People v. Lopez

IN THE SUPREME COURT OF

CALIFORNIA

PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY LOPEZ,

Defendant and Appellant.

S250829

Fifth Appellate District

F074581

Tulare County Superior Court

VCF314447

April 30, 2020

Justice Chin authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,

Kruger, and Groban concurred.

PEOPLE v. LOPEZ

S250829

Opinion of the Court by Chin, J.

Defendant Anthony Lopez entered a Walmart and stole

items worth $496.37. He was charged with shoplifting and

theft, but was convicted solely of theft because the jury could not

reach a verdict on shoplifting. On appeal, defendant raised a

claim that his conviction must be reversed because he had been

charged in violation of Penal Code section 459.5, subdivision (b)1

(section 459.5(b)), which provides: “Any act of shoplifting as

defined in subdivision (a) shall be charged as shoplifting. No

person who is charged with shoplifting may also be charged with

burglary or theft of the same property.” (Italics added.) The

Court of Appeal recognized that defendant had been improperly

charged with shoplifting and theft of the same property.

Nevertheless, it affirmed the conviction, reasoning that

defendant was not prejudiced by his trial counsel’s failure to

object to the charges, because section 459.5(b) would have

permitted the prosecutor to respond to any such objection by

amending the information to charge shoplifting and theft in the

alternative, which would have resulted in the same theft

conviction. We granted review to determine the scope of section

459.5(b)’s limits on prosecutorial charging discretion.

Before this court, the parties agree that section 459.5(b)

precludes charging shoplifting and theft of the same property,

1

All statutory references are to the Penal Code, unless

otherwise specified.

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even in the alternative. But they disagree whether section

459.5(b) would have permitted the prosecutor to amend the

information (1) to charge shoplifting such that petty theft would

have been a lesser included offense under the accusatory

pleading test or (2) to charge solely petty theft.

We hold that section 459.5(b) prohibits charging

shoplifting and theft of the same property, even in the

alternative. But a prosecutor may charge shoplifting with an

allegation stating that “the value of the property taken does not

exceed $950,” such that petty theft is an uncharged lesser

included offense under the accusatory pleading test. Consistent

with the principles governing instructions on lesser included

offenses, if shoplifting is so charged, and if there is substantial

evidence from which a jury could conclude that the defendant

committed petty theft but not shoplifting, the trial court is

required to instruct the jury on petty theft, and the jury is

required to return an acquittal on shoplifting before it may

return a verdict on petty theft.

Additionally, we hold that, as a general rule, section

459.5(b) prohibits a prosecutor from charging theft when there

is probable cause that a defendant has committed shoplifting of

the same property. As an exception to this general rule,

however, even when there is probable cause that a defendant

has committed shoplifting, a prosecutor may charge theft

instead of shoplifting if the prosecutor can articulate a theory

supported by the evidence under which the defendant would be

guilty of theft but not shoplifting.

Having so interpreted section 459.5(b), we reverse the

judgment of the Court of Appeal and remand for further

proceedings consistent with our opinion.

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I. FACTUAL AND PROCEDURAL HISTORY

On February 12, 2015, defendant Anthony Lopez and a

female companion were inside a Walmart store when they

attracted the attention of a Walmart asset protection officer.

After noticing defendant select a home stereo unit, the asset

protection officer followed defendant throughout the store and

watched as defendant placed items into an empty Walmart

plastic bag within his shopping cart. When the couple reached

the register, defendant’s female companion paid for the items

that she had placed in the cart, but defendant pushed the cart

towards the exit without paying for his items. As soon as the

couple exited the store, the asset protection officer confronted

defendant, who admitted that he had not paid for the

merchandise. The asset protection officer identified the

unpurchased items—a home stereo unit, a candle wax warming

kit, a flashlight, and a TV wall mount—and determined their

combined value to be $496.37.

Later, defendant told the police that he had gone to

Walmart with $5 to purchase a few items, but with no intention

of stealing anything. According to defendant, once he was inside

the store, he decided he needed money, so he placed some items

into his shopping cart and left without paying for them.

Initially, the prosecutor filed a complaint charging

defendant with felony shoplifting under section 459.5,

subdivision (a) (section 459.5(a)). Ultimately, the prosecutor

filed an amended information charging defendant with felony

shoplifting under section 459.5(a) and felony petty theft with

priors under sections 484, subdivision (a), and 666. For

purposes of both felony charges, the amended information

alleged that defendant had suffered a prior conviction requiring

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him to register as a sex offender under section 290. (See §§

459.5(a); 666, subds. (a), (b).) For purposes of the petty theft

with priors charge only, the information also alleged that

defendant had suffered multiple prior theft convictions and

served multiple prior prison terms.2 (See § 666, subd. (a).)

Defendant did not demur to the amended information or

otherwise object to the charges.

On August 29 to 30, 2016, the court held a bifurcated trial.

After requesting a read-back of testimony and asking three

questions, the jury submitted a note to the court stating that it

was “split on the decision for shoplifting, based on intent.”

