P. v. Roddy

Filed 10/27/16 P. v. Roddy CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL RICHARD RODDY,
Defendant and Appellant.
B264891
(Los Angeles County
Super. Ct. No. GA076631)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Villalobos, Judge. Reversed and
remanded with directions.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Mary Sanchez, Viet H. Nguyen and Andrew
Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Defendant Michael Richard Roddy appeals from the denial
of his petition for resentencing under Proposition 47, the Safe
Neighborhoods and Schools Act. In 2009, Roddy pled guilty to
second degree burglary after he attempted to purchase a cup of
coffee at a Starbucks with counterfeit currency. In June 2015,
Roddy applied to have his felony conviction designated a
misdemeanor under Penal Code section 459.5 (shoplifting), which
was enacted pursuant to Proposition 47.1 The trial court denied
the petition on the ground that Roddy had entered the Starbucks
with the intent to commit forgery, not the intent to commit
larceny, as section 459.5 requires. We conclude that Roddy is
entitled to relief under Proposition 47, and thus we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2009 at approximately 6:00 p.m., Roddy
entered a Starbucks and attempted to purchase a cup of coffee
with a counterfeit twenty-dollar bill. He was charged with
second degree commercial burglary (§ 459), that is, “enter[ing] a
commercial building occupied by Starbucks with the intent to
commit larceny and any felony.”2 On May 14, 2009, Roddy pled
guilty, was placed on formal probation for three years, and was
ordered to serve 150 days in county jail.
On November 4, 2014, voters enacted Proposition 47, which
reduced to misdemeanors certain possessory drug offenses and
thefts of property valued at less than $950. (See People v. Hall
(2016) 247 Cal.App.4th 1255, 1260.) Proposition 47 also created a
1 All further statutory references are to the Penal Code
unless otherwise stated.
2 He was also charged with forgery (§ 476) but that charge
was dismissed.

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new resentencing provision, section 1170.18, under which persons
previously convicted of felonies that were reclassified as
misdemeanors, who have completed their sentences, may petition
to have their felony convictions redesignated as misdemeanors.
(§ 1170.18, subd. (f).)
On June 15, 2015, Roddy filed a section 1170.18 petition for
resentencing, seeking to have his burglary conviction designated
a misdemeanor pursuant to the newly-enacted section 459.5.
Section 459.5 redefined as misdemeanors certain burglaries that
fit the definition of “shoplifting”— that is, “entering a commercial
establishment with the 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).” (§ 459.5, subd. (a),
italics added.)
The trial court denied the petition on the ground that
Roddy’s criminal activity did not “fall within the parameters” of
section 459.5 because “the crime here was an intent to commit a
forgery not a larceny.” Roddy timely appealed.
CONTENTIONS
Roddy contends he was eligible for resentencing under
Proposition 47 because “the intent to commit larceny” in section
459.5 must be read as “the intent to commit theft,” and using
counterfeit money to make a purchase qualifies as theft.
Respondent argues that “the intent to commit larceny” is
narrower than “the intent to commit theft,” and here, Roddy did
not attempt to commit larceny.
DISCUSSION
This appeal turns on the interpretation of the term
“larceny” in section 459.5. The interpretation of a statute is

