Filed 4/28/17 P. v. Robertson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD E. ROBERTSON,
Defendant and Appellant.
D070924
(Super. Ct. No. SCD229112)
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Reversed and remanded with directions.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
2
In August, 2010, Richard Robertson pleaded guilty to one count of petty theft after
a prior conviction and using an access card (Pen. Code, 1 §§ 484g, subd. (a), 666), and
one count of commercial burglary (§ 459).
In 2016, Robertson filed a petition for re-sentencing under Proposition 47
(§ 1170.18, Safe Neighborhoods and Schools Act). The trial court reduced the access
card offense to a misdemeanor, but denied the petition with regard to the commercial
burglary. The court reasoned that theft by means of fraudulent use of an access card did
not qualify as shoplifting as now defined under section 459.5.
Robertson appeals contending the trial court erred in refusing to reclassify the
burglary as shoplifting. Robertson argues the term larceny as used in both sections 459
and 459.5 includes thefts by means other than larceny. He also argues that failure to
reclassify his conviction as a misdemeanor would deny him equal protection. We agree
the trial court should have granted relief on the burglary count and will remand with
directions to grant the petition. Considering our disposition, we will decline to address
Robertson's equal protection argument.
STATEMENT OF FACTS
This appeal arises from a guilty plea and subsequent motion. The parties agree on
the operative facts that relate to the petition.

1 All further statutory references are to the Penal Code unless otherwise specified.
3
Robertson entered a 7-Eleven store with a stolen credit card. While in the store
Robertson purchased two packs of cigarettes and a soda. At the hearing on the petition,
the court valued the property taken at "a little over $10."
DISCUSSION
This appeal raises the question of whether shoplifting under new section 459.5
includes thefts from commercial establishments, during regular business hours, other than
by common law larceny. After the briefing in this case was completed, our Supreme
Court issued its opinion in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). In that
case the court addressed the question of whether the language of section 459.52 defining
the crime of shoplifting requires that the takings or planned takings be accomplished by
means of larceny. The high court concluded the answer to the question is no. The court
interpreted the term larceny in light of section 490a3 and the judicial interpretation of that

2 Section 459.5 provides: "(a) Notwithstanding Section 459, 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). Any
other entry into a commercial establishment with intent to commit larceny is burglary.
Shoplifting shall be punished as a misdemeanor, except that a person with one or more
prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section
1170. [¶] (b) 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."
3 Section 490a provides: "Wherever 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."
4
term in burglary cases for many years and held that thefts other than by larceny can
qualify for the offense of shoplifting.
In Gonzales, supra, 2 Cal.5th 858, the defendant had entered a bank, during
regular business hours where he cashed forged, stolen checks in amounts less than $950.
Obtaining funds in that fashion was deemed theft by false pretenses, not larceny. The
court summarized its holding: "Here we hold the electorate similarly intended that the
shoplifting statute apply to an entry to commit a non-larcenous theft. Thus, defendant's
act of entering a bank to cash a stolen check for less than $950, traditionally regarded as
theft by false pretenses rather than larceny, now constitutes shoplifting under the statute."
(Id. at p. 862.)
We find the court's decision is controlling in this case.
Robertson entered a commercial establishment during ordinary business hours.
His purpose was to obtain property using a stolen credit card, traditionally a theft by false
pretenses. He obtained cigarettes and a soda with a value of approximately $10. He was
charged with and convicted of burglary on the theory he entered the business with the
intent to commit theft. Plainly, Robertson's acts are analogous to those of the defendant
in Gonzales, supra, 2 Cal.5th 858. Accordingly, the trial court erred in denying
Robertson's petition.4

4 Since Gonzales, supra, 2 Cal.5th 858 was filed after the completion of briefing we
offered the parties the opportunity to submit supplemental briefing on the impact of
Gonzales on the issues in this case. Counsel for both parties have responded and concur
that the holding in Gonzales is controlling in this case.
5
DISPOSITION
The order denying Robertson's petition under section 1170.18 is reversed. The
case is remanded to the superior court with directions to grant the petition and to
re-sentence as may be appropriate.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.