Ultimately, the jury found defendant guilty of petty theft, but it

could not reach a verdict on shoplifting. The court declared a

mistrial on the shoplifting charge and, upon the prosecution’s

motion, dismissed it. In a bench trial, the court found true all

the remaining allegations.3

On appeal, defendant raised a claim that his conviction

must be reversed because section 459.5(b) prohibits a person

who is “charged with shoplifting” from “also be[ing] charged

with burglary or theft of the same property.” Anticipating that

this claim may have been forfeited, defendant also raised a claim

that his trial counsel had rendered constitutionally ineffective

assistance by failing to demur to the amended information or

otherwise object to the charges.

2

The amended information included several additional

allegations that are not relevant to the issues before us.

3

For purposes of the petty theft with priors charge, the

parties had stipulated to the truth of the allegation that

defendant had suffered a qualifying prior theft conviction. (See

§ 666, subd. (a).)

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In response, the Attorney General conceded that the

prosecutor had violated section 459.5(b) by charging shoplifting

and theft in the conjunctive but contended that defendant’s

improper charging claim had been forfeited. Additionally, the

Attorney General argued that defendant was not prejudiced by

his trial counsel’s failure to object to the charges, because section

459.5(b) would have permitted the prosecution to respond to

such an objection by amending the information to charge

shoplifting and theft of the same property in the alternative,

which would have resulted in the same theft conviction.

The Court of Appeal agreed with the Attorney General and

affirmed the conviction. We granted defendant’s petition for

review and ordered briefing on several questions related to

section 459.5(b).

II. DISCUSSION

“Proposition 47 has generated many interpretive issues

for this court.” (People v. Valenzuela (2019) 7 Cal.5th 415, 423

(Valenzuela).) This case is no exception.

In the 2014 general election, Californians passed this

voter initiative to “ ‘[r]equire misdemeanors instead of felonies

for nonserious, nonviolent crimes like petty theft and drug

possession, unless the defendant has prior convictions for

specified violent or serious crimes.’ ” (People v. Gonzales (2017)

2 Cal.5th 858, 870 (Gonzales), quoting Voter Information Guide,

Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70

(Voter Information Guide).) As is relevant here, the measure

added section 459.5 to the Penal Code, “carving out” the new

offense of “ ‘shoplifting’ ” from the preexisting offense of

burglary. (People v. Martinez (2018) 4 Cal.5th 647, 651.) Before

Proposition 47, any entry into a commercial establishment with

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the intent to commit larceny was second degree burglary.

(§§ 459 [definition of burglary], 460 [degrees of burglary].) After

Proposition 47, this conduct is shoplifting if the establishment

is open during regular business hours and the property taken or

intended to be taken is worth $950 or less, but “[a]ny other entry

into a commercial establishment with intent to commit larceny”

continues to be second degree burglary. (§ 459.5(a), italics

added.) While shoplifting “shall be punished as a misdemeanor”

unless the defendant has a prior conviction as specified in

section 459.5(a), second degree burglary remains an alternative

felony-misdemeanor or wobbler. (§§ 459.5(a) [punishment for

shoplifting], 461 [punishment for burglary]; see People v. Colbert

(2019) 6 Cal.5th 596, 599 (Colbert).)

Of course, if a person enters a commercial establishment

with the intent to commit theft and carries out his or her

intent—by taking another’s property without consent and with

the intent to permanently deprive the owner of the property—

that person also commits theft.4 (§ 484, subd. (a).) Therefore, a

4

After Proposition 47, this conduct is petty theft if the

property taken is worth $950 or less. (§§ 486–488, 490.2.)

Under section 490.2, petty theft is punishable as misdemeanor

petty theft unless the defendant has a prior conviction as

specified in that section. But under section 666, petty theft is

punishable as wobbler petty theft with priors if the defendant

has a qualifying prior theft conviction, has served a term in a

penal institution as a result of that theft conviction, and has

another qualifying prior conviction as specified in that section.

Proposition 47 eliminated the former wobbler of petty theft with

three theft priors, as defined by former section 666, subdivision

(a), and amended the former wobbler of petty theft with one

theft prior and one additional prior, as previously defined by

former section 666, subdivision (b) and as currently defined by

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single course of conduct may constitute both shoplifting and

theft or both burglary and theft.

Section 459.5(b) limits a prosecutor’s charging discretion

in this context. It provides: “Any act of shoplifting as defined in

subdivision (a) shall be charged as shoplifting. No person who

is charged with shoplifting may also be charged with burglary

or theft of the same property.” We granted review to determine

whether these directives permit a prosecutor to charge

shoplifting and theft of the same property in the alternative; to

charge shoplifting such that petty theft would be a lesser

included offense under the accusatory pleading test; or to charge

theft instead of shoplifting when there is evidence that the

defendant may have committed shoplifting.

A. Charging Shoplifting and Theft of the Same

Property

1. Background

On appeal, both the Attorney General and the Court of

Appeal acknowledged that the plain meaning of section

459.5(b)’s second directive—“[n]o person who is charged with

shoplifting may also be charged with burglary or theft of the

same property”—prohibits charging shoplifting and theft, even

in the alternative. (See People v. Lopez (2018) 26 Cal.App.5th

382, 386–392 (Lopez).) But the Attorney General argued, and

the court agreed, that a literal reading of this language would

lead to absurd results and contradict voters’ intent in cases

where it is unclear whether defendant formed the intent to

section 666, subdivisions (a) and (b). (Voter Information Guide,

text of Prop. 47, § 10, p. 72.) For ease of reference, we refer to

the current wobbler as “petty theft with priors.”

