However, the proceeds of insurance received by the conservators for the loss sustained to the furniture and fixtures as well as the damage to the residence as a result *652of the fire in decedent’s home are assets of the estate. The furniture, furnishings and residence destroyed by the fire of March 8, 1977 were not in existence at the time of decedent’s death and the legacy and devise with respect to them adeemed. The intent of the testator is no longer considered. The present common-law rule in New York is that the absence of an asset from the distributive estate in and of itself adeems that legacy (Matter of Brawn, 219 NY 263, 268; Matter of Clark, 90 Misc 2d 925, supra; Matter of Harris, 98 Misc 2d 742). The fact that the absence of the asset was not the voluntary act of the testatrix is of no significance. “[T]he precise thing given by the will is not available for disposition at the time of the testator’s death, and it matters not whether this came to pass because of an intentional and voluntary act on the part of the testator, such as abandonment, sale or gift, or because of an occurrence, involuntary and unintended, such as condemnation, fire or <mask>.” (Matter of Wright, 7 NY2d 365, 368-369.) The only present relief to this harsh rule of involuntary ademption may be found in EPTL 3-4.5 which permits the insurance proceeds received after testator’s death to be substituted in the place of the missing property. The section applies however only to insurance proceeds received after the death of the testatrix. In the present case, the conservators made claim and collected the proceeds of the insurance long before the death of the testatrix herein.


The North Carolina indictment (Forsyth Co., No. 3180, Jan. Term, 1942) on which the petitioner was convicted, also charged larceny and receiving stolen goods. The distinction in amount *99between simple and aggravated larceny is set at $20. Thus the case falls squarely within the rule in the Olah case (supra), and the indictment charging the <mask> of cigarettes of the value of $1.50 also brings the case under the rule set forth in People ex rel. Newman v. Foster (297 N. Y. 27).


Moreover, DOE mentioned on the checklist facts beyond the offense for which petitioner was actually convicted. While petitioner’s arrest stemmed from what DOE alleged to be her direct involvement in obtaining the “confidential information of consumers for her personal benefit,” petitioner ultimately entered a plea to guilty solely to the offense of petit larceny for what she termed to be her actions “[making] copies of the receipts for some of the orders being placed for in-store pickup” at Best Buy, and passing that information along so “she could make some extra cash.” Nowhere is it alleged that petitioner obtained, or attempted to obtain, any sensitive personal information such as a social security number from those receipts. Nevertheless, DOE’s suggestion that petitioner obtained customers’ “confidential information” presupposes that petitioner retrieved sensitive information from the receipts, and used it for a nefarious purpose. That is not the crime that she was convicted of, and nothing in the record before the court supports such a premise. Perhaps DOE is deeming “confidential information” as encompassing potential names and addresses that may have been listed on the receipts *394petitioner copied. If that were the case, there is nothing to suggest that such information was in fact “confidential” or within the ambit of information that one would deem to be outside the scope of public access. Additionally, if petitioner had committed the act of stealing “confidential information” that DOE ascribes to her, she likely would have been charged with other offenses, including potential identity <mask>. As such, DOE mischaracter-izes petitioner’s offense by irrationally imputing additional criminal activity to petitioner not reflected by her actual plea to the offense of petit larceny.


Defendant pleaded guilty to a reduced charge of attempted burglary in the third degree in full satisfaction of an amended indictment charging him with multiple counts arising out of the <mask> of certain snowmobiles. County Court agreed to impose a prison sentence of 2 to 4 years, direct restitution and recommend that defendant be enrolled in a shock incarceration program. Defendant was cautioned, however, that if he were to violate the conditions of his release by, among other things, testing positive for any illegal substances, the court would not be bound by its promise to recommend shock incarceration. When defendant later tested positive for cocaine use, County Court sentenced him, as a second felony offender, to a prison term of 2 to 4 years, without recommending the shock program, and directed him to pay restitution in the amount of $2,790. Defendant now appeals.*


Thus for instance in Love (supra) the foreign statute defined larceny disjunctively as (1) stealing from the person and (2) stealing $25 or more in any manner. The indictment alleged the stealing of the sum of $20.75 from the person. This conclusively established that the defendant was convicted under (1) stealing from the person. He could not have been convicted of stealing under (2) since the indictment would have to allege <mask> of $25 or more. And in Gold (supra) the foreign statute defined burglary disjunctively as (1) breaking and entering with intent to commit a crime and (2) “ breaking out ” of a building under circumstances not a felony in this State. The operative allegations of the indictment alleged breaking and entering with intent to commit a crime. This excluded any possibility that defendant was convicted of “ breaking out ” of a building. Also some States define burglary as breaking and entering, etc., in the daytime or entering, etc. without breaking in the nighttime. If the operative facts allege a breaking and entry, etc., in the daytime, such allegations exclude any possibility that the defendant entered without breaking in the nighttime. People *623v. Knapp (supra) is an illustration of both kinds of burglary-statutes.


Approximately three months later, Walsh was arrested for having engaged in corruption. Following entry of the court’s suppression order but three days prior to the defendant’s interposition of her initial guilty plea, the Official Corruption Unit of the New York District Attorney (OCU) received information that Walsh had stolen money. One week after such interposition, OCU learned that he was involved in the <mask> and sale of narcotics. Between December 16, 1993 and January 2, 1994, OCU received word that he was steeped in more venal activities. Consequently, Federal and State prosecutors charged him with numerous crimes and he pleaded guilty in both Federal and State courts for his transgressions. Significantly, no party here asserts that these misdeeds related to the instant matter or that Cesarano was implicated in the corruption.


Gonzales is also not controlling here. In Gonzales , the Supreme Court held entering a bank to cash a stolen check for less than $950 is "shoplifting" within the meaning of section 459.5, a new misdemeanor crime created by Proposition 47. ( Gonzales, supra, 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Section 459.5 provides shoplifting is "entering a commercial establishment with intent to commit larceny" during business hours when the property taken is worth $950 or less. Our high court rejected the Attorney General's argument the defendant did not commit shoplifting because entering a bank with intent to pass forged checks was "<mask> by false pretenses" rather than "larceny." ( Gonzales , at pp. 864-868, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Because California consolidated all theft offenses in section 490a, the court reasoned "larceny" in section 459.5 must be construed to mean "theft," just as it does in the general burglary statute. ( Gonzales , at pp. 865, 868-869, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Defendant emphasizes Gonzales focused on the value of the transaction rather than the form of theft as the demarcation between felonies and misdemeanors and suggests we apply the same analysis to section 473(b). (See Gonzales , at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Unlike section 459.5, however, section 473(b) does not define a new crime applicable to all forms of theft, but mandates misdemeanor treatment for forgery only when seven specific instruments are involved. Section 459.5's focus is on the value of the property stolen, but section 473(b) concerns both the type of instrument used in the forgery and its monetary value.


