood to involve larceny, that is,
the stealing of merchandise, not embezzlement and not false pretenses. Webster‟s
Third New International Dictionary of the English Language (1981) defines
“shoplifting” simply as “the stealing of goods on display in a store.” (Id. at p.
2101.) Black‟s Law Dictionary goes into more detail. It defines shoplifting as
“Theft of merchandise from a store or business; specif., larceny of goods from a
store or other commercial establishment by willfully taking and concealing the
merchandise with the intention of converting the goods to one‟s personal use

4
without paying the purchase price.” (Black‟s Law Dict. (10th ed. 2014) p. 1590,
col. I, italics added.)
These definitions do not remotely describe what defendant did. As the
Attorney General notes, “One would be hard-pressed to find any California voter
who would define fraudulently cashing forged and stolen checks as shoplifting.”
The majority is correct that the common (or “colloquial,” to use the
majority‟s term) understanding must yield to the statutory definition when that
definition does not comport with the common understanding. The statutory
definition becomes its own term of art that must be given effect. (Maj. opn., ante,
at p. 14.) However, the statutory definition of “shoplifting” does comport with the
common understanding. Section 459.5, subdivision (a), uses the same word
“larceny” to define the crime that Black‟s Law Dictionary uses. Only when the
majority auto corrects “larceny” into “theft” does it change the statutory definition
into something different from the common understanding. The word “larceny” is
a precise term of art with a well-established meaning that the Legislature and
initiative measures continue to use. When the Legislature or electorate uses that
word to define an element of the crime, it intends that form of theft, not all forms
of theft.
I do recognize that, in one respect, the statutory definition of “shoplifting”
does diverge from the common understanding. It applies to anyone entering a
commercial establishment with the intent to commit larceny and does not require
an actual completed act of larceny. The common understanding of “shoplifting”
no doubt contemplates an actual taking. This divergence from the common
understanding was necessary to accomplish the obvious intent behind this part of
the initiative — to replace felony burglary of a commercial establishment with
misdemeanor shoplifting when the dollar amount is limited. If the crime of
shoplifting had not been expanded in this way, the result would have been absurd:

5
A person who enters a store intending to steal, say, a six-pack of beer, but is foiled
before actually stealing it, would be guilty of felony burglary, but the person who
actually stole the beer would be guilty only of misdemeanor shoplifting. The
drafters of Proposition 47 knew how to diverge from the common understanding
when that was their intent, and how to otherwise come within the common
understanding by using the word “larceny,” rather than “theft.”
Proposition 47 itself uses both “larceny” when that word is intended, and
“theft” when that word is intended. For example, section 459.5, subdivision (b),
provides: “Any act of shoplifting as defined in subdivision (a) shall be charged
with shoplifting. No person who is charged with shoplifting may also be charged
with burglary or theft of the same property.” (Italics added.) Auto correcting
“larceny” to “theft” means the drafters used the two words randomly even though
they mean the same thing. But the drafters did not randomly employ two different
words to mean the same thing. The two words have different meanings. When
the drafters used one word rather than the other, they meant that word, not the
other. As a recent Court of Appeal opinion put it, “This choice of wording within
the statute at issue confirms the electorate thought larceny was something different
than other forms of theft. There would be no rational purpose for choosing
different words to convey the same meaning if larceny and other forms of theft
were intended to be wholly overlapping terms.” (People v. Martin (2016) 6
Cal.App.5th 666, 681, review granted Feb. 15, 2017, S239205 [shoplifting
requires the intent to commit larceny, not some other form of theft].)
Noting that voters are presumed to be aware of existing laws, the majority
assumes the voters were aware of a 1927 statute (§ 490a) — but for some reason
were not aware of our long-standing interpretation of the statute as not changing
the substance of any law, even though we reiterated that interpretation only a year
before the election (Williams, supra, 57 Cal.4th at p. 789) — and, also being