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commit theft before or after he entered the commercial

establishment. In these cases, if the prosecution charges theft,

an “act of shoplifting” could be charged as theft—apparently in

violation of section 459.5(b)’s first directive that “[a]ny act of

shoplifting . . . shall be charged as shoplifting.” But if the

prosecution charges shoplifting, a defendant who has committed

theft could escape criminal liability simply because the jury

entertains a reasonable doubt that he possessed the intent to

commit theft upon entry—an “absurd” result in the view of the

Attorney General and the Court of Appeal. (Lopez, at p. 392.)

Using the facts of this case, the Attorney General

illustrated these points: “[The prosecutor] could have charged

appellant [Lopez] with petty theft. By the plain meaning of

section 459.5, she could not have also charged shoplifting, even

as an alternative charge—in choosing to charge appellant with

petty theft, she would be precluded from charging shoplifting.

However, appellant could then simply argue that his intent to

commit theft was formed prior to his entry into Walmart. As

the prosecutor pointed out, he only had five dollars at the time

and also brought an empty bag to conceal merchandise. If the

jury found this to be true, then appellant’s conduct would

constitute shoplifting and the prosecutor will necessarily have

violated section 459.5’s requirement that conduct constituting

shoplifting be charged as shoplifting. [¶] Alternatively, the

prosecutor could have charged appellant with shoplifting.

Under the plain meaning of section 459.5, the prosecutor could

not also charge petty theft, even as an alternative charge. But

appellant could then argue that his intent to commit theft was

formed after his entry into Walmart. And if the jury found this

to be true, . . . then the prosecutor has failed to prove the

shoplifting charge. Because she was not permitted to

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alternatively charge petty theft (or any other theft offense),

appellant faces no criminal consequences even though it may be

apparent that he has committed a crime.”

In sum, the Attorney General took the position that the

section 459.5(b) “should be interpreted to permit alternative

charging of shoplifting and other theft-related offenses while

continuing to prevent multiple convictions based on theft of the

same property.” The Court of Appeal agreed, holding that

section 459.5(b) does not prohibit charging shoplifting and theft

of the same property in the alternative “when the element of

intent upon entering the commercial establishment is absent or

in question.” (Lopez, supra, 26 Cal.App.5th at p. 390.)

2. Discussion

Despite prevailing below, the Attorney General adopts a

different position before this court. He now agrees with

defendant that section 459.5(b)’s second directive “prohibits a

prosecutor from charging a defendant with both shoplifting and

petty theft of the same property, even in the alternative.”

Before interpreting section 459.5(b), we briefly review the

canons that guide our process. In construing a voter initiative,

“ ‘[W]e apply the same principles that govern statutory

construction.’ [Citation.] As a law adopted by the voters, ‘their

intent governs.’ [Citation.] In ascertaining that intent, ‘we turn

first to the language of the statute, giving the words their

ordinary meaning.’ [Citation.] This language is interpreted in

the context of the statute as a whole, as well as the overall

statutory scheme. [Citation.]” (Valenzuela, supra, 7 Cal.5th at

p. 423.)

We begin with the observation that section 459.5(b)’s

second directive—“[n]o person who is charged with shoplifting

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may also be charged with burglary or theft of the same

property”—must be read together with its first directive—“[a]ny

act of shoplifting . . . shall be charged as shoplifting.” Together,

these directives must be understood in light of section 459.5(a)’s

provision that “[s]hoplifting shall be punished as a

misdemeanor” unless the defendant has suffered a specified

prior conviction, and in light of Proposition 47’s purpose to

“ ‘[r]equire misdemeanors instead of felonies for nonserious,

nonviolent crimes like petty theft and drug possession, unless

the defendant has prior convictions for specified violent or

serious crimes.’ ” (Gonzales, supra, 2 Cal.5th at p. 870, quoting

Voter Information Guide, text of Prop. 47, § 3, subd. (3), p. 70;

see Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [“One of

Proposition 47’s primary purposes is to reduce the number of

nonviolent offenders in state prisons, thereby saving money and

focusing prison on offenders considered more serious under the

terms of the initiative.”].)

When section 459.5(b) is read in this context, it appears

that Proposition 47’s voters primarily intended the subdivision’s

charging directives to ensure that defendants who commit an

“act of shoplifting”—but who have not suffered a specified prior

conviction—are charged with and convicted of a single

misdemeanor offense. In other words, the voters made a

determination that the conduct that they defined as shoplifting

deserves a single misdemeanor conviction, and they wanted to

prevent prosecutors from circumventing this determination by

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charging and convicting such conduct as felony burglary, felony

theft, both shoplifting and theft, or both burglary and theft.5

Although we are not bound by their interpretation of the

law, we agree with the parties that section 459.5(b)’s second

directive unambiguously prohibits charging shoplifting and

theft of the same property, even in the alternative, and that the

plain meaning of the directive should control. (See Desny v.

