Feb 182015

Following the passage of Proposition 47 and its enactment on January 1st, a steady stream of misinformation has made its way into the public arena. A colleague of mine reports getting phone calls from people under the completely wrong impression (created by political opponents who campaigned against the reform measure) that cases as serious as sexual assault were now somehow going to be reduced to misdemeanors. That’s not the case, of course. Proposition 47’s impact was significant, but not nearly as substantial as many seem to think.

This somewhat amusing story coming out of the Bay Area serves as a convenient way to remind everyone that “simple theft” cases can still be quite serious in nature. There are a lot of situations that the average person might think of as “theft” or “shoplifting” which, in the eyes of the law, could be construed as something more serious.

In this story (which is somewhat confusingly written), the alleged thief supposedly went into a restaurant, opened up someone’s purse, and took the wallet. The alleged thief then left the restaurant on foot. When stopped, the alleged thief gave the wallet back, without the cash, and then kept going. As the victim protested, the thief said, “I gave you your wallet, what more do you want?” Eventually the alleged thief was detained by the cops, and they handcuffed him (as he struggled somewhat), while he continued to deny having the cash. The cash was then recovered.

Would this kind of offense now be “just” a misdemeanor? Even assuming there was less than $950 cash in the wallet, that’s not at all clear. This kind of “simple” theft could spiral into a series of much more serious charges. An (over)zealous prosecutor might consider charging the case this way:

  • Going into the restaurant for the purpose of stealing the wallet could still be considered FELONY commercial burglary. Under Proposition 47, Penal Code section 459.5 now makes it clear that prosecutors can’t charge “shoplifting” in an amount less than $950 as burglary. However, it’s not clear that this situation is what the proposition authors had in mind when it made that change. “Shoplifting” traditionally refers to taking goods ordinarily available for sale without paying for them. Taking someone’s wallet doesn’t fall within that general idea. Entering a restaurant– a commercial establishment– in order to steal a patron’s wallet might easily still be considered burglary, and could therefore be charged as a felony (commercial burglary is what is known as a “wobbler”).
  • Arguably, there are two instances of theft here: stealing the wallet, then stealing the cash out of the wallet. Ordinarily that wouldn’t be considered two separate acts, but in this story, the alleged thief returned the wallet with the cash missing– enough to potentially make taking the cash a separate act of theft. So even if there isn’t felony burglary charged, there are potentially two misdemeanors to stack back-to-back.
  • Whenever police feel disrespected or made to work harder than they should in arresting or detaining someone, there’s a risk of being charged with resisting arrest. Here, the story makes it sound like there may have been some forceful resistance to being handcuffed on the part of the alleged thief. That puts the alleged thief in danger of picking up a “resisting arrest” charge on top of it– and resisting arrest can be charged as a felony.

Now, from the perspective of the alleged thief, it might seem obvious that under Proposition 47, this situation is just a misdemeanor. But as you can see from above, that might not be the case at all. Depending on how things play out, and what prosecutors handle the case, it’s at least hypothetically possible the alleged thief picks up two felony charges out of this escapade.

For that reason, if you or your loved one gets arrested on a theft-related offense— even when the value of the item in question is clearly less than $950– it’s not safe to simply assume that the case will be “just” a misdemeanor. It’s important that you seek out the advice of a qualified attorney immediately, and hire the right lawyer to help you or your family. Don’t assume that you understand what Proposition 47 means for your case; those sorts of assumptions are always in danger of leading to real regret later down the road.

As always, if you have a question or concern, or would like to discuss a case involving yourself or your loved one, my office is happy to offer you a free consultation.

 Posted by at 10:57 am

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