Last but not least, the People also rely on People v. Tardy (2003) 112 Cal.App.4th 783, 6 Cal.Rptr.3d 24. In Tardy , the information charged the defendant with robbery and alleged eight prior prison term enhancements ( Pen. Code, § 667.5, subd. (b) ). ( Tardy , supra , at p. 785, 6 Cal.Rptr.3d 24.) The jury, however, *270found him guilty of the lesser included offense of petty <mask>. ( Id . at pp. 785-786, 6 Cal.Rptr.3d 24.) The prosecution took the position that, because of the defendant's prior convictions, he was guilty of petty theft with a prior. ( Pen. Code, § 666.) The defendant then admitted the prior prison *622term enhancements, and the trial court sentenced him under Penal Code section 666. ( Tardy , supra , at p. 786, 6 Cal.Rptr.3d 24.)


Morever, the circuit court here did not "automatically" deny Drexler's motion to transfer. Instead, the court considered the fact that Drexler had not only been charged with two counts of capital murder, but also with two counts each of aggravated robbery, <mask> of property, and abuse of a corpse. In addition to the serious nature of the capital-murder charge, the court also noted that aggravated-robbery charges "have been designated as an eight (8) on the Seriousness Level contained within the Arkansas Sentencing Standards Grid and offense Seriousness Rankings." Thus, because the circuit court's finding was not based solely and "automatically" on the capital-murder charge, we find no error on this issue.


In addition, there is a question of fact regarding the policy terms. The insurance company sets forth in its affidavits at various times that the policy provides limits of insurance for physical damage coverage quoting “Section IV — physical damage coverage, subparagraph A. and C.” There is no dispute that the plaintiff’s policy was on a nonreporting premium basis. Commercial’s affidavits indicate that the application of the language contained in the policy at section IV, Physical Damage Coverage, C.2.c. leads to the conclusion that they owe only $1,725.75. However, at no time do the affidavits give specific references to the policy terms or coverage as to how this conclusion is reached. The only limit of insurance is stated under item seven of the “Garage Coverage Form — Auto Dealers’ Supplementary Schedule”. This limitation is stated as being for the limit for each location and for comprehensive coverage. There is no indication of the limit for collision coverage which is marked above as a coverage for used autos and autos owned. This entire check box is under item seven for physical damage coverage. In addition, the limit of insurance for each location states an amount of $26,250 “minus $250 deductible for each covered auto for loss caused by <mask> or mischief or vandalism subject to $1000 maximum deductible for all such loss in any one event.” This does not indicate limitations on losses for collision.


Under Proposition 47 (the "Safe Neighborhoods and Schools Act"), which went into effect before Jackson committed the crime here, " 'an offender who obtains a [vehicle] valued at [$950 or less] by <mask> must be charged with petty theft and may not be charged as a felon under any other criminal provision.' " ( Page, supra , 3 Cal.5th at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319 ; § 496, subd. (a).) The unlawful taking of a vehicle with the intent to permanently deprive the owner of possession is a theft offense, but the unlawful driving of a vehicle is not.6 ( Page , at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319 ; People v. Gutierrez (2018) 20 Cal.App.5th 847, 854, 229 Cal.Rptr.3d 531 ( Gutierrez ).) Thus, some violations of section 10851(a) are punishable only as misdemeanors, and some are punishable as either misdemeanors or felonies. ( Page , at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319.)


*736To the extent, if any, that respondents can be deemed to have established separate “classifications” of appearance enhancement establishments, such classification is presumptively valid, and petitioners have offered no evidence that respondents’ conduct was irrational or arbitrary. Respondents’ reasons for imposing the wage bond requirement specifically on businesses that provide nail specialty services was laid out in depth in the legislative history. The legislature explained that it has found abuses in the nail salon industry in particular and determined that the legislation was needed to protect nail salon workers in particular. The State of New York has a legitimate interest in protecting workers in the nail salon industry from unsafe working conditions and unfair labor practices, including wage <mask> and payment of below-minimum wages. As such, the legislation is related to a legitimate purpose and there has been no violation of equal protection.


Because the evidence concerning the fingerprints of other persons in the van was not in itself sufficient to establish that Makkali did not commit the <mask>, Makkali has not met his burden of showing that he was prejudiced in violation of Brady . Moreover, in determining whether the petitioner was prejudiced, the totality of the evidence to support the judgment must be considered. The strength of the evidence adduced at a petitioner's trial is an important consideration in a coram nobis proceeding because the court must weigh the significance of the information that was alleged to have been concealed from the defense against the totality of the evidence to determine if the hidden information or evidence at issue would have been such as to have prevented rendition of the judgment had the existence of that material been known at the time of trial.1 Goins v. State , 2018 Ark. 312, at 6, 558 S.W.3d 872, 876. The mere fact that the fingerprints of two other people were found in the van does not establish that there existed some fact that would have prevented rendition of the theft judgment if it had been known at the time of trial. As stated, coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid, and Makkali's claims are not sufficient to overcome that presumption.