6
aware of two burglary cases decided by the Court of Appeal, they would assume
that when section 459.5 uses both “larceny” and “theft,” words with well-
established and distinct meanings, the statute really means “theft” each time, and
never “larceny.” (Maj. opn., ante, at pp. 11-12.)
This legal backdrop, given its lack of clarity, does not provide much basis
to infer that the electorate intended to use the word “larceny” to mean “theft” and
thereby dramatically depart from the common meaning of “shoplifting.”
The ballot materials, a useful source of ascertaining voter intent (People v.
Morales (2016) 63 Cal.4th 399, 406), demonstrate the voters‟ understanding that
shoplifting was limited to its common understanding. The Legislative Analyst‟s
analysis of Proposition 47 describes the shoplifting provision this way: “Under
current law, shoplifting property worth $950 or less (a type of petty theft) is often
a misdemeanor. However, such crimes can also be charged as burglary, which is a
wobbler. Under this measure, shoplifting property worth $950 or less would
always be a misdemeanor and could not be charged as burglary.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis.
Analyst, p. 35, italics added.) Any reasonable voter would be surprised to know
that shoplifting is not only a type of theft, but incorporates all types of theft.
By adopting the auto correct process, the majority essentially says that the
Legislature or electorate cannot use the word “larceny” to define a crime even
when, as here (and in other statutes; see Vidana, supra, 1 Cal.5th at pp. 645-646 &
fn. 14), that is the precise word intended. But how else should the drafters have
defined the crime of shoplifting when they intended the common understanding of
“larceny”?
Auto correcting “larceny” to “theft” in a statute that defines a crime
expands the meaning of that crime, contrary to our long-standing interpretation
that “ „the essence of section 490a is simply to effect a change in nomenclature

7
without disturbing the substance of any law.‟ ” (Williams, supra, 57 Cal.4th at p.
789, quoting Myers, supra, 206 Cal. at p. 485.) Because many statutes even today
use the precise words “larceny” or “embezzlement” to describe or define an
element of a crime, we should not automatically expand the meaning of those
words.
The majority relies on cases involving burglary. Doing so is reasonable
because those cases do, indeed, support its holding. The burglary statute contains,
and has contained since the Penal Code was originally enacted in 1872, the same
word “larceny” to describe the required intent. Specifically, it requires the “intent
to commit grand or petit larceny or any felony.” (§ 459.) Because the shoplifting
statute was intended to replace a burglary charge with the less serious shoplifting
charge in some circumstances, presumably the word “larceny” will have the same
meaning in the burglary statute as in the shoplifting statute.
As the majority explains, some cases have interpreted section 490a as
changing the meaning of “larceny” in the burglary statute to the broader term
“theft.” Rather than endorsing those cases, however, we should disapprove them.
They are inconsistent with what we said long ago in Myers, supra, 206 Cal. 480,
and more recently in Vidana, supra, 1 Cal.5th 632, and Williams, supra, 57
Cal.4th 776, that section 490a simply effects a change in nomenclature but does
not disturb the substance of any law.
The only cases applying section 490a to auto correct “larceny” in the
burglary statute to “theft” in actual holdings appear to be People v. Nguyen (1995)
40 Cal.App.4th 28 and People v. Dingle (1985) 174 Cal.App.3d 21. (People v.
Bayne (1934) 136 Cal.App. 341 had an odd procedural posture and, in any event,
appears to have involved larceny.) They did so with little analysis or seeming
understanding of the holding‟s implications. The analysis in Nguyen consists of a
single paragraph mechanistically applying a broad understanding of section 490a.

8
(Nguyen, at p. 31.) Dingle‟s reasoning is similarly unpersuasive. Although the
court acknowledged that the merger of the three separate crimes “did not change
the elements of the former crimes” (Dingle, at p. 29), it nevertheless held that
section 490a changed the elements of burglary (id. at p. 30). The holding of these
cases — the 1927 legislation changed the meaning of burglary by expanding the
intent to commit larceny to include the intent to commit embezzlement and false
pretenses — is contrary to Myers‟s explanation that section 490a did not disturb
“the substance of any law.” (Myers, supra, 206 Cal. at p. 485.)
This court has never squarely confronted the question. In People v. Parson
(2008) 44 Cal.4th 332, we cited one of the Court of Appeal cases with approval.
(Id. at p. 354, citing People v. Nguyen, supra, 40 Cal.App.4th 28.) But, as we
explained in Parson, the trial court‟s instruction on burglary was limited to the
larceny form of theft. It did not cover any other form of theft. (Parson, at pp.
352-353.) Accordingly, the reference to Nguyen was dicta. In Williams, the
defendant was charged with robbery, and we hypothesized in a footnote, without
citation to authority, that “if a defendant enters a store with the intent to commit
theft by false pretenses (as defendant did here), and if that defendant, while
fleeing, kills a store employee, that defendant can be convicted of felony-murder
burglary.” (Williams, supra, 57 Cal.4th at p. 789, fn. 4.) But that language, too,
was dicta and did not carefully consider this question.
When the Legislature used the common law word “larceny” in 1872 in
defining burglary, it meant larceny, not embezzlement and not false pretenses. In
1927, when the Legislature changed the law of theft, it did not also, sub silentio,
change the law of burglary.
The early case of Myers, supra, 206 Cal. 480, does not support the
majority‟s holding. It involved larceny and no other form of theft. (Id. at p. 481.)
The trial court ordered the information amended to say “theft” instead of