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subject to de novo review on appeal. (See Kavanaugh v. West
Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,
916.) In construing a voter initiative, “we apply the same
principles that govern statutory construction. [Citation.]”
(People v. Rizo (2000) 22 Cal.4th 681, 685.) “[W]e begin with the
text as the first and best indicator of intent. [Citations.]”
(Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) We
first look “ ‘to the language of the statute, giving the words their
ordinary meaning.’ [Citation.]” (People v. Rizo, supra, at p. 685.)
And we construe the statutory language “in the context of the
statute as a whole and the overall statutory scheme. [Citation.]”
(Ibid.) “ ‘If the text is ambiguous and supports multiple
interpretations, we may then turn to extrinsic sources such as
ballot summaries and arguments for insight into the voters’
intent. [Citations.]’ ” (Kwikset Corp. v. Superior Court, supra,
at p. 321.)
According to respondent, the voters intended section 459.5
to incorporate the “common understanding” of shoplifting, that is,
a trespassory taking of property from a commercial
establishment.3 Respondent disputes Roddy’s contention that
“larceny” should be read broadly as “theft,” and argues that had
the voters intended section 459.5 to encompass all kinds of theft,
“they could have used the term ‘theft’ instead of the term ‘larceny’
in section 459.5.” Respondent further argues that Roddy’s
3 The issue of whether the definition of shoplifting in section
459.5 requires an intent to commit larceny or theft of any kind is
pending before the California Supreme Court. (See, e.g., People
v. Gonzales (2015) 242 Cal.App.4th 35, review granted February
17, 2016, S231171; People v. Vargas (2016) 243 Cal.App.4th 1416,
review granted March 30, 2016, S232673.)

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criminal conduct did not involve larceny and, therefore, he was
not eligible for resentencing.
We first address the contention that the voters intended to
limit section 459.5 to the “common understanding” of shoplifting.
The voters did not leave “shoplifting” undefined or define it by
reference to the common understanding of that term. Rather,
section 459.5 defines “shoplifting” to mean entry into a
commercial establishment during regular business hours with
the “intent to commit larceny” where the value of the property
taken or intended to be taken does not exceed $950. Although
respondent urges us to consider the ballot materials in
interpreting the meaning of the term “larceny,” respondent does
not point to any ambiguity in the statute that would allow us to
do so. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1100
[“ ‘ “If there is no ambiguity in the language of the statute, ‘then
. . . the plain meaning of the language governs.’ ” [Citation.]’ ”].)
We must construe “larceny” in accordance with its
technical, legal definition. (§ 7, subd. (16) [“technical words and
phrases . . . must be construed according to such peculiar and
appropriate meaning.”].) Although “[t]he common law defined
larceny as the taking and carrying away of someone else’s
personal property, by trespass” (People v. Williams (2013)
57 Cal.4th 776, 782), in 1927, the Legislature amended section
484, which consolidated larceny, embezzlement, and obtaining
property by false pretenses into the single crime of “theft.”
(People v. Davis (1998) 19 Cal.4th 301, 304.) Section 490a, which
was enacted at the same time, provides that “any law or statute
. . . [that] refers to or mentions larceny, embezzlement, or
stealing . . . shall hereafter be read and interpreted as if the word
‘theft’ were substituted therefor.”

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We presume the electorate was aware of existing law—
including section 490a—when it adopted Proposition 47. (See
John L. v. Superior Court (2004) 33 Cal.4th 158, 171.) Further,
the phrase “intent to commit larceny” in section 459.5 mirrors the
phrase “intent to commit grand or petit larceny” in the general
burglary statute (§ 459), and “the Legislature has indicated a
clear intent [by enacting section 490a] that the term ‘larceny’ as
used in the burglary statute should be read to include all thefts
. . . .” (People v. Nguyen (1995) 40 Cal.App.4th 28, 31.) The
statutory language here compels the same conclusion, and thus
section 459.5’s use of the term “larceny” must be read as “theft.”
Respondent argues that applying section 490a to section
459.5 would “effect a change in the nomenclature or . . . change
the language of [the] statute,” a result that the Supreme Court
has disapproved. (See People v. Vidana (2016) 1 Cal.5th 632
(Vidana).) The full quote from Vidana, from which respondent
quotes only a portion, demonstrates that the court has not, in
fact, disapproved of such a result, but only observed that section
490a has not yet been applied in that manner: “Although this
court long ago said that ‘the essence of section 490a is simply to
effect a change in nomenclature without disturbing the substance
of any law’ [citations], it does not appear we have ever applied
section 490a to effect a change in nomenclature or to change the
language of any statute.” (Vidana, supra, at p. 647.)
More importantly, in Vidana, the court explained that
“[o]ur cases interpreting section 490a and the 1927 amendment
to section 484 have repeatedly held that the legislation simplified
the procedure of charging larceny, embezzlement, and false
pretense, but did not change their elements. . . . [¶] . . . [¶] . . .
‘The purpose of the consolidation was to remove the technicalities

