People v. E.P. (In re E.P.)

240 Cal. Rptr. 3d 888, 29 Cal. App. 5th 1196
Procedural entryThis page is a short order in People v. E.P. (In re E.P.). Read the opinion of the Court — 247 Cal. Rptr. 3d 587
California Court of Appeal, 5th District·Decided December 11, 2018·No. G054375·Published

Opinion

ARONSON, ACTING P. J.

*1200The juvenile court found minor E.P. committed second degree burglary ( Pen. Code, §§ 459, 460, subd. (b) [count 1]; all statutory references are to the Penal Code unless noted), possession of graffiti tools (§ 594.2, subd. (a) [count 2] ), receiving stolen property (§ 496, subd. (a) [counts 4-6] ), and illegal possession of an alcoholic beverage ( Bus. & Prof. Code, § 25662, subd. (a) [count 7] ). E.P. contends we must reverse the burglary finding (count 1) because the evidence was insufficient to show he committed burglary rather than the new crime defined by Proposition 47 as shoplifting. He further asserts we must reverse the findings he received stolen property (counts 4-6) because he cannot be charged or convicted of both shoplifting and receiving the same property. We conclude the evidence was insufficient to show that E.P. committed burglary and, therefore, reverse the true finding on the burglary count. Because E.P. was not charged with shoplifting, there was no bar to charging him with receiving stolen property (counts 4-6) and the court's true findings on those counts. Accordingly, we reverse the finding E.P. committed burglary, but affirm the findings he received stolen property and illegally possessed an alcoholic beverage.

I

FACTUAL AND PROCEDURAL BACKGROUND

Anaheim ICE is a public ice hockey facility with two professional-sized ice rinks and a shop. Between the ice rinks are offices, referee locker rooms, and locker rooms for the players, who must pay to use the rink.

On December 22, 2015, between 10:00 and 11:00 p.m., a hockey referee working a *891game spotted E.P. and a companion lingering around the locker rooms. The pair walked in and out of the locker rooms several times.

Three players reported items missing from the locker room. One player stated someone had stolen his keys, cell phone, and wallet from his jacket, which he had placed on a locker room bench. A second player reported his pants, wallet, keys, and phone were missing from the bag he left in the locker room. A third player stated someone had taken his wallet, containing credit cards, an amusement park annual pass, and his cell phone from the pants he left on a locker room shelf.

Anaheim police officers responded promptly and detained three youths, including E.P., outside a closed fast food restaurant about a block and a half from the rink. E.P. consented to a search, and officers discovered the property stolen from the locker room.

*1201Officer Olmedo arrested E.P., advised him of his Miranda rights and questioned him about the thefts. E.P. admitted possessing the spray paint can officers also found in his possession, explaining he was a tagger, but he initially denied involvement in the thefts. During a later conversation, E.P. admitted he went inside the facility to watch hockey with another "kid" he could not identify. This youth took "stuff" from the locker room and ran out the back of the facility. E.P. eventually admitted stealing a wallet, cell phones, a jersey, an alcohol bottle, and credit cards from the locker room.

At the close of evidence, E.P. moved to dismiss the burglary count under Welfare and Institutions Code, section 701.1, arguing that the prosecution failed to prove he had not committed shoplifting as defined in section 459.5.1 He argued the prosecution failed to present evidence (1) the value of the property taken or intended to be taken was more than $950; (2) the locker room was not part of a commercial establishment; or (3) that he entered the locker room during nonbusiness hours. E.P. also argued that the juvenile court must dismiss the receiving stolen property allegations (counts 4-6) because a person cannot be charged with shoplifting property and receiving the same stolen property under section 459.5. subdivision (b).

In August 2016, the juvenile court sustained the allegations of the petition. In rejecting E.P.'s motion to dismiss the burglary charge, the court concluded the ice rink's locker rooms were not part of the commercial establishment and the crime of shoplifting covered thefts from the business, not from private citizens. Consequently, the court found true the allegations in the petition against E.P., declared him a ward of the court, and placed him on probation.

Following E.P.'s timely appeal, we issued an opinion reversing the burglary and receiving stolen property findings. Subsequently, the Attorney General filed a Petition for Rehearing, which we granted.2

*892*1202II

DISCUSSION

A. The Prosecution's Burden of Proof on a Burglary Charge Following Proposition 47

In November 2014, the electorate enacted Proposition 47, "the Safe Neighborhoods and Schools Act," which amended existing statutes to reduce penalties for certain theft and drug offenses, and added several new provisions. Per its preamble, the stated purpose was " 'to ensure that prison spending is focused on violent and serious offenses' " and to " '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.' " ( People v. Romanowski (2017) 2 Cal.5th 903, 909, 215 Cal.Rptr.3d 758, 391 P.3d 633.) "Proposition 47 directs that the 'act shall be broadly construed to accomplish its purposes.' " ( People v. Jimenez (2018) 22 Cal.App.5th 1282, 1287, 232 Cal.Rptr.3d 386.)

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People v. E.P. (In re E.P.), 240 Cal. Rptr. 3d 888, 29 Cal. App. 5th 1196 (Cal. Ct. App. 2018).

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