P v. Vargas (2nd Dist., Div.8): Entering a Check Cashing Store to Cash a Forged Check is a PC 459.5.

I previously commented on P v. Gonzalez, which, IMEO, was incorrectly decided.

Here a panel from the Second District agrees with me.

Ms. Vargas went into a check cashing business and tried to cash a 148 dollar forged check.  She was arrested and pleaded guilty to second degree burglary (aka "commercial burglary").  Following the November, 2014, passage of Proposition 47, Vargas petitioned the court under PC 1170.18 to reduce her conviction to a misdemeanor and resentence her under PC 459.5, shoplifting.  The trial court denied Vargas' petition, stating that "shoplifting" did not include going into a check cashing place to cash a forged check.  Vargas appealed.

A panel from the Second District reverses, disagreeing with the Fourth District's contrary holding in P v. Gonzales.  And for good reason.

The issue is this; had Vargas committed her offense today, would she necessarily be punished as a misdemeanant?  The answer depends on the statutory language of the newly created crime of shoplifting, PC 459.5.

[1]entering a [2]commercial establishment [3]with the intent to commit larceny [4]while that establishment is open [5]during regular business hours, [6]where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). (numerals added)

Vargas can clearly establish [1], [2], [4], [5], and [6], as the panel refuses the State's invitation to rewrite the statute by deleting "commit larceny" and substituting "steal displayed merchandise".  The real issue is [3]; whether cashing a forged check (theft by false pretenses) is larceny.  The state urges the panel to follow the reasoning in Gonzales and hold that because P v. Williams held the robbery element of "felonious taking" was not modified by the subsequent addition of PC 490a (stating "larceny" includes theft by false pretenses), it therefore follows that we can ignore 490a when analyzing PC 459.5.  The panel wisely chooses to base its decision in the text that the voters approved rather than the flimsy legal analogy of Gonzalez.  It is hard to find fault with the panel's deduction.

 Thus, because voters adopted the phrase “intent to commit larceny” in section 459.5, which mirrors the intent element in the general burglary statute (§ 459), and that phrase includes theft by false pretenses, we believe the voters intended section 459.5 to include theft by false pretenses.

Thus the case is remanded to the trial court for a determination whether resentencing Vargas would create an unreasonable risk to the public peace.  My guess is the answer will be "no".