P v. Pak (2nd Dist, Div.4) For a Burglary Premised on Pawning Stolen Property, Eligibility for PC 1170.18 Relief Depends Upon the Value Received

In 2011, Ms. Pak went to a pawn shop to pawn some stolen property, a camcorder, a watch, and some earrings.  The pawn shop took the loot and gave Pak a sum of money.  For this, the State charged Pak with, and she pleaded to, felony second degree burglary.  

Fast forward to 2015, Pak files a PC 1170.18 petition to reduce her conviction to misdemeanor shoplifting.  She claims the pawn shop gave her less than 950 dollars for the loot.  The State responds, and Pak agrees, that the fair market value of the loot was over 5K.  Thus you can see the issue develop.  "Shoplifting" requires the following.

the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)   PC 459.5

So does "property" in Pak's case refer to [a] the loot she carried into the pawn shop, [b] the amount of money she "intended" to get from the pawn broker for the loot, or [c] the amount of money Pak actually received from the pawn broker?  

The trial court found it was [b].  Reasoning that Pak intended to get more than 950 dollars for loot worth 5K, it denied the petition.  In doing so, the trial court presciently observed the issue was a good one for an appeal.  An appeal followed.

The Second District disagrees with the trial court, instead finding the "property" at issue here refers to [c] the amount of money Pak received for the loot.  The panel does affirm the denial though, albeit kindly without prejudice, as Pak did not present any evidence of what amount she received.

The opinion is a tight, textual analysis.  "[V]alue of the property taken or intended to be taken" is a disjunctive phrase containing the past participle of "to take".  As Pak already had possession of the loot when she entered the pawn shop, it makes little sense to say the property she intended to take was said loot.  What she intended to "take" from the pawn shop was cash.  Here, the disjunctive language becomes important.  The panel interprets the phrase to be binary.  If the burglar intends to get more than 950 bucks for the loot, but never completes the transaction, the operative "amount" is greater than 950 dollars and her crime is not a shoplift.  But where, as here, the burglar actually pawns the loot and "takes" away from the transaction a sum of money, it is that sum that controls, and if less than 950 dollars, the crime is a misdemeanor shoplift.  Here, by completing the transaction, Pak's intent ceased to be the relevant consideration, replaced by the sum actually received.   

Unfortunately (but not fatal) for Pak was that she did not present any evidence at the hearing that she received less than 950 dollars.  Her attorney represented to the court that the DA had shown him the receipts and they totaled less than 950 dollars, a statement the DA did not contest.  But the panel finds such representations will not suffice.  So it affirms the denial, but gives Pak another chance to go back to the trial court and this time show the court proof of the amount she received.