Jones, in his treatise on Bailments, 54, says, “ It is almost needless to add, that a mandatary as well as a depositary, may bind himself by special agreement to be answerable even for casualties.” Judge Story, in his excellent treatise on Bailments, page 22, says, if a depositary should specially contract to keep safely, he might be liable for ordinary negligence, although the law would otherwise hold him liable only for gross negligence. Upon this ground, South-cote’s case, 4 Co. R. 83, b. 1. Inst. 89. a, b, may perhaps be maintained to be good law ; and is not liable to the objection made against it in Coggs v. Bernard. If, indeed, it proceeded upon the ground asserted by Lord Coke, that a bailment upon a contract to keep and to keep safely is the same thing, it is certainly not law, and was overruled in Coggs v. Bernard. But from the report it would seem, that the bailment was there to keep safe ; and if so, then upon the special contract the party might have been held responsible, although he could not otherwise be so held by the general law. This was the doctrine maintained by all the judges in the case of Coggs v. Bernard, which case proceeded mainly upon that ground; and in a later case, Kettle v. Brumsdale, Willes’ R. 118, 121, the same distinction was adopted by the court; and it was held, that if a depositary should accept to keep safely, he would be responsible for losses by robbery or <mask>, although not otherwise responsible upon the general principles of law. And again, in page 48, he refers to the saying of Lord Coke, “for if goods are delivered to one to be kept and to be safely kept, it is all one in law.” Hence he concludes that if goods are delivered to a man to be safely kept, and after-wards those goods are stolen, this shall not excuse him, be-*355c ause by the acceptance he undertook to keep them safely, and, therefore, he must keep them at his own peril. But if goods are delivered to him to keep as he would keep his own, then, if they are stolen from him without his default or negligence, he shall be discharged. Co. Litt. 89, b. And he recommends on this account to those who receive goods, that they should receive them in a special manner, viz. to be kept as their own, or at the peril of the owner. An agreement, such as is made in the case at bar, being a positive unqualified promise to deliver the horses by a certain day, includes the obligation to safely keep them, for if the receiptor does not, he cannot deliver, and makes him answerable even for casualties. In Booth v. Wilson, 1 Barn. & Ald. 59, it was held, that a gratuitous bailee might maintain case against his neighbor, who suffered his fence to be so much out of repair, that the bailor’s horse in a dark night fell from the bailee’s field into the other, and was killed: the full value of the horse was recovered. This recovery was based upon the consideration, that the gratuitous bailee was responsible to the bailor for a redelivery of the horse, is the fact of responsibility,f which decides the right to the action of replevin. See Harrison v. McIntosh, 1 Johns. R. 385. Mr. Justice Fineux, in the Year Books, 21 Hen. 7, 14, pl. 23, said, (and it was an action of replevin brought by a bailee, for aught that appears upon a general bailment,) “ In this case, the bailee has a property in the thing against a stranger, for he is chargeable to the bailor ; and for this reason he shall recover against a stranger who takes the goods out of his possession.” The power and control which the sheriff had over the chattels, he has im-1 parted to the receiptor, who is substituted in his place, as far as the possession and control of them are concerned, until the day of sale. They are, while in the receiptor’s possession, as much in the custody of the law, as they were when in the sheriff’s possession ; and I can see no reason why the receiptor should not have the protection of the law, and be authorized to maintain replevin, so that be may be enabled to discharge his responsibilities to the sheriff, as well as that the sheriff should have such protection and action, to en*356able him to discharge his responsibilities to the judgment creditor.


*640Respondent disagrees, and urges us to limit section 459.5 to the "common" understanding of shoplifting, which in respondent's view is the "unauthorized entry into a retail establishment, while the establishment is open during regular business hours, with the intent to steal openly-displayed merchandise valuing not more than $950." Alternatively, respondent urges us to follow People v. Gonzales (2015) 242 Cal.App.4th 35, 194 Cal.Rptr.3d 856 (Gonzales ), in which the Fourth District, Division One, recently held the "intent to commit larceny" element in section 459.5 cannot be satisfied by entering a commercial establishment with the intent to commit <mask> by false pretenses.


"Notwithstanding Section 487 or any other provision of law defining grand <mask>, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor ...." Section 490.2 sought to eliminate provisions that "carved out separate categories of grand theft based on the type of property stolen, with either a lower value threshold or no value threshold at all." ( Romanowski, supra, 2 Cal.5th at p. 908, 215 Cal.Rptr.3d 758, 391 P.3d 633.) Section 487 defined as grand theft the theft of "more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim's person; or any cars or guns." ( Romanowski, supra at p. 907, 215 Cal.Rptr.3d 758, 391 P.3d 633.) By inserting a $950 threshold, *821Proposition 47 ensured that "such crimes would no longer be charged as grand theft solely because of the property involved ." ( *521Id. at p. 908, 215 Cal.Rptr.3d 758, 391 P.3d 633.) Proposition 47 had its sights on both the grand theft offenses listed in section 487 and those offenses that were elsewhere defined as grand theft. That was apparent from section 490.2's clause, "[n]otwithstanding Section 487 or any other provision of law defining grand theft." ( Romanowski, supra, at p. 907, 215 Cal.Rptr.3d 758, 391 P.3d 633, citing § 490.2, subd. (a).)


Petitioner Betty Grip son is a recipient of public assistance for herself and her five children, ages 1% to 9, from the Albany County Department of Social Services in the Federal category of Aid to Dependent Children. She and the children reside in the City of Albany, Albany County, New York. She alleges that on April 15, 1973 approximately $180 in cash was stolen from her which amount was the balance of the proceeds from her public assistance check which she received on April 14,1973. She reported the <mask> to the respondent agency on Monday, April 16,1973 and applied for and was denied emergency assistance. She was without food, rent money and money to prevent a threatened turn-off of her electric and gas services. She claimed to be destitute and faced with starvation for herself and her children. The denial of emergency assistance was based upon New York State Department of Social Services’ agency policy resulting from Commissioner Lavine’s regulations as *1076found in 18 NYCRR 372.2 (b) and (c) and Bulletin 185. There was no investigation or hearing as to the alleged facts of .destitution.


We begin our analysis by comparing the first element of both statutes. Although <mask> by receiving stolen property does not expressly prohibit “unlawful taking or unlawful control over movable property,” . . . the statute's requirement that a person intentionally acquire possession, control or title, retain, dispose or lend on the security of moveable property of another knowing or believing that it is stolen necessitates either theft of the property or unlawful control over the movable property of another. Similarly, the second element of theft by unlawful taking, that the movable property belong to another, is necessary to establish the second element of theft by receiving stolen property because a person cannot have knowledge or belief that


the nature and scope of criminal investigations on the basis of evidence or affidavits submitted in an ex parte proceeding.” Morrison, 487 U.S. at 681 n.20 (internal citations omitted); see also Harmon Memo at 3 (mech- anism for review by Article III judges of ex parte government applica- tions for electronic surveillance warrants satisfies “case or controversy” requirement). Federal courts also may adjudicate ex parte petitions for naturalization under the Immigration and Nationality Act, even though in most such cases the United States does not appear as an adverse party and, as a result, there are no conflicting positions for the court to resolve. See Tutun v. United States, 270 U.S. 568, 577 (1926); Harmon Memo at 6. As we have observed, all of the above proceedings satisfy the Article III requirement of adverseness because, “while they may formally take place ex parte, they also implicate a potentially adverse party competent to challenge the result of the proceedings either in that forum or at a later date.” Memorandum for Sheryl L. Walter, Office of Legislative Affairs, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Draft Bill Entitled the “Identity <mask> Victim Assistance Act of 2001” at 3 (Feb. 6, 2001). For example, as the Court noted in Tutun with respect to naturalization proceedings, “[t]he United States is always a possible ad- verse party” to a claim for citizenship. 270 U.S. at 577. Whether a financial company subject to a petition that chooses not to appear before the Panel might be said to be “a possible adverse party” in this sense is not clear. The Print deprives the Third Circuit of jurisdiction over company appeals if the company “acquiesce[d] or consent[ed] to the appointment of a receiver by the Secretary.” Print § 202(b)(2)(A)(ii). And it appears that such a company would be statutorily foreclosed from attacking a receivership order in any collateral proceeding. See Print § 202(a)(3) (granting Panel “original and exclusive jurisdiction of pro- ceedings to consider petitions by the Secretary”). 7 One could argue that


On October 15, 2010, T.S.N. was charged by information for the misdemeanor offense of <mask> by check, and a warrant for her arrest issued on November 16, 2010. She was not arrested until June 11, 2013. On that date, she was arrested for the felony offense of aggravated assault with a deadly weapon. During the arrest process, the officer also executed the 2010 warrant and arrested T.S.N. on the theft by check charge as well as the assault charge. The theft and assault charges were filed in different courts with different cause numbers. T.S.N. pleaded guilty to the theft charge but not guilty to the assault charge. The assault charge was tried to a jury and she was acquitted.


