Under Prop 47, Is Passing a Forged Check Shoplifting?

The Gist of this Article: Commercial burglary, when the conduct is cashing a forged check for $300, can qualify under Prop 47 from reduction from a felony to a misdemeanor, depending upon how the prosecutor choses the allegation(s) to plead.

For example, a common context of shoplifting involves someone walking into a shop and then lifting something off a shelf and then walking out of the store without paying for it.  It is a crime of opportunistic theft where the intent to steal is usually formed after entering the store.

In contrast, forgery is a more premeditated offense.  Someone will attempt to impersonate another person for some gain, often financial.  It is more sophisticated in general than shoplifting in that the intent is formed hours, days or weeks before the person tries to pass a bad check, for example.

The distraction between the two offenses is reflected in separate Penal Code sections defining each offense.  Penal Code § 475 defines forgery.  Until November 4, 2014, shoplifting was defined under Penal Code § 484 or § 487, or sometimes § 459, depending on the circumstances of the shoplifting.

On November 4, 2014, California voters passed Proposition 47.  “Prop 47,” as it is known now, reduced certain felony theft and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950.  Proposition 47 also added a new Penal Code section, § 459.5, “shoplifting,” which it defined as “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).”

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This new code section included no definition of what is a commercial establishment.  A series of cases has struggled with what constitutes a commercial establishment.  Is a bank such a commercial establishment for shoplifting?  After all, no bank has stacks of money on shelves that could be shoplifted by someone walking into a bank.

The following case put this issue to the test at the appellate court level.

On July 10, 2013, Willie Abarca walked into a U.S. Bank in Riverside and attempted to cash a check from Newport Coach Works, Inc., for $300.  Abarca gave the check to a teller, who compared his signature to bank records.  Abarca then tried to leave, but was stopped and later arrested by Riverside County Sheriff’s.

The Riverside County District Attorney later charged Mr. Abarca with one count of felony forgery (Penal Code § 475(c)) and one count of felony commercial burglary (Penal Code § 459).  The complaint also alleged that Abarca had five prison priors within the meaning of Penal Code § 667.5(b).

About two months later, Abarca reached a plea bargain wherein he plead guilty to the commercial burglary count and admitted two prison priors.  The judge then dismissed the forgery count and struck the three remaining prison prior allegations.  Abarca was then sentenced to three years in county jail, plus two one year consecutive terms for the remaining prison prior allegations.
 
About one year later, Prop 47 was passed and Abarca petitioned to recall his commercial burglary conviction and resentence him on this charge as a misdemeanor.

The People opposed the petition, arguing that “a bank is not a commercial establishment.”

The trial judge granted the petition and the People appealed the ruling to the Fourth Appellate District.  The People argued that a bank is not a commercial establishment and that Abarca’s underlying conduct could have been punished as felony burglary even after passage of Prop 47 because Abarca’s act of passing a forged check constituted identity theft.

As to whether a bank is a commercial establishment, the court noted, “when attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.” Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.  Black’s Law Dictionary defines “establishment” as “[a]n institution or place of business.” Black’s Law Dict. (7th ed. 1999) p. 566, col. 2.  It defines “commerce” to mean “the exchange of goods and services.” Id. at 263.

A bank, the appellate court ruled, satisfied this definition.  The deposit and withdrawal of funds are services, in exchange for fees.  It is therefore a commercial establishment.
 
As to the second main argument on appeal that identity theft, not larceny or forgery, was the predicate act, the appellate court held that the People forfeited this claim of error by not raising identity theft in the original conviction.  Instead, it charged Abarca with commercial burglary and forgery.  Identity theft was never mentioned, even at the plea hearing.
 
Thus, the appellate court affirmed the trial court’s ruling on Abarca’s petition for resentencing under Prop 47.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Willie Abarca (4th App. Dist., 2016) 2 Cal.App.5th 475.

For more information about , please click on the following articles:

1. Proposition (Prop) 47 and What It Means for Sentencing
2. Can Proposition 47 (Prop 47) Increase One’s Sentence?  Yes
3. Are Theft by Forgery Convictions over $950 Prop 47 Eligible?
   

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