P v. Bias (4th Dist., Div.2) Another Questionable Proposition 47 Opinion

Mr. Bias went into a bank to cash a 587 dollar check he had forged using a local business' account number.  He was caught and charged with commercial burglary, PC 459, and forgery, PC 470.  As part of a plea bargain, Bias pleaded guilty to the PC 459.

Following the passage of Proposition 47 in November 2014, Bias petitioned the trial court to reduce his PC 459 to a misdemeanor.  The trial court granted his petition and the State Appealed.

The Fourth District reverses.

The issue is whether Bias' crime, if committed post-Proposition 47, would necessarily be a misdemeanor.  This turns on whether Bias' crime falls under the crime of shoplifting, PC 459.5, which states; 

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 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 opinion finds that Bias' intent was to commit identity theft, PC 530.5, upon his entrance into the bank.  It then proceeds (too hastily) to the conclusion that Bias' crime does not fall within PC 459.5 and is ineligible for PC 1170.18 relief.  This analysis is incomplete.

First, the panel frames the question, incorrectly, as whether Bias entered the bank with the intent to commit identity theft or larceny.  This is wrong.  Obviously, Bias entered the bank with the intent to commit identity theft and larceny.  He intended to go in the bank, submit the check to the clerk (identity theft) and then get his hands on 587 dollars of the bank's money to which he has no legal right (larceny-theft by false pretenses).  You can even go a step further and correctly say Bias entered the bank with an intent to commit three crimes; pass a forged check (PC 470), unlawfully use the business' account number (PC 530.5), and commit larcency (PC 484).  An astute law student could probably identify an intent to commit all of a half dozen additional crimes.  

The real issue under these facts is whether the mandatory language of PC 459.5 requires, in the instance of multiple intents, the crime be charged under PC 459.5.

PC 459 is an unusual statute in that it invades an area that is usually left within the discretion of the prosecutor, the choice of which crime to charge.  As California's penal code is unnecessarily voluminous, most criminal events involve more than one crime (as shown above).  Traditionally, it was left to the prosecutor to determine which crime(s) to charge.  However PC 459.5 removes this discretion and requires that any "[a]ct of shoplifting . . . shall be charged as shoplifting".  This language implies that certain acts of shoplifting could be charged as other crimes (to mandate a particular outcome when only one outcome is possible would be excerebrose).  

So the real question is, if Bias were to do the same thing today, whether a PC 459.5 charge would be required.  If so, this opinion is wrong.  If not, this opinion is correct.  But because the panel never identifies the true question presented in this case, the answer will have to come another day.