*133Proposition 47 created a new misdemeanor crime called shoplifting by adding section 459.5. The statute defines shoplifting as follows: "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)." (§ 459.5, subd. (a).) If the taking of the property meets the definition of shoplifting, it must be charged as such: "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 <mask> of the same property." (§ 459.5, subd. (b).) Under the shoplifting statute, felony burglary *266still is available for an entry to commit a theft outside of business hours, or of a large value of property, as "[a]ny other entry into a commercial establishment with intent to commit larceny is burglary." ( § 459, subd. (a).)


Tested by the law applicable hereto, I hold that the defendants acquired the bonds in bad faith. Though they had no actual knowledge of the <mask>, the appearance of this immature, diseased and degenerate boy, claiming to be the owner of the bonds and in business for himself, was sufficient to deny his right to the bonds to the mind of any person with ordinary discrimination, or at least to thrust the duty upon the defendants to make further inquiries. They had no right to deliberately shut their eyes to obvious facts.


*596We do not find these cases persuasive. For example, in State v. Alexander (1987) 12 Kan.App.2d 1 ( Alexander ), the appellate court reasoned that "[u]pon the retail sale of merchandise, Kansas law obligates a merchant to collect and forward a sales tax to the state. [Citation.] In no sense may a <mask> be characterized as a sale. [Citation.] Because the sweaters had not been sold, [the store from which the defendant stole the items] did not owe, and the state was not entitled to collect, a sales tax on them.... [¶] ... Because no sales tax had been imposed, none was stolen." ( Id. at pp. 4-5.)


“ We also conclude that the word ‘ rags ’ as used in the statutory definition of a junk dealer (Admin. Code, ch. 32, art. 18, § 32-113.0) includes the commodity dealt in by the defendants.” The reason for the statute is clearly set forth in the American Wool Stock Corporation case, the Court of Appeals saying (pp. 79-80): “ Experience has taught that the various types of property dealt in by a junk dealer are peculiarly susceptible to <mask> and that the business of junk dealers, which provides a market for stolen property, is of a character which warrants *894regulation in the exercise of police power. Regulatory statutes enacted to that end have successfully withstood attacks as to their constitutionality.”


As to the second trial, the record of which was before the court (4 A D 2d 1016), plaintiffs sued on a jeweler’s liability policy which insured them against loss of jewelry. The policy excluded from coverage a loss occurring while the property was in an automobile, unless at the time of loss there was actually in, or upon the vehicle, the insured, his permanent employee, or a person whose sole duty was to attend the vehicle. The sole issue of fact was whether the vehicle was attended at the time of the loss. The evidence was overwhelming that the vehicle was unattended. The car was parked in the driveway of a garage *697with its hack end protruding on a public sidewalk. Two disinterested witnesses testified for defendant that they observed the car unattended at the garage entrance when an unidentified man took a bag from the vehicle and walked away. Plaintiff’s case was predicated on Ms claim that the automobile was attended by a garage attendant at the time of the <mask>. However, plaintiff was unable to testify that the automobile was attended at all times by a garage attendant, and the garage attendant testified that the car was left unattended for a period of time.


Hook testified that he was arrested by Trooper Bartkowiak. On the other hand, Trooper Bartkowiak testified that he did not arrest Hook, but that Hook had consented to accompany him and go along in the State car to talk to the B. C. I. Corporal Cerino testified that he asked Hook if he would go along with Trooper Bartkowiak to Justice Link’s office and Hook consented. William D. Ribyat, Jr., the attorney Hook called from Judge Link’s, tended to corroborate Hook with respect to the arrest. However, the source of Ribyat’s knowledge was the telephone call. Furthermore, he testified from a rather questionable recollection bolstered by some scratchy notes he had made. As we indicated upon the trial, after three days of observing Peter Hook, we place little credence in what he says. On the other hand, the three troopers were witnesses worthy of belief. They were experienced policemen aware of the fact they did not have a warrant for the arrest of Peter Hook or sufficient grounds to arrest him without one. At the time of the alleged arrest, they were merely investigating an alleged <mask>. So that upon this basis we make the finding that Peter Hook was not arrested by any State agent on April 13, 1955, but had accompanied the State agents voluntarily. On the other hand, even if we were to believe Peter Hook and hold that he was in fact arrested by the State Police at the time in question, it is our opinion that he sustained nothing more than nominal damages. As indicated supra, there was not sufficient evidence produced upon the trial to prove Peter Hook was guilty of larceny. However, the record indicates that the claimant and his wife had considerable marital difficulties. These difficulties at times erupted into open warfare between the parties. This marital strife was characterized by charges and counter-charges, as well *677as by assaults perpetrated by the parties upon each other, usually followed by recourse to the police and the courts. The occurrences of April 13, 1955, are due in part to the internal strife between Hook and his wife. The telephone call made by Mrs. Hook to Mr. Wheeler upon the date in question and the subsequent investigations of Peter Hook’s activities by the State agents was due to the vendetta being waged between Mrs. Hook and her husband rather than any lofty desire on her part to see justice done or a criminal apprehended. Mrs. Hook’s sole object was to make the State’s agents her instruments in harassment of her husband. On the other hand, the story unfolded upon the trial reflects little to Peter Hook’s credit and the entire procedure was punctuated with overtones of the marital problems in the Hook menage.


To permit one to relieve himself from any part of the responsibility attached to the imputing to another the crime of <mask>, on the ground that he, on so slight a basis as this, believed the charge to be true, would be in effect to allow one who became dissatisfied with the conduct or business transaction of another towards or with him, to apply to such other person such epithets as he saw fit, and then, when called to account, to shield himself from a portion of the responsibility by the bare averment that the conduct or transaction in question induced in his mind a belief that the epithets were correctly applied.