Wilder (1956) 46 Cal.2d 715, 729 [court not bound to accept

parties’ concessions on issues of law]; Bradley v. Clark (1901)

133 Cal. 196, 209–210 [same].) We recognize the Court of

Appeal’s concern that this interpretation may lead to the

unintended consequence that a defendant who has committed

theft may escape criminal liability simply because he is charged

with shoplifting and the jury entertains a reasonable doubt

about one of shoplifting’s elements. But we are not persuaded

that this possibility is so absurd as to justify a departure from

the plain meaning of the statutory language. (See Lopez v. Sony

Electronics, Inc. (2018) 5 Cal.5th 627, 638 [“To justify departing

from a literal reading of a clearly worded statute, the result

must be so unreasonable that the Legislature could not have

intended it.”].)

First, as we explain below, we believe prosecutors can

avoid this unintended consequence by charging shoplifting such

5

As previously explained, a single course of conduct may

constitute both shoplifting and theft or both burglary and theft.

(See ante, at pp. 6–7.) Generally, a defendant may be charged

with and convicted of (but not punished for) multiple offenses

based on the same course of conduct. (See §§ 954 [permitting

multiples charges and multiple convictions], 654 [prohibiting

multiple punishment]; People v. Reed (2006) 38 Cal.4th 1224,

1225.)

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that petty theft is an uncharged lesser included offense under

the accusatory pleading test. (See post, at pp. 12–18.) Second,

both the statutory language and the Voter Information Guide

indicate that Proposition 47 was intended to prohibit multiple

charges based on shoplifting conduct—not merely multiple

convictions, as the Attorney General argued on appeal. To this

end, the Voter Information Guide specifically informed voters

that “shoplifting property worth $950 or less” could have been

“charged as burglary, which is a wobbler” prior to Proposition

47, but “would always be a misdemeanor and could not be

charged as burglary” if the Proposition 47 passed. (Voter

Information Guide, analysis of Prop. 47 by Legislative Analyst,

p. 35, italics added; see Colbert, supra, 6 Cal.5th at p. 599

[“[Section 459.5(b)] limits a prosecutor’s discretion in charging.”

(Italics added.)].) Although we do not know why Proposition 47’s

drafters chose to prohibit multiple charges rather than multiple

convictions, one possible reason is that a prohibition on multiple

convictions would have allowed a jury to find a defendant guilty

of burglary or theft charged as a felony before returning a

verdict on an alternative charge of misdemeanor shoplifting.

(See §§ 459.5, subds. (a) [“Shoplifting shall be punished as a

misdemeanor” unless defendant has a specified prior

conviction.], (b) [“Any act of shoplifting . . . shall be charged as

shoplifting.”].) Accordingly, we read section 459.5(b) to be a

prohibition on multiple charges, as it is written.

B. Charging Shoplifting with Petty Theft as a

Lesser Included Offense

Before this court, the Attorney General advances two

arguments as to why defendant was not prejudiced by trial

counsel’s failure to object. First, we consider his contention that

the prosecutor could have responded to an objection by

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amending the information to charge shoplifting such that petty

theft would be a lesser included offense under the accusatory

pleading test.

A trial court has a sua sponte duty to instruct the jury on

any uncharged lesser offense that is necessarily included in a

charged offense if there is substantial evidence from which the

jury could reasonably conclude that the defendant committed

the lesser included offense but not the charged offense. (People

v. Smith (2017) 57 Cal.4th 232, 244.) “To determine if an offense

is lesser and necessarily included in another offense for this

purpose, we apply either the elements test or the accusatory

pleading test. ‘Under the elements test, if the statutory

elements of the greater offense include all of the statutory

elements of the lesser offense, the latter is necessarily included

in the former. Under the accusatory pleading test, if the facts

actually alleged in the accusatory pleading include all of the

elements of the lesser offense, the latter is necessarily included

in the former.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404,

quoting People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.)

Once instructed on a lesser included offense, a jury may find

defendant guilty of that offense, but only after it has returned

an acquittal on the charged offense. (People v. Kurtzman (1988)

46 Cal.3d 322, 330 (Kurtzman); see § 1159 [“The jury, or the

judge if a jury trial is waived, may find the defendant guilty of

any offense, the commission of which is necessarily included in

that with which he is charged, or of an attempt to commit the

offense.”]) The defendant may not be convicted of both offenses;

if substantial evidence supports the conviction of the charged

offense, a conviction of the lesser included offense will be set

aside. (People v. Moran (1970) 1 Cal.3d 755, 763.)

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Here, the Attorney General argues that section 459.5(b)

does not prevent a prosecutor from charging shoplifting with an

allegation that “the value of the property taken does not exceed

$950,” such that petty theft is a necessarily included offense of

shoplifting under the accusatory pleading test.6 He posits that,

had defendant’s trial counsel objected to the charges, the

prosecutor could have responded by amending the information

to charge shoplifting in this manner and, if so, the court would

have been required to instruct the jury on petty theft as an

uncharged lesser included offense of shoplifting.7 In the

Attorney General’s view, this would have led to a conviction of

petty theft. In response, defendant contends that this practice

would constitute an improper end run around section 459.5(b)’s

prohibition on charging shoplifting and “also” theft, thereby

allowing the prosecution “to do implicitly what it was prohibited

6

Petty theft is not a necessarily included offense of

shoplifting under the elements test because the elements of

shoplifting do not require a taking. In other words, a defendant

can commit shoplifting without also committing petty theft—as

when he enters a commercial establishment while it is open

during regular business hours with the intent to commit theft of

property worth $950 or less, but does not take anything.

