Ms. Garner walked into a grocery store and tried to pay for merchandise with a forged 100 dollar traveler's check. For this she was convicted of felony second degree burglary and felony forgery.
Subsequently, November 4, 2014, the California voters passed Proposition 47. Garner then petitioned the trial court to reduce her convictions to misdemeanors pursuant to PC 1170.18. The trial court denied her petition as to the burglary conviction on the basis that Garner had entered the grocery with an intent to commit theft by false pretenses, not larceny. Because Garner had not the intent to commit larceny, her burglary would not constitute the misdemeanor crime of shoplifting if committed today, said the trial court. Garner appealed.
The Second District reverses.
This issue, whether "larceny" as used in the shoplifting statute, includes theft by false pretenses is pending before the California Supreme Court (P v. Gonzalez). I will wager a bottle of Johnny Walker black that the California Supreme Court will answer "yes".
Some insecure judges, misinterpreting the electorate's decision to ameliorate the punishments for certain offenses as a slight to their fitness, have engaged in all sorts of excerebrose reasoning to narrow the reach of the Proposition 47. I previously discussed the folly of the Gonzalez opinion here. The issue is not even really close. Penal Code section 490a is quite clear on the matter; "larceny" is to be read as "theft" and "theft" includes theft by false pretenses.
When Garner went into the grocery, she intended to commit larceny. This because larceny is defined as "theft" in 490a and Garner intended to commit theft. That the method of theft was false pretenses is of no import. Because she intended to commit larceny (under 950 dollars) when she went inside the grocery, her crime would necessarily be shoplifting if committed today.
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