*233Another reason is that "unlike other forms of stolen property, stolen vehicles are often dismantled and sold for parts in 'chop shops' which can raise their worth above retail value. [Citation.]" (Peacock, supra, 242 Cal.App.4th at p. 713, 195 Cal.Rptr.3d 344.) Targeting that type of criminal enterprise was in part the Legislature's intent in enacting section 496d, as indicated in the legislative history. The bill's author proposed that section 496d be added "to the Penal Code to encompass only motor vehicles related to the receiving of stolen property." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.) Section 496d was described as " 'provid [ing] additional tools to law enforcement for utilization in combating vehicle <mask> and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences.' " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.)


On July 15, 2011, Gonzalez was charged with two felonies, robbery (§ 211) and burglary (§ 459). Gonzalez and prosecutors subsequently negotiated a plea agreement. On August 16, 2011, in accord with the plea *1063agreement, prosecutors amended the complaint against Gonzalez to add a felony charge of grand <mask> from a person (§ 487, subd. (c) ) and a misdemeanor charge of battery (§ 242), and also moved to dismiss the robbery and burglary counts. Gonzalez pled guilty to the new felony grand theft from a person and misdemeanor battery counts. Consistent with the plea agreement, the trial court sentenced Gonzalez to 36 months of formal probation on the condition she serve 314 days in a work release program, after accounting for presentence custody and behavior credits.


Resisting this conclusion, the Attorney General in Gonzales argued that "use of the term 'larceny' in section 459.5, coupled with labeling the offense 'shoplifting,' exhibited an intent by the electorate to limit that offense to the 'common understanding of shoplifting,' which she characterizes as taking goods from a store." ( Gonzales, supra, 2 Cal.5th at pp. 868-869, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The court rejected the Attorney General's argument because "the language of section 459.5 refers to the general burglary statute and imports the term 'larceny' [which] strongly suggests an intent that the term maintain its same meaning in both provisions, including application of section 490a." ( Id . at p. 869, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The court also rejected the Attorney General's argument that the electorate intended to limit shoplifting to the <mask> of "tangible merchandise" because the shoplifting statute uses the term "property," rather than the more expansive phrase "money, labor, real or personal property" found in section 490.2.5 ( Id. at pp. 870-871, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The court explained " section 459.5 provides a specific definition of the term 'shoplifting.' In doing so, it creates a term of art, which must be understood as it is defined, not in its colloquial sense. Indeed, by defining shoplifting as an entry into a business with an intent to steal, rather than as the taking itself, section 459.5 already deviates *1208from the colloquial understanding of that term." ( Id. at pp. 870-871, 216 Cal.Rptr.3d 285, 392 P.3d 437, second italics added.) The court also found no intent to use a narrower definition of the term "property" in the shoplifting statute than the definition of the same term in section 7, which defines property to include "both real and personal property." ( Ibid . )


Gutierrez insists he was convicted on an invalid theory of vehicle <mask>, pointing to the evidence that Gonzalez had filed a stolen car report with the California Highway Patrol. However, the deputy district attorney argued, to establish Gutierrez's guilt, it was only necessary for the People to prove Gutierrez intended to deprive the owner of the rental car of possession "for the period of time that he was driving that car." On this record we simply cannot say whether Gutierrez was convicted under a legally valid nontheft theory or a legally invalid theory of vehicle theft that did not include as an element the value of the stolen car. Accordingly, as did the Supreme Court in a similar situation in People v. Chiu , supra , 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972, we reverse the felony conviction for unlawful driving or taking a vehicle and remand the matter to allow the People either to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony with appropriate instructions. (See id . at p. 168, 172 Cal.Rptr.3d 438, 325 P.3d 972 [allowing People to either accept reduction of conviction to second degree murder or retry charge of first degree murder when jury may have based first degree murder conviction on an improper legal theory]; see generally People v. Navarro (2007) 40 Cal.4th 668, 678, 54 Cal.Rptr.3d 766, 151 P.3d 1177 [pursuant to Penal Code section 1260, "an appellate court may modify a verdict to reflect a conviction of a lesser included offense, where insufficient evidence supports the conviction on the greater offense"].)


Defendant contends that it is not liable to plaintiff under the named perils insurance policy since plaintiff failed to prove that the lost property was caused by <mask>. Defendant asserts that the mere showing by the assured that a suitcase was lost or disappeared while in the custody of an air carrier, without more, is insufficient proof to hold the insurer liable under the terms of the policy. Defendant cites Suberi v Travelers Indent. Co. (NYLJ, June 14, 1985, at 7, col 2 [App Term, 1st Dept]), in support of its contention.


At common law dioses in action, including bonds, bills and notes were held not to be “ personal goods ” and therefore not the subject of larceny (2 Wharton’s, Crim. Law [12th ed.], § 1113; People v. Griffin, 38 How. Pr. 475). However, New York, by statute, has made the <mask> of “personal property” larcenous (Bork v. People, 91 N. Y. 5). In Boric it was held that a negotiable instrument can be the subject of a larceny.


"14. Responsibility for Damages. I am responsible and will pay you for all loss and damage to the vehicle regardless of who is at fault. Only if I do not violate any of the terms of this Agreement, my liability for all loss or damage (except <mask> of the vehicle if left unattended without all windows and doors closed and locked, and the ignition key removed, or loss or theft of tires, tools accessories, equipment, keys or vehicle documents) will be limited to:


Second, under California law burglary is an entry with the intent to commit any felony, not just theft-related offenses. A burglary is complete "upon entry with the requisite intent to commit a felony or a <mask> ..., regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed." ( People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042, 31 Cal.Rptr.2d 128, 874 P.2d 903.) Thus, the only element common to all burglaries is entry. Under Kelly and H.W. 's interpretation of section 466, burglary tools include any item that a defendant intends to use to commit any felony inside the entered property. In our view, it is absurd to consider items to be burglary tools when they are intended for use solely to facilitate non-theft related crimes. A piece of rope, for example, is not a burglary tool just because a defendant broke into a house intending to strangle an occupant. And a book of matches is not a burglary tool just because a defendant went into a store intending to burn it down. Limiting the definition of burglary tools to items that are intended to gain access to property avoids such unreasonable applications.


Plaintiff now moves for summary judgment pursuant to CPLR 3212, on the ground that no issues of fact exist, and that under the terms and conditions of the policy, there having been a <mask>, defendant is obligated to pay it the agreed value of the vessel. Defendant cross-moves for summary judgment dismissing the complaint on the ground that under the established construction for ocean marine policies there is no coverage for the theft of the vessel, or for its mysterious disappearance.