7

In the shoplifting count of the amended information, the

prosecutor alleged that defendant “did unlawfully, with intent

to commit theft, enter a commercial establishment during

regular business hours, to wit, WALMART, where the property

taken or intended to be taken was valued at less than $950.00.”

(Italics added.) The Attorney General acknowledges that, as

charged in the amended information, petty theft was not a

necessarily included offense of shoplifting under the accusatory

pleading test, because defendant could have committed

shoplifting as charged without also committing petty theft—if

he entered Walmart with the intent to commit theft, but did not

take anything.

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from doing explicitly” and “[e]ffectively restoring the

prosecutorial discretion that the voters plainly intended to take

away.” Additionally, defendant warns that this practice would

mark an “unwarranted and problematic expansion of the

accusatory pleading test,” inviting prosecutors to allege

extraneous facts to make “nearly any crime” a lesser included

offense of a charged offense.

We agree with the Attorney General that, consistent with

section 459.5(b), a prosecutor may charge shoplifting with an

allegation that “the value of the property taken does not exceed

$950,” such that petty theft is an uncharged lesser included

offense of shoplifting under the accusatory pleading test. In

accord with the principles governing instructions on lesser

included offenses, if shoplifting is so charged and if there is

substantial evidence the defendant has committed petty theft

but not shoplifting, the trial court must instruct the jury on

petty theft, and the jury must return an acquittal on the

shoplifting charge before it may return a verdict on petty theft.

If defendant is convicted of shoplifting, he may not also be

convicted of petty theft.

First, charging shoplifting with an allegation that “the

value of the property taken does not exceed $950” neither

requires nor permits prosecutors to allege facts extraneous to a

shoplifting charge.8 Section 952 allows prosecutors to charge an

8

We agree with defendant that section 459.5(b) forbids

prosecutors from alleging facts extraneous to a shoplifting

charge in an attempt to circumvent the prohibition on charging

both shoplifting and theft of the same property. To use the facts

of this case as an example, if the prosecutor had charged solely

shoplifting, she could not have alleged that defendant had

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offense “in the words of the enactment describing the offense or

declaring the matter to be a public offense, or in any words

sufficient to give the accused notice of the offense of which he is

accused.” Section 459.5(a) defines shoplifting 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).” (Italics added.)

Therefore, not only is an allegation that “the value of the

property taken does not exceed $950” directly relevant to one of

the elements of shoplifting, but it also tracks the “words of the

enactment describing the offense.” (§ 952.) Additionally, this

allegation commits the prosecution to the theory that defendant

stole the property after entering with the intent to steal it,

thereby providing the defendant with greater notice of “the

offense of which he is accused.” (Ibid.)

Second, we find this practice to be consistent with the

section 459.5(b)’s directive that “[n]o person who is charged with

shoplifting may also be charged with burglary or theft of the

same property.” (Italics added.) When there is substantial

evidence from which a jury could reasonably conclude that a

defendant committed an uncharged lesser offense that is

necessarily included in the charged offense, the trial court is

required to instruct the jury on the uncharged lesser included

offense. Because lesser included offenses are not formally

charged in separate counts of an accusatory pleading, we have

consistently referred them as “uncharged” offenses. (See, e.g.,

suffered a qualifying prior theft conviction and served a

qualifying prior prison term, because such allegations would be

relevant only to the uncharged section 666 petty theft with

priors offense.

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People v. Eid (2014) 59 Cal.4th 650, 655, 656, 660; People v. Reed

(2006) 38 Cal.4th 1224, 1227, 1229, 1231.)

Third, we reject defendant’s assertion that Proposition

47’s voters “made clear that they wanted the jury [to be]

presented with an all-or-nothing choice”—shoplifting or

acquittal. As mentioned above, we believe the voters wanted to

prevent prosecutors from circumventing their determination

that shoplifting conduct deserves a single misdemeanor

conviction by charging and convicting such conduct as felony

burglary, felony theft, both shoplifting and theft, or both

burglary and theft. But nothing indicates that the voters

wanted to prevent the jury from considering whether a

defendant committed petty theft when the evidence would

support a finding that the defendant committed petty theft but

not shoplifting. If the jury were precluded from considering

petty theft as an uncharged lesser included offense of

shoplifting, prosecutors would be left with no way to avoid the

unintended consequence that a defendant who commits theft

may escape criminal liability simply because the jury entertains

a reasonable doubt about one of shoplifting’s elements.

