Prop 47: Does Shoplifting Include Breaking into a Machine?

If one hundred people at a Starbucks were asked if shoplifting included breaking into a coin-operated soap dispenser at a laundromat, no more than a few would answer in the affirmative.  After all, the everyday understanding of shoplifting is taking something off a shelf in a store and exiting the store with the item, not paying for it.  

Those that did answer in the affirmative are either not familiar with the common meaning of shoplifting or they read the recent case of People v. Randy Paul Bunyard (2017 DJDAR 2801), a recent Fifth Appellate Court decision interpreting the scope of Proposition 47.

Proposition 47 (“Prop 47”), as the reader may know, allows the resentencing of a limited number of drug possession offenses and theft offenses from felonies to misdemeanors.  It also provides a new section, Penal Code § 459.5 that defines shoplifting as a misdemeanor and describes it as the theft of property where the value is $950 or less.  It further defines shoplifting as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours.”  Any other entry into a commercial establishment with the intent to commit larceny is burglary.  

One can qualify for resentencing of a felony theft offense as a misdemeanor shoplifting offense under Prop 47 as long as the underlying conduct meets the above new description and the person is not a registered sex offender, the person does not have any prior conviction for a “super strike” offense or the resentencing of the individual would not affect public safety.

In 2012, the Los Banos Police Department was dispatched to laundromat at about 7 p.m.  The police officer walked into the laundromat and saw Mr. Bunyard sitting in a chair next to a coin-operated soap dispenser.  The officer saw Bunyard banging on it and trying to pry it up with a screwdriver.  When Bunyard saw the officer, he dropped the screwdriver and tried to run away, but was caught shortly thereafter.

After being taken into custody, he admitted that he was trying to break into the machine and that no one would notice if just $10 or $15 was missing.  Defendant was charged with second degree burglary, in that he unlawfully entered a building with the intent to commit theft (Penal Code § 459), possession of burglary tools (Penal Code § 466) and resisting an officer (Penal Code § 148(a)(1)).  It was further alleged that he had suffered two prior strike convictions for attempted arson and carjacking and had served four prior prison terms.  Bunyard later entered into a plea bargain to violating Penal Code § 459 and admitted his priors.  He was sentenced to ten years in state prison.

On November 1, 2014, voters enacted Prop 47 and Bunyard shortly thereafter filed a written petition to have his sentence recalled and resentenced.  At the trial court level, the prosecutor argued that shoplifting, as defined by Black’s Law Dictionary, “requires the theft of merchandise from a store, specifically larceny of goods.”  Otherwise, the prosecutor argued, bank robbery of less than $950 could be called shoplifting.  

The trial court judge agreed with the prosecutor and denied the petition.  Bunyard then appealed to the Fifth Appellate District Court, arguing that Penal Code § 459.5’s definition of shoplifting applied and although Bunyan broke into a coin-operated machine, the laundromat itself was a business that was open and defendant intended to take $10 or $15, or less than $950.

The Fifth Appellate District agreed with Bunyard, finding that if § 459.5 had been in effect at the time of Bunyard’s conduct, he would have been guilty of shoplifting and thus, the trial court erred in denying his petition.

Therefore, the Fifth Appellate District ordered the case sent back to the trial court for resentencing under Prop 47.  

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