*917(§ 484, subd. (a) ["In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test."]; see Romanowski, supra, 2 Cal.5th at p. 914, 215 Cal.Rptr.3d 758, 391 P.3d 633.) "Acceptance of this approach was part of the backdrop against which Proposition 47 was enacted, and Proposition 47 does not refer to any other approach to valuation. We thus see no basis for an alternative approach to valuation either in the original statutory scheme or in the provisions enacted by Proposition 47. Courts must use section 484's 'reasonable and fair market value' test when applying section 490.2's value threshold for <mask> crimes." ( Romanowski, supra, at p. 914, 215 Cal.Rptr.3d 758, 391 P.3d 633.)


Marshall and Appellant were friends and Marshall frequented the tow lot whenever Appellant was on duty. Access to and from the lot was controlled by remote operation from the office where Appellant was in charge. Marshall and Appellant were in telephone contact on the night of the incident. Marshall was observed in the act of stealing items from cars on the lot. The tow truck in which Marshall and Davis were apprehended was stopped at the exit gate, which could only be opened from the office where Appellant was stationed, alone. The truck was running with its lights on, and had speaker boxes, stereos, car batteries and other items inside the truck and on its flatbed. Marshall and Davis implicated Appellant in the <mask> scheme. Appellant's car was found in the location referred to by Marshall and Davis during their interrogations.


Sassi v. Jersey Trucking Serv. (283 App. Div. 73), upon which they rely, does not sustain their contention. There the defendant was a trucking service. After it had received a quantity of merchandise for delivery to specific consignees and before delivery, trucks and merchandise were stolen from its garage. Defendant thereupon notified its insurer of the loss. During the next three years the insurer investigated claims and endeavored to settle them. The negotiations bore no fruit and, more than three years after the <mask>, suit was brought against the trucking service which immediately impleaded its insurer. The insurer, relying on a clause in the policy identical in substance to that contained in the policy in the case at bar, sought summary judgment. In denying the application the court pointed out the short Statute of Limitations contained in the policy ‘ ‘ runs only from the time when under the other policy provisions the insurance company may lawfully be called upon to pay the loss ” (p. 77). This did not happen with the theft. The loss contemplated by the policy came into being only if and when the liability of the trucking company to the owners of the goods was determined. Hence, the one-year period was held to commence with the determination of the liability of the trucking company.


"3. Operation: Lessee represents Vehicle will be principally operated and garaged in the State of Connecticut and will be used by Lessee for its business * * * purposes * * * "5. Maintenance and Repairs: Lessee shall be responsible for all maintenance and repairs to Vehicle and shall maintain the Vehicle in the same condition as leased, subject only to reasonable wear and tear * * * "6. Insurance: Lessee shall be responsible for providing insurance coverages set forth below protecting the interests of Lessor and Lessee against bodily injury, property damage, comprehensive fire and <mask> and collision (with maximum deductible limits) as follows: "C. Collision Damage to Vehicle (deductible) $250.00 Ded. "Lessee shall deliver such policy to Lessor * * * The insurance policy required above shall be provided by an insurance company licensed under the laws of the State of principal operation and garaging of Vehicle; and shall name Lessor and Lessee as insured parties and Lessor as loss payee. Failure of Lessee to comply with any provision of a policy * * * shall be deemed a default under this lease causing termination. Lessee shall: pay the specified deductible limit as additional rent; notify Lessor immediately upon discovery of any damage or loss to the Vehicle * * * and provide written notice thereof within 24 hours. If Lessee fails to comply with any insurance policy or to notify Lessor and the insurance company of any *669insured claim, damage or loss to or of Vehicle, Lessee shall nevertheless pay for same as additional rent. As to all insurance, Lessee appoints Lessor as Lessee's attorney-in-fact” (emphasis added). Thus, it appears that under the foregoing terms of the motor vehicle lease, A-Leet charged Ewing, its lessee, with various obligations consistent with an appearance of ownership of the leased vehicle reserving to itself various contractual safeguards to protect A-Leet’s interest should Ewing breach its obligations to A-Leet.


Plaintiff seeks summary judgment in the sum of $5,616.48, plus 15% counsel fees, based upon the following rationale: If all payments were made as per the lease, defendant would have paid a total of $28,380 over the life of the lease, plus $2,130 on the option to purchase, making a grand total of $30,510. In so calculating, plaintiff is apparently assuming that since defendants cannot return the stolen car, they are presumed to have exercised the option to purchase. It appears that plaintiff realized $18,250 from the proceeds of <mask> insurance on the car. This sum, when added to the total of the down payment plus the 12 monthly rental payments, made up to the time of the theft, equals $24,877, which, when subtracted from the sum of $30,510 leaves a balance of $5,638, which plaintiff seeks by this motion.


*387As to Kaufman's claim that the People named the wrong victim because Emmet continued to own the note, we observe that Hall affirmed a larceny conviction where the named victim continued to have a legal right to payment. As is true in this case, Hall might have been charged with <mask> from the state treasury just as Pearlstein might have been charged with theft from the developer. Instead, both were properly convicted of theft from the intended recipient of the funds. Similarly, England upheld a larceny charge where the named victim presumably retained the right to payment for services he had rendered. The rule to be distilled from these otherwise diverse cases is that a thief who intercepts a payment intended by the payor for a payee cannot be heard to complain because the prosecutor named the wrong victim. ( Hall , supra , 257 S.W. at p. 64 ; England , supra , 174 F.2d at p. 468 ; Pearlstein , supra , 547 A.2d at p. 652.)


the appellee’s brief. That is the where Sea Wasp should have put its challenge to the district court’s liability rulings. Even if we were inclined to look past the procedural misstep and treat Sea Wasp’s cross-appeal on liability as an alternative ground for affirming its win, there is no need to consider an alternative ground when we have affirmed for the reasons the district court relied on. Because we have affirmed the take-nothing judgment on the ground that Domain Protection is not entitled to damages or fees, we do not consider the liability issues. B. A cross-appeal is necessary, however, for the other issue Sea Wasp raises. Sea Wasp argues it is entitled to attorney’s fees for successfully defending the Texas <mask> Liability Act claim. Because the district court did not award those fees, on this issue Sea Wasp is seeking something the judgment did not include. Am. Ry. Express Co., 265 U.S. at 435. The Texas theft statute provides that “[e]ach person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees.” Tex. Civ. Prac. & Rem. Code § 134.005(b). Unlike the Stored Communications Act fee provision we addressed earlier, this one contains a “shall” making fees “mandatory” when a party prevails. Merritt Hawkins & Assocs., L.L.C. v. Gresham, 861 F.3d 143, 155 (5th Cir. 2017). And a defendant generally prevails when it obtains dismissal of a Texas Theft Liability Act claim. See id. at 156. Sea Wasp thus contends it is entitled to fees because the judgment dismissed the theft claim after the jury refused to award damages. The district court thought otherwise, concluding that the preliminary injunction


- 24 - As relevant to the instant case, first degree felony murder is the “killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery . . . [or] theft[.]” Tenn. Code Ann. § 39-13-202(a)(2). Robbery is “the intentional or knowing <mask> of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). “A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a). Especially aggravated robbery is robbery accomplished with a deadly weapon and where the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-403(a). Conspiracy is committed when two or more people, “each having the culpable mental state required for the offense that is the object of the conspiracy, and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage in conduct that constitutes the offense.” Tenn. Code Ann. § 39-12-103(a).


