P v. Colbert (6th Dist.) Entering a Retail Shop With an Intent to Steal From a Back Office Is Not a Shoplift, PC459.5, Creating a Split Within Districts

Back in 1996, Mr. Colbert and an accomplice committed a series of commercial burglaries.  They would enter a retail store, and while one of them would distract the clerk, the other man would sneak into the store's back office and steal whatever was therein.  For a string of such burglaries, Colbert was convicted of multiple counts of felony commercial burglary.

Following the addition of sections 459.5 and 1170.18 to the Penal Code, Colbert returned to the trial court and petitioned to have a number of his felony commercial burglary convictions (those involving less than 950 dollars) reduced to misdemeanor shoplifts under PC 1170.18.  The trial court denied Colbert's petitions and he appealed.

Here the Sixth District affirms.

The opinion is a laughable and inept attempt to mask an unsupported inductive impulse as an exercise in statutory construction.  Were it not, the opinion would certainly have examined two recent opinions, one from the California Supreme Court, that examine similar facts and arrive at conclusions contrary to the one here (albeit the Supreme Court case dealt with a different statute).

The applicable statutory language in 495.5 is as follows.

 [S]hoplifting 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 other entry into a commercial establishment with intent to commit larceny is burglary[.]

The majority's reasoning is as follows; while the stores at issue are commercial establishments, they contain within them non-commercial establishments, to wit, the business offices.  To arrive at this conclusion, the panel notes the definition of commercial establishment as a place "relating to, or involved in the buying and selling of goods".  Okay so far.  But then it, without evidence or explanation, finds that the business offices were not related to the buying or selling of goods.  Huh?  Certainly the offices were not used for the display of merchandise, but that doesn't mean the offices were not related to the buying and selling of goods.  Unless the offices were used exclusively as living quarters or as gymnasiums, whatever went on within them undoubtedly related to the buying and selling of goods, e.g. placing orders, storing receipts, performing bookkeeping, etc.

To make this logical omission appear persuasive, the opinion must ignore both P v. Hallam and P v. Garcia.  The opinion achieves the latter and fails in the former.

There is a disciplined dissent by P.J. Rushing.  After reminding the majority that the crime of burglary is completed upon the initial entrance, he examines P v. Hallam, and finds it on-point.

As Hallam and the tripe at hand are irreconcilable, look for the California Supreme Court to possibly grant review on this issue in the future.