Although Proposition 47 was intended to reduce penalties for

“nonserious, nonviolent crimes like petty theft,” nothing

suggests that the measure was intended to eliminate the

penalties altogether. (Gonzales, supra, 2 Cal.5th at p. 870,

quoting Voter Information Guide, text of Prop. 47, § 3, subd. (3),

p. 70; see §§ 459.5(a) [“Any other entry into a commercial

establishment with intent to commit larceny is burglary.”];

490.2, subd. (a) [“[O]btaining any property by theft where the

value of the . . . property taken does not exceed nine hundred

fifty dollars ($950) shall be considered petty theft and shall be

punished as a misdemeanor,” unless the defendant has a

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specified prior conviction.].) Additionally, barring the jury from

considering petty theft as an uncharged lesser included offense

of shoplifting would “impair the jury’s truth-ascertainment

function.” (People v. Barton (1995) 12 Cal.4th 186, 196.) As we

have explained, the purpose of the rule requiring courts to

instruct juries on necessarily included offenses is “to assure, in

the interest of justice, the most accurate possible verdict

encompassed by the charge and supported by the evidence.”

(People v. Breverman (1998) 19 Cal.4th 142, 161.) “ ‘[T]he rule

prevents either party, whether by design or inadvertence, from

forcing an all-or-nothing choice between conviction of the stated

offense on the one hand, or complete acquittal on the other.’ ”

(People v. Smith, supra, 57 Cal.4th at p. 239, quoting People v.

Birks (1998) 19 Cal.4th 108, 119.)

Finally, when construing voter initiatives, we presume the

voters were “aware of existing laws and the judicial construction

thereof.” (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.)

Therefore, we presume Proposition 47’s voters were aware of the

principles discussed above that would permit a defendant

charged with shoplifting to be convicted of an uncharged lesser

included offense of petty theft when the evidence would support

a finding that defendant committed petty theft but not

shoplifting.

C. Charging Theft Instead of Shoplifting

Next, we turn to the Attorney General’s argument that the

prosecutor could have responded to an objection by amending

the information to charge solely theft.

The Attorney General does not dispute that section

459.5(b)’s first directive—“[a]ny act of shoplifting . . . shall be

charged as shoplifting”—prohibits a prosecutor from charging

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theft of the same property when the evidence is “clear” that

defendant’s conduct constitutes an “act of shoplifting.” But

when the evidence is “ambiguous,” he argues that a prosecutor

may charge theft if there is “probable cause to believe [a

defendant] committed only theft.” Under his reasoning, had

defendant’s trial counsel objected to the charges, the prosecutor

could have responded by amending the information to charge

solely theft, which would have led to the same theft conviction.

In defendant’s view, a prosecutor’s initial discretion to charge

shoplifting or theft “can be given meaningful deference,” but

once a prosecutor has charged shoplifting, section 459.5(b)

generally prohibits her from amending the accusatory pleading

to substitute a theft charge for the original shoplifting charge.

And while there may be some cases where section 459.5(b) would

permit such an amendment—for example, if a defendant

charged with shoplifting later testified that he formed the intent

to steal after entering a commercial establishment—this is not

one of them. Therefore, defendant argues, had his trial counsel

objected to the charges, the prosecutor could not have pursued

the theft charge only, and the result would have been a hung

jury on the original shoplifting charge.

As the Attorney General observed in the court below,

“ ‘[S]ection 459.5 presumes that it will be clear whether a

defendant’s conduct constitutes shoplifting or not, before the

prosecutor makes the charging decision.’ ” (Lopez, supra, 26

Cal.App.5th at p. 389.) But this presumption does not apply

universally, as the facts of this case demonstrate. If defendant

possessed the intent to commit theft upon entering the Walmart

store, he committed both shoplifting and petty theft; if he formed

the intent once inside, he committed petty theft only. Consider

another example: a defendant enters a pawn shop with the

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intent to commit theft and steals a diamond ring with an

undetermined value. If the ring is worth $950 or less, the

defendant committed shoplifting and petty theft; but if the ring

is worth more than $950, he committed second degree burglary

and grand theft. (See § 487, subd. (a) [grand theft].) In our

system, only the factfinder—the jury or the court, if a jury trial

is waived—can make the determination that a defendant has

committed the criminal offense of shoplifting, but the factfinder

may do so only if the prosecutor charged shoplifting in the first

place. Consequently, in cases where it is unclear at the time of

charging whether defendant committed an “act of shoplifting,”

section 459.5(b)’s first directive is ambiguous.

Once again, Proposition 47’s voters likely intended section

459.5(b)’s charging directives to prevent prosecutors from

circumventing their determination that shoplifting conduct

deserves a single misdemeanor conviction by charging and

convicting such conduct as felony burglary, felony theft, both

shoplifting and theft, or both burglary and theft. Therefore, we

presume the voters generally would have preferred prosecutors

to charge shoplifting instead of burglary or theft when a

defendant may have committed shoplifting. That way, the jury

generally will have the opportunity to decide whether a

defendant actually committed an “act of shoplifting” and, if so,

the defendant will be convicted of shoplifting only.

Accordingly, we conclude that, as a general rule, section

459.5(b) prohibits a prosecutor from charging burglary or theft

instead of shoplifting when there is probable cause that a

defendant has committed shoplifting of the same property.

Therefore, in the common situation where a defendant is

apprehended leaving a store with unpurchased merchandise

worth $950 or less, the prosecutor may charge shoplifting only—

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Opinion of the Court by Chin, J.

even though there would also be probable cause to support a

charge of petty theft. As we stated in Gonzales, supra, 2 Cal.5th

858, at page 876, “A defendant must be charged only with

shoplifting when the statute applies. [Section 459.5] expressly

prohibits alternate charging and ensures only misdemeanor

treatment for the underlying described conduct.” (Italics

added.)