If only out of an excess of caution, we note that, even if we were to apply the federal constitutional harmless error standard, we would find that the asserted error was harmless. Under that standard, an error must be deemed prejudicial unless it is shown "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) Thus, an instructional error is harmless when "the evidence ... is 'of such compelling force as to show beyond a reasonable doubt' that the erroneous instruction 'must have made no difference in reaching the verdict obtained.' [Citation.]" (People v. Harris (1994) 9 Cal.4th 407, 431, 37 Cal.Rptr.2d 200, 886 P.2d 1193, fn. omitted.) Here, for the reasons already discussed, the evidence was overwhelming that defendant did not act in a heat of passion induced by some combination of the altercation at the mobile home and the <mask> of his truck.


Teresa pleaded guilty to the underlying offenses of three counts of conspiracy to deliver a controlled substance (Roxicodone ) on November 6, 2009. She received a suspended sentence on each count. The conditions of her suspended sentences included not committing any offenses punishable by imprisonment. On May 16, 2017, the State filed a petition to revoke, alleging Teresa had committed the new offenses of residential burglary and <mask> of property. At the conclusion of the November 7, 2017 revocation hearing, Teresa moved for a directed verdict, arguing that the State had not proved its residential-burglary basis for revocation. The trial court denied the motion and found Teresa had violated the terms and conditions of her suspended sentences. The trial court did not prepare an order setting forth its findings and conclusions; however, no objection was raised to the lack of a written order. The pertinent docket entry for November 7, 2017, provided:


Pace and Crouch were found together just a few hours after the Glasscock Jewelry robbery, after a report from a Helzberg Jewelry store of suspicious activity very similar to the <mask> at the Warrensburg store. When Pace and Crouch were approached by a marked police car and uniformed officer, they started moving away in different directions, and Crouch broke into a run. Pace initially lied and said he did not know Crouch, before begrudgingly admitting that he "kind of halfway" knew him. Pace initially denied that the ring box was his, only to later change his story and claim that the ring box was in fact his, and demand its return. Perhaps most significantly, the two-carat diamond stolen from Glasscock Jewelry was found in the ring box which Pace stated that he owned.


The State of New York is lessee of the housing project from the Federal Public Housing Authority. In turn the State of New York is lessor to the Town of Hempstead. The Town of Hempstead, under a permissive clause in its contract, engaged one Moriarity as agent to manage, operate and maintain the property on its behalf. Moriarity, as agent, leased an apartment to the parents of the infant. Also, Moriarity, as agent, contracted with Nassau & Suffolk Coinmeter, Inc., to install, maintain, and operate seventeen Bendix fully automatic coinmetered washing machines at various locations at the housing project and, at its own expense, to provide insurance coverage against personal injuries resulting from any equipment installed, and also to provide a contingent liability policy in favor of the State, the Town of Hempstead and the agent. The machines were to remain the property of Coinmeter and to be under its exclusive control and supervision. That contract contained the following clause: “ 8. Liability and Indemnification (a) The Company agrees to hold the State of New York the Town of Hempstead and the Agent harmless against all claims, liabilities or losses arising from injuries or alleged injuries to person or property in connection with the installation, operation, maintenance, servicing and supervision of the Machines or any other equipment installed or operated pursuant to this contract, (b) The Company agrees that the Agent is under no duty to safeguard or protect the Machines or equipment installed pursuant to this contract, and that the Agent will not be liable for any loss of or damage to such Machines or equipment or any part thereof because of fire, <mask>, loss, vandalism or other cause.”


it entered against Sea Wasp meant this claim was a wash with neither party prevailing.7 When both sides achieve some litigation victories on a claim, there may not be a prevailing party. See, e.g., PlainsCapital Bank v. Jani, 2015 WL 7303934, at *3 (Tex. App.—Fort Worth Nov. 19, 2015, pet. denied) (neither party prevailed); Mendleski v. Silvertooth, 798 S.W.2d 30, 32 (Tex. App.— Corpus Christi 1990, no writ) (same); Schlobohm v. Pepperidge Farm, 806 F.2d 578, 584 (5th Cir. 1986) (same); Tunison v. Cont’l Airlines Corp., 162 F.3d 1187, 1191 (D.C. Cir. 1998) (same, citing cases); see also Travel Music of San Antonio, Inc. v. Douglas, 2002 WL 1058527, at *3 (Tex. App.—San Antonio May 29, 2002, pet. denied) (neither side prevailed under Texas <mask> Liability Act when plaintiff dismissed before trial). Finding no prevailing party was sound here. Not only did Domain Protection obtain an early win with the preliminary injunction, but by unlocking the domain names that injunction may have contributed to Domain Protection’s later failure to prove damages. It would be odd—and seemingly undermine the goal of mitigating damages—if a plaintiff’s obtaining preliminary relief in a case later means it has to pay defense fees if it no longer has damages to recover. The district court thus was entitled to conclude that neither side prevailed. The intermediate Texas case Sea Wasp relies on does not counsel otherwise. See Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 640– 41 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).8 Glattly does not


To accept the Division of Parole’s position on this would allow for obvious abuses and an enormous waste of resources. Theoretically, if a person had been arrested on criminal charges alleging the <mask> of a loaded handgun and was violated on a criminal possession of a weapon third degree charge, a violation hearing could be held on that charge. If he prevailed at that hearing, the Division of Parole could then refile on a grand larceny charge involving the theft of the same handgun. If the petitioner prevailed on that charge, the Division of Parole could then refile on criminal possession of stolen property charges. That certainly is not the intent behind the authority given Parole from the New York State Legislature to monitor and supervise parolees released to their care and supervision.


