PREMO, J. —
Defendant Mark Anthony Colbert appeals from an order denying his petition to redesignate certain felony convictions as misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal, Colbert contends the trial court erred in ruling these convictions were ineligible for redesignation.
We find no merit to Colbert's arguments and will affirm the order.
I. Factual and Procedural Background
Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six-year prison term he incurred due to a robbery he committed in San Mateo County while out on bail on the burglary charges.
A. Facts relating to count 1
"On December 26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk about lottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone." (People v. Colbert, supra, H019315.)
B. Facts relating to count 2
"On December 30, 1996, Maria Ramirez, the manager of a 7-Eleven store in Sunnyvale, saw two men enter the store together and then separate. One stayed at the front register and purchased lottery tickets and the other went to a back room, came out of it, and left the store. The other then left the store. Both men were six feet tall and were between the ages of 20 to 30 years old. Appellant is under six feet tall and was 40 years old." (People v. Colbert, supra, H019315.)
The trial court's May 12, 2015 order noted that "approximately $318 dollars [sic] was taken [in this burglary]."
C. Facts relating to count 3
"On January 6, 1997, Chuong Doan was working at a 7-Eleven store in Los Gatos when two Black men entered the store. The taller man asked to use the restroom, which Doan would not allow. While the shorter man bought a lottery ticket, the taller man `just walked through.' They then left the store together. Thu Cates, the franchisee, saw a Black man closing the door to the office and later found a bank deposit bag missing. When the man saw Thu, he stated that he was looking for the bathroom. She was unable to identify anyone in a photo lineup. Another employee on her way to work saw two Black men, one with lotto tickets in his hand, get into a maroon car with a dent on the side. She was unable to identify anyone in a photo lineup.
"However, a month later, Doan identified appellant from the photo lineup, and at the preliminary hearing in May 1997, he identified appellant as a man who had been in the store. At trial he was unable to positively identify appellant." (People v. Colbert, supra, H019315.)
According to the trial court's May 12, 2015 order, the bank deposit bag taken in this burglary contained "more than $3000."
D. Facts relating to count 4
"On January 27, 1997, Mohammed Elissa, cashier at a 7-Eleven store in Los Gatos, observed two Black men enter the store together and then split up. The shorter one remained at the cash register and was involved with lottery tickets and the taller man proceeded to the wine cooler and `vanished.' Elissa went to the store office and saw the tall man with a cup of coffee. The man said he was looking for the manager and then he left the area. The tall man
E. Colbert's petition to redesignate under Proposition 47
On May 6, 2015, Colbert petitioned the trial court to redesignate certain of his felony convictions for second degree burglary as misdemeanors pursuant to section 1170.18, subdivision (f). By written order dated May 12, 2015, the trial court denied Colbert's petition, finding that he was not eligible for the relief requested. The trial court noted that, in each case, "[Colbert] and an accomplice entered an establishment and, while one of them distracted the cashier ..., the other snuck into the non-public areas of the building to commit the intended thefts." As a result, the offenses were based "upon entry into a private ... office area and not a commercial establishment that was open during business hours" and could not qualify as "shoplifting" under section 459.5. As an additional basis for denying relief, the trial court noted that the amount stolen in count 3 was over $950. Because Colbert and his accomplice employed the same "modus operandi" in each theft, it "strongly suggests that the amount intended to be taken in each case exceeded $950."
Colbert timely appealed.
Colbert argues he was entitled to redesignation of the three counts at issue because they all involved theft of less than $950 from a commercial establishment during business hours. According to Colbert, the trial court erred by finding that the thefts were based on entry into "private ... office area." He further argues it erred by finding, without any supporting evidence, that Colbert and his companion "intended to take" more than $950 from the stores they entered.
A. Overview of Proposition 47
The office areas from which Colbert and his accomplice stole money were not areas in which goods were bought and sold. There was no merchandise offered for sale in those offices, or at least there is no evidence in the record suggesting there was. Colbert was not interested in stealing the goods on offer in these establishments, otherwise he and his accomplice would have remained in the area where those goods were displayed rather than intruding into the private areas where the employees were likely to keep their personal belongings, such as purses and wallets, and where the business was likely to store larger amounts of cash.
Based on this finding, we need not address the alternative basis for the trial court's denial of Colbert's petition, i.e., that Colbert intended to take property valued in excess of $950. Assuming we needed to reach the issue, however, we think the trial court's finding on this question is not supported by the limited evidence available. It is true that the actual amount Colbert was able to take was less than $950 in three of the four counts.
The order denying the petition for resentencing is affirmed.
Grover, J., concurred.
I respectfully dissent. In my view, Colbert's conduct constituted shoplifting under the plain language of Penal Code section 459.5. Because Colbert has established his eligibility for resentencing under Proposition 47, I would reverse the trial court's order denying the petition.
In each of the four offenses, Colbert and his companion entered a commercial establishment during business hours. They employed the same modus operandi in each instance: While Colbert distracted the store clerk, Colbert's companion snuck into a back office to steal cash. In count 1, the companion stole about $300 in cash at a gas station. In count 2, he stole about $318 in cash at a 7-Eleven convenience store. In count 3, he stole more than $3,000 in cash at another 7-Eleven.
Shoplifting 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)." (Pen. Code, § 459.5, subd. (a).) There is no dispute that each of the four offenses occurred at a "commercial establishment" — e.g., a gas station and three convenience stores. There is also no dispute that Colbert and his companion entered the establishments during business hours.
The majority nonetheless reasons that Colbert and his companion did not commit shoplifting because in each instance the companion entered a private back office area to take the property. The majority concludes that, by entering a private office, Colbert and his companion exited the commercial part of the establishment and entered a discrete area.
I respectfully disagree. Under the plain language of the statute, a defendant commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent. As evidenced by their modus operandi, it is obvious both Colbert and his companion had the intent to commit larceny as soon as they set foot in each establishment. At that point, the offense of shoplifting was complete. Whatever they did after entering the establishment was relevant only insofar as it revealed their preexisting intent to commit larceny. Nothing in the statute or any other authority cited by the majority defines a "commercial establishment" to exclude nonpublic areas of the structure in question. And I do not think a defendant can "exit" an establishment by entering an office inside it.
The Second District Court of Appeal recently considered this issue in People v. Hallam (2016) 3 Cal.App.5th 905 [207 Cal.Rptr.3d 812]. Hallam
The trial court here also ruled that the offenses did not constitute shoplifting based on a finding that Colbert intended to take more than $950 from each establishment. But the statute sets the threshold at "the value of the property that is taken or intended to be taken...." (Pen. Code, § 459.5, subd. (a).) This language sets the threshold at the objective value of the targeted property, not some subjective dollar amount in the defendant's mind. This makes sense because the defendant may have no specific monetary value in mind. Here, for example, Colbert and his companion apparently intended to take whatever cash they could find, regardless of whether it was $300 or $3,000. With the exception of count 3, I see no evidence that the property they intended to take was valued at more than $950. Because the value of the stolen property in counts 1 and 2 fell within the $950 limit, I conclude those offenses constituted shoplifting.
Accordingly, I would reverse the order denying the petition and remand for further proceedings to determine Colbert's eligibility on count 4 and his risk of danger to public safety.