P v. Garrett (6th Dist.) The Sixth District Gives Effect to Mandatory Charging Language In PC 459.5, Disagreeing With P v. Bias

In March, I commented on P v. Bias, a decision by the Fourth District with which I disagreed.  Here the Sixth District tackles the same issue and, IMEO, gets it right.

February 2014, Mr. Garrett and a companion went into a QuickStop armed with a stolen credit card.  The companion grabbed a handful of gift cards and headed to the register, stolen credit card in hand.  Garrett saw a police car pull into the QuickStop parking lot and unsuccessfully tried to cheese it.  He was arrested, charged with, and pleaded guilty to, felony commercial burglary, PC 459.  

Garrett returned to court in December 2014, petitioning under PC 1170.18 for his charge to be reduced to a misdemeanor as an act of shoplifting, PC 459.5.  He asserted the handful of gift cards was worth 50 bucks and thus his crime was entering the open QuickStop, during business hours, with an intent to commit larceny of less than 950 dollars.

The trial court denied Garrett's petition on the basis that Garrett's intent upon entering the QuickStop was not to commit larceny, but to commit identity theft, PC 530.5.  An appeal followed.

The Sixth District reverses the denial of Garrett's PC 1170.18 petition and remands the case for further proceedings.

 Where P v. Bias misrepresented the issue as being whether the defendant entered the store with an intent to commit identify theft OR an intent to commit larceny, this panel admits the reality of the situation.  The defendant obviously intended to commit both crimes when he entered the store.  He intended to present the stolen credit card for a fraudulent purpose (identity theft) and, following his identity theft, walk out the door with 50 bucks worth of gift cards obtained by via fraudulent pretense (larceny).  

Given these two intents (one included within 459.5 and one not), the panel then turns to an often overlooked phase in PC 459.5; 

 a person who enters a store “with intent to commit larceny” shall be punished as a misdemeanant if the value of the property to be taken is not more than $950. (Pen. Code, § 459.5, subd. (a).) Subdivision (b) further provides that any act defined as shoplifting “shall be charged as shoplifting” and may not be charged as burglary or theft of the same property.  (emphasis added)

The panel applies this rather clear language and holds that if the "act" fits under the definition of shoplifting, the act must be prosecuted and punished as shoplifting.  As here the "act" clearly is one of shoplifting, the result is that the trial court's denial is reversed and the case is remanded for the trial court to determine whether Garrett poses an unreasonable risk to public safety.