It should be noted that this was defendant’s ultimately evolved position on the trial, one drastically different from that contained in its pleadings and on many earlier motions herein. First of all, defendant originally sought to hold on tc the entire last two years of plaintiff’s commissions over an( above his drawings, simply because of his alleged disloyalty i?. the last six months of that period. It was only on the trial that defendant finally sought to amend its theory to a claim for all earnings, drawings and commissions, but limited to those accrued during the last six months. Secondly, defendant had originally sought injunctive relief, loss of profits, and various counterclaims, all based on unfair competition, alleged <mask> of customers and trade secrets, and conspiracy with Lipten, together with inducing him to damage defendant’s business; on the trial defendant expressly and haec verba dropped each and every one of these, and limited its complaint to plaintiff’s *996six months of secret plans, while still representing defendant. Belated as this rethinking was, nevertheless, in the interest of justice, to avoid more years of delay, and in the absence of a showing of harm or surprise to plaintiff, I have permitted a wholesale conforming of all pleadings to the proof, albeit with considerable reluctance.


Having determined that, the issue remains whether defendant’s actions constituted force within the meaning of the robbery statute. New York courts have generally followed the majority rule in most jurisdictions which have dealt with these types of cases, that "a snatching unaccompanied by any resistance is not sufficient to constitute a robbery” (People v Santiago, 62 AD2d 572, 575 [2d Dept], affd 48 NY2d 1023), and have declined to follow the minority view, led by the Kentucky courts, that "a snatching of property from the victim is sufficient to constitute a robbery regardless of the victim’s resistance or lack thereof’ (People v Santiago, supra, at 578, citing Jones v Commonwealth, 112 Ky 689, 66 SW 633). Nevertheless, various State courts have determined that the force applied in the taking of a purse while looped over the victim’s arm, shoulder or hand was sufficient to constitute a robbery (see, e.g., Commonwealth v Brown, 2 Mass App 883, 318 NE2d 486; Commonwealth v Jones, 362 Mass 83, 283 NE2d 840; State v Scoby, 719 SW2d 916 [Mo App]; but see, State v Sein, 124 NJ 209, 590 A2d 665; People v Gary, 80 Ill App 3d 817, 400 NE2d 473). Similarly, and more precisely, State courts have determined that where a purse was snatched with a great degree of force or where the strap or handle broke, the taking was accomplished with sufficient physical force to constitute a robbery (see, People v Roberts, 57 *510Cal App 3d 782, 129 Cal Rptr 529, overruled on other grounds in People v Rollo, 20 Cal 3d 109, 569 P2d 771; Raiford v State, 52 Md App 163, 447 A2d 496, affd in part and revd in part on other grounds 296 Md 289, 462 A2d 1192 [handbag "ripped” from the complainant]; Annotation, Purse Snatching as Robbery or <mask>, 42 ALR3d 1381-1391).


While to the uninitiated "assailing thieves” may be considered the equivalent of pirates, such thieves are in fact quite different and their domestic depredations are covered while those of international pirates are not. A forcible taking on the high seas is piracy. A forcible taking in port or in local waters is a taking by assailing thieves. It is certainly a <mask> under the law of New York.


One of the risks insured against is loss by “ fires.” This word follows the word “ seas.” Another risk is that of loss by “ pirates, rovers or assailing thieves.” If the goods in question had been lost while in the course of transportation through a fire on land or stolen on land, I would decide the case against the insurance company, for I would apply the well-known rule that as the language employed in the policy being that of the insurance company, all ambiguities ought to be resolved in favor of the assured. Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143. For the printed part quoted plainly says that the insurance company will bear and take upon itself “ all other like perils, losses and misfortunes.” A loss by fire or <mask> on land is like a similar loss on the seas. If, however, the tissue paper had been destroyed, while in transit on land, by some liquid having been accidentally thrown on it by some stranger to the contract, would the insurance company be liable? I think not. There is no ambiguity about that. Such a loss or peril would have been as unlike a peril insured against as a house is unlike a ship. To say that the company undertook to indemnify the plaintiff against all losses on land would be making a new contract for the parties, which even a court of equity would have no right to make. Albany City Savings Inst. v. Burdick, 87 N. Y. 40, 46.


On this appeal, defendant renews his contention that there is no such crime as attempted jostling. We agree. Jostling itself is an inchoate <mask> offense, aimed at the pickpocket who surreptitiously attempts to secure the personal property of his victim. It is in the nature of an *77attempt (see People v Thomas, 36 NY2d 514, 517; People v Rivera, 105 Misc 2d 285; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 165.25, pp 236-237). As such, there can be no such crime as attempted jostling. “[TJhere cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” (People v Schmidt, 76 Misc 2d 976, 978; see 22 CJS, Criminal Law, § 74). Since a defendant cannot be convicted after trial of a nonexistent crime (see, e.g., People v Foster, 19 NY2d 150; People v Brown, 21 AD2d 738; People v Hassin, 48 AD2d 705), the charge must be dismissed.


The new shoplifting statute directs that "[n]o person who is charged with shoplifting may also be charged with burglary or <mask> of the same property." (§ 459.5, subd. (b).) As the Supreme Court held, "the phrase 'the same property' confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge." ( Gonzales , supra , 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Robbery is a "theft offense[ ]," as the Supreme Court used that term in Gonzales. (See People v. Turner (1990) 50 Cal.3d 668, 692, 268 Cal.Rptr. 706, 789 P.2d 887 [" 'robbery was the only available theft offense' "];


Thus, Morales seeks to persuade this court that the plain meaning of Penal Code section 490.2 entails results so dire as to compel us to "rewrite the statute[ ] under the absurd consequences doctrine." ( Bell , supra , 241 Cal.App.4th at p. 352, 194 Cal.Rptr.3d 93.) We are not so persuaded. In *358the first place, to call vehicle <mask> "a more culpable act" than post-theft driving is to beg the question. As the People note, there are reasons to think that the opposite is true. Driving is an inherently dangerous activity, driving illegally even more so, and although the theft of a car is a single incident, driving a car without its owner's permission may be done many times, multiplying the threat to public safety.2 Far from being absurd, then imposing harsher punishment on driving violations of section 10851 is entirely reasonable in this respect.


The Coblentzes then moved, pursuant to CR 60.02, to set aside the order granting partial summary judgment, arguing Day presented no proof of adverse possession. The trial court granted so much of the motion awarding Day ownership of a portion of the Coblentz farm. However, it declined to set aside its finding the deed was champertous. Day then voluntarily dismissed his claims for adverse possession and <mask> of timber. The Coblentzes prevailed on all remaining issues at a jury trial. The trial court's judgment following the jury verdict made the partial summary judgment entered in Day's favor final and appealable.


What distinguishes this case from Williams , supra , 57 Cal.4th