We also agree with the Attorney General, however, that

there are exceptions to this general rule. Even when there is

probable cause that a defendant has committed shoplifting,

section 459.5(b) does not prevent a prosecutor from charging

burglary or theft instead of shoplifting—initially, or in an

amendment to the accusatory pleading within the constraints of

section 1009—if the prosecutor can articulate a theory

supported by the evidence under which the defendant would be

guilty of the charged offense but not shoplifting.9 In these cases,

section 459.5(b)’s prohibition on “alternate charging” does not

apply. (Gonzales, supra, 2 Cal.5th at p. 896.)

To illustrate these points, we use the facts of this case.

The asset protection officer observed defendant place items into

9

As is relevant here, section 1009 provides: “An indictment

or accusation cannot be amended so as to change the offense

charged, nor an information so as to charge an offense not shown

by the evidence taken at the preliminary examination. A

complaint cannot be amended to charge an offense not

attempted to be charged by the original complaint, except that

separate counts may be added which might properly have been

joined in the original complaint.” We also observe that after a

defendant has pleaded not guilty, the prosecutor may not amend

a complaint to include prior conviction allegations in an attempt

to convert a misdemeanor trial into a felony trial. (See §§ 682,

737, 969a, 969.5, 1009; see also Cal. Const. art. IV, § 5,

subd. (e).)

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Opinion of the Court by Chin, J.

an empty Walmart plastic bag within his shopping cart and exit

the store without paying for them. Defendant then admitted

that he had not paid for the items, and the asset protection

officer determined their combined value to be $496.37.

Although these facts constitute probable cause that defendant

committed both shoplifting and petty theft, section 459.5(b)’s

general rule—that a prosecutor may charge only shoplifting

when there is probable cause that the defendant has committed

shoplifting—would have prohibited the prosecutor from

charging defendant with petty theft based on this evidence.

Now, consider the added facts that defendant later told the

police that he had gone to Walmart with no intention of stealing

anything and only decided to take the items once he was inside

the store. Because these facts would support a theory that

defendant committed petty theft but not shoplifting—that

defendant stole items but that he did not have the intent to steal

the items when he entered the store—section 459.5(b) would not

have prevented the prosecutor from charging defendant with

petty theft instead of shoplifting based on all the evidence.10

Although Proposition 47’s voters intended to limit

prosecutorial charging discretion, we do not believe they wanted

to require a prosecutor to charge shoplifting instead of burglary

or theft when the evidence would support a theory that

defendant committed burglary or theft but not shoplifting. As

10

Even within this exception to section 459.5(b)’s general

rule that a prosecutor may charge only shoplifting when there

is probable cause that the defendant has committed shoplifting,

however, section 459.5(b) only allows the prosecutor to charge

theft instead of shoplifting, not in addition to shoplifting. (See

ante pp. 11–12.)

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Opinion of the Court by Chin, J.

mentioned above, the voters made a determination that

shoplifting conduct (without any of the specified prior

convictions) deserves a single misdemeanor conviction; but they

also made clear that “[a]ny other entry into a commercial

establishment with intent to commit larceny” remains

punishable as wobbler second degree burglary (§ 459.5(b)), and

that “obtaining any property by theft where the value of the . . .

property taken does not exceed nine hundred fifty dollars

($950)” is punishable as misdemeanor petty theft (§ 490.2,

subd. (a)).

A contrary rule—one that would require a prosecutor to

charge shoplifting instead of burglary or theft in these

situations—raises ethical concerns and constitutional doubts.

As the Attorney General emphasizes, a prosecutor has a duty

“to charge only those offenses she believes she can prove beyond

a reasonable doubt.” (See People v. Catlin (2001) 26 Cal.4th 81,

109, quoting People v. Dunn–Gonzalez (1996) 47 Cal.App.4th

899, 914–915 [“A prosecutor abides by elementary standards of

fair play and decency by refusing to seek indictments until he or

she is completely satisfied the defendant should be prosecuted

and the office of the prosecutor will be able to promptly establish

guilt beyond a reasonable doubt.”].) And, as we have recognized,

“[P]rosecuting authorities, exercising executive functions,

ordinarily have the sole discretion to determine whom to charge

with public offenses and what charges to bring. [Citations.]

This prosecutorial discretion to choose, for each particular case,

the actual charges from among those potentially available arises

from ‘ “the complex considerations necessary for the effective

and efficient administration of law enforcement.” ’ [Citations.]

The prosecution’s authority in this regard is founded, among

other things, on the principle of separation of powers, and

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PEOPLE v. LOPEZ

Opinion of the Court by Chin, J.

generally is not subject to supervision by the judicial branch.

[Citations.]” (People v. Birks, supra, 19 Cal.4th at p. 134; see

Cal. Const., art. III, § 3; People v. Superior Court (Romero)

(1996) 13 Cal.4th 497, 509 [“ ‘If a statute is susceptible of two

constructions, one of which will render it constitutional and the

other unconstitutional in whole or in part, or raise serious and

doubtful constitutional questions, the court will adopt the

construction which, without doing violence to the reasonable

meaning of the language used, will render it valid in its entirety,

or free from doubt as to its constitutionality . . . .’ ”].) When it is

clear that a defendant committed criminal conduct but unclear

whether that conduct constituted shoplifting, forcing the

prosecutor to choose between no charge and a shoplifting charge

that she does not believe she can prove beyond a reasonable

doubt would be a troublesome intrusion upon a prosecutor’s

authority and responsibility to make appropriate charging

determinations on behalf of the People. (See Gov. Code,

§§ 26500, 26501.)