9
„larceny.” (Ibid.) On appeal, this court rejected the defendant‟s argument that the
amended information failed to state a crime. (Id. at pp. 481-482.) We observed
that “the words „theft‟ and „larceny‟ are so nearly convertible terms that defendant
could in no sense have been misled by the use of one term or the other.” (Id. at p.
482.) We rejected the defendant‟s argument that section 484, which had defined
“larceny,” had been repealed by the 1927 legislation, resulting in the removal of
the element of larceny. We concluded that section 484 had simply been amended
to include false pretenses and embezzlement, as well as larceny, but none of the
elements of these crimes had been changed. (Id. at p. 483.) Nothing in Myers
suggests the 1927 legislation substantively changed the definition of “burglary.”
Expanding the definition of “burglary” this way has troubling implications.
Combined with the shoplifting statute, it would mean, for example, that an
accountant who works for a store and who embezzles $20 dollars when the store is
open for business would be guilty of shoplifting only, but guilty of burglary if the
embezzlement occurs five minutes before or after the store closes to the general
public. The same accountant who enters his or her office at a business that is not a
commercial establishment would be guilty of burglary any time the person enters
the office intending to commit embezzlement. Nobody would consider a person‟s
entering his or her own office with intent to embezzle $20 to be burglary, but that
is the effect of the burglary cases.
Moreover, a person who enters a friend‟s house intending to defraud
someone out of a few dollars — perhaps at a poker game — would be guilty not
only of burglary, but of first degree residential burglary. (§ 460, subd. (a).)
I hope and expect that no prosecutor would actually overcharge such cases
as burglary. But the majority‟s opinion is an invitation to do so. Entering a bank
intending to cash a fraudulent check is not entering with the intent to commit
larceny. We should not transform the common understanding of “larceny” in this

10
statute (and numerous other statutes) the way the majority does. Myers, Williams,
and Vidana correctly stated that section 490a did not change the substance of any
law. Vidana was correct that section 490a does not literally excise the words
“larceny” and “embezzlement” from the legislative dictionary. The 1927
legislation did not expand the elements of burglary.
Rather than embrace the burglary cases, we should disapprove the Court of
Appeal cases that expanded the definition of the crime of burglary and disavow
our dicta in People v. Parson, supra, 44 Cal.4th 332, and Williams, supra, 57
Cal.4th 776. Section 490a must not be taken literally. The Legislature or
electorate should be allowed to continue to use a word such as “larceny” when, as
here, that word conveys the intended meaning.
We should avoid much mischief by concluding that defendant did not
commit shoplifting and, therefore, Proposition 47 does not operate to reduce his
conviction to a misdemeanor.

CHIN, J.
I CONCUR:

LIU, J.

11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzales
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 242 Cal.App.4th 35
Rehearing Granted

__________________________________________________________________________________

Opinion No. S231171
Date Filed: March 23, 2017
__________________________________________________________________________________

Court: Superior
County: Imperial
Judge: L. Brooks Anderholt

__________________________________________________________________________________

Counsel:

Richard A. Levy, under appointment by the Supreme Court; and Ava R. Stralla, under appointment by the
Court of Appeal, for Defendant and Appellant.

Stephen P. Lipson, Public Defender (Ventura), Michael C. McMahon, Chief Deputy Public Defender, and
William M. Quest, Deputy Public Defender, for California Public Defenders Association and Public
Defender of Ventura County as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy
State Solicitor General, Michael Pulos, Arlene A. Sevidal, Christen E. Somerville and Alastair Agcaoili,
Deputy Attorneys General, for Plaintiff and Respondent.

Bonnie M. Dumanis, District Attorney (San Diego), James E. Atkins and Brooke E. Tafreshi, Deputy
District Attorneys, for San Diego County District Attorney as Amicus Curiae on behalf of Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard A. Levy
3868 West Carson Street, Suite 205
Torrance, CA 90503-6706
(310) 944-3311

Alastair Agcaoili
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9063