People v. Gonzalez: Proposition 47 Eligibility -- Following Precedent or Judicial Schadenfreude?

One major flaw with this opinion is that the application of the holding, while justifying the trial court's denial of Gonzalez's 1170.18 petition, places the conviction itself in question.  Another major flaw is that the decision appears to be incorrect.

Gonzalez walked into a bank and cashed two 125 dollar checks he had written to himself.  He had earlier taken the checks from his Nana without permission.  For this peccadillo he pled guilty to felony second degree burglary.  After the November, 2014, election, Gonzalez petitioned pursuant to PC 1170.18 for his conviction to be reduced to misdemeanor shoplifting, PC 459.5.  The trial court denied his petition, stating that Gonzalez's crime was not shoplifting because shoplifting requires an intent to commit larceny and Gonzalez's intent upon entering the bank was not to commit larceny, but rather theft by false pretenses.

A panel from the Fourth District affirms.  But it does so in a faineant fashion omitting any discussion of the statute that textually addresses the central issue.  The panel essentially says: [1] PC 459.5 requires an intent to commit larceny; [2] The California Supreme Court said in People v. Williams that larceny requires taking property without consent of the owner; and, [3] Since Gonzalez received the 250 dollars with the consent of the bank teller, it wasn't larceny, and hence, wasn't shoplifting.

The opinion is short and for a good reason; a thorough examination of Williams and PC 490a demonstrates the panel's opinion is constructed on labile podium.

Robbery was a common law crime codified by the California Legislature in 1872.  Robbery requires a "felonious taking".  In Williams, the California Supremes had occasion to decide what "felonious taking" meant within the context of robbery.  Mr. Williams had purchased some gift cards with fraudulent credit cards and shoved store security officers who had attempted to question him.  In reversing William's robbery conviction, the majority decided "felonious taking" for purposes of robbery meant "larceny" as that term was understood at common law, a trespassory taking.  Because the store clerk had voluntarily given Williams the gift cards, there was no larcency.

The dissent in Williams pointed out the majority had overlooked PC 490a, passed in 1927.  PC 490a says the following.

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.

The majority rejected the application of 490a on two grounds.  First, robbery doesn't mention "larceny, embezzlement, or stealing" directly rather it refers to "felonious taking", making the statute textually inapplicable.  Second, the majority said that 490a was not intended to alter the elements of any preexisting crime.

In the instant case, 490a is applicable, not having either of the two impediments to its application cited in Williams.  First, it clearly is textually applicable as PC 459.5 explicitly refers to "larceny".  Second, PC 459.5 was created more than 80 years after 490a was enacted and legislatures are presumed to be aware of existing statutes when new ones they enact.  Even if 490a is inapplicable to crimes already codified in 1927, that is of no effect here.  To hold otherwise would be to render 490a meaningless (if it doesn't apply to pre-1927 crimes nor post-1927 crimes, to what would it apply?).

As to the crime of shoplifting, if you follow the plain language of the applicable statutes, "larceny" in the shoplifting statute "shall be read and interpreted" as the word "theft" which, in another statute, PC 484, specifically includes false pretenses.  In order to affirm, the panel ignores all of this.

Then there is another question.  If Gonzalez didn't have the intent to commit "larceny" when he entered the bank, what is the factual basis for his PC 459 conviction?  Commercial burglary has as one of its elements the "intent to commit grand or petit larceny or any felony."  If the panel holds there was no larceny, what factual basis supports the commercial burglary conviction?