As we explain below, our interpretation of the statutory

scheme is faithful to the voters’ intent that an act of shoplifting

deserves a single misdemeanor conviction whenever a defendant

does not have any of the prior convictions specified in

Proposition 47.

The general rule—that a prosecutor may charge only

shoplifting when there is probable cause that the defendant has

committed shoplifting—is subject to just a few narrow

exceptions. First, where there is probable cause to support

charges of shoplifting and second degree burglary (§§ 459, 460)

or grand theft (§ 487, subd. (a)), a prosecutor may charge the

wobblers of second degree burglary or grand theft instead of

shoplifting under a theory supported by the evidence that the

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PEOPLE v. LOPEZ

Opinion of the Court by Chin, J.

property in question is worth more than $950. But in order to

return a guilty verdict on either of these charges, the jury must

actually find the property to be worth more than $950. (See e.g.,

CALCRIM Nos. 1700, para. 3 [burglary instruction where “the

evidence supports a defense theory that the crime was

shoplifting”], 1801 [grand theft]; CALJIC Nos. 14.50, para. 4

[burglary instruction where “the building entered was a

commercial establishment while that establishment was open

for business during regular business hours”], 14.32 [grand

theft].) Likewise, where there is probable cause to support

charges of shoplifting and second degree burglary, a prosecutor

may charge second degree burglary instead of shoplifting under

a theory supported by the evidence that the defendant did not

enter a commercial establishment open during regular business

hours. But in order to return a guilty verdict on the burglary

charge, the jury must actually find that the structure defendant

entered was not a commercial establishment or that the

defendant entered the commercial establishment outside of its

regular business hours. (See e.g., CALCRIM No. 1700, para. 3;

CALJIC No. 14.50, para. 4.) In these cases, the jury’s

determination that the defendant committed second degree

burglary or grand theft effectively doubles as a determination

that the defendant did not commit shoplifting.

Finally, where there is probable cause to support charges

of shoplifting and petty theft (§§ 487, 490.2), a prosecutor may

charge petty theft instead of shoplifting under a theory

supported by the evidence that the defendant formed the intent

to steal only after entering the commercial establishment. But

petty theft must be charged as a misdemeanor unless the

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Opinion of the Court by Chin, J.

defendant has a prior conviction specified in Proposition 47.11

(§ 490.2, subd. (a); see § 666, subds. (a), (b).) So, even though a

defendant charged with and convicted of petty theft may have

also committed shoplifting, he may only receive a single

misdemeanor conviction for such conduct, provided that he has

not suffered any of the relevant prior convictions.

III. CONCLUSION

We agree with Court of Appeal’s conclusion that defendant

was charged in violation of section 459.5(b)’s prohibition on

charging a person with shoplifting and theft of the same

property. (Lopez, supra, 26 Cal.App.5th at p. 388.) But we

disagree with the court’s holding that section 459.5(b) would

have permitted the prosecutor to charge defendant with

shoplifting and theft in the alternative. Otherwise, we express

no view on the proper resolution of defendant’s claims.

11

The decision to charge petty theft instead of shoplifting

generally will not affect the severity of punishment because the

list of prior convictions to charge petty theft as a felony

(§§ 490.2, subd. (a), 666, subds. (a), (b)) is nearly identical to the

list of prior convictions to charge shoplifting as a felony

(§ 459.5(a)). In a rare case, a defendant who does not have any

of the prior convictions to charge shoplifting as a felony under

section 459.5(a) may have the prior convictions and the prior

term in a penal institution to charge petty theft with priors as a

felony under section 666. Because Proposition 47 amended

section 666’s list of qualifying prior convictions to include some

offenses not listed in section 459.5(a), however, this is a

consequence that the voters could have contemplated. (See ante,

pp. 6–7, fn. 4; Voter Information Guide, text of Prop. 47, § 10,

p. 72; see id. at §§ 5, 8, pp. 71, 72.)

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PEOPLE v. LOPEZ

Opinion of the Court by Chin, J.

For the foregoing reasons, we reverse the judgment of the

Court of Appeal and remand for further proceedings consistent

with our opinion.

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

27

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lopez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 26 Cal.App.5th 382

Rehearing Granted

__________________________________________________________________________________

Opinion No. S250829

Date Filed: April 30, 2020

__________________________________________________________________________________

Court: Superior

County: Tulare

Judge: Kathryn T. Montejano

__________________________________________________________________________________

Counsel:

Caitlin M. Plummer, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,

Assistant Attorney General, R. Todd Marshall, F. Matt Chen, Kathleen A. McKenna and Rachelle A.

Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Caitlin Plummer

Law Office of Lichstein & Plummer

2852 Willamette St., #164

Eugene OR 97405

(541) 505-7895

F. Matt Chen

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-7768