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that existed in the pleading and proof of these crimes at common
law.’ . . . [Citation.]” (Vidana, supra, 1 Cal.5th at pp. 641-642.)
The court noted that although section 490a broadly provides that
“ ‘[w]herever any law or statute of this state refers to or mentions
larceny, embezzlement, or stealing, said law or statute shall
hereafter be read and interpreted as if the word ‘theft’ were
substituted therefor,’ ” (Vidana, supra, at p. 641) the “literal
application of section 490a would render many statutes
nonsensical.” (Id. at p. 647, italics added.) As an example, the
court cited Vehicle Code section 10502 which provides that an
“ ‘owner of a vehicle . . . which has been stolen or embezzled may
notify the Department of the California Highway Patrol of the
theft or embezzlement, but in the event of an embezzlement [the
victim] may make the report only after having procured the
issuance of a warrant for the arrest of the person charged with
the embezzlement.’ ” (Vidana, supra, at p. 647 (italics added.).)
The court made the point that, if “theft” were substituted for
“embezzlement,” this reporting requirement would be rendered
nonsensical—the statute would then read “ ‘[t]he owner . . . may
notify the Department of the California Highway Patrol of the
theft or theft, but in the event of a theft . . . .’ ” (Ibid.)
The court concluded that section 490a must be applied in
conjunction with its legislative purpose, which was to “ ‘remove
. . . technicalities . . . in the pleading and proof of [theft] crimes
. . . .” (Vidana, supra, 1 Cal.5th at p. 642.) Unlike Vehicle Code
section 10502, which concerns the procedure a victim must follow
when notifying authorities of a theft, section 459.5 sets forth the
elements of the crime of shoplifting. Thus, applying section 490a
to section 459.5 directly implements the purpose of section 490a:
to remove technicalities in the pleading and proof of theft crimes

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such that the prosecution need not “ ‘allege the particular type of
theft involved, such as false pretenses, embezzlement, or larceny
by trick and device.’ [Citation.]” (Vidana, supra, at p. 643.)
Accordingly, we conclude that section 490a requires that the term
“larceny” in section 459.5 be read as “theft.”
Here, Roddy’s criminal conduct involved an attempt to
commit a “theft by false pretenses,” and, therefore, it comes
within the terms of section 459.5. “[T]heft by false pretenses . . .
requires only that ‘(1) the defendant made a false pretense or
representation to the owner of property; (2) with the intent to
defraud the owner of that property; and (3) the owner transferred
the property to the defendant in reliance on the representation.’
[Citation.]” (People v. Williams, supra, 57 Cal.4th at p. 787,
italics omitted.) Roddy’s criminal conduct falls within this
definition because he intended to defraud Starbucks of a cup of
coffee by making a false representation—that is, attempting to
pay with a counterfeit twenty-dollar bill. As Roddy’s criminal
conduct involved an “intent to commit theft,” and there is no
dispute that the other elements of section 459.5 were met here,
we conclude his burglary conviction qualifies as shoplifting under
section 459.5.
We further note that our conclusion is consistent with the
voters’ overall intent in passing Proposition 47, which was 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.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of Prop 47, § 3, subd. (3), p. 70.) Roddy’s attempted theft of a cup
of coffee from Starbucks is precisely the type of nonserious,
nonviolent crime to which Proposition 47 was intended to apply.

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DISPOSITION
The order denying Roddy’s petition is reversed and the
matter is remanded with instructions to grant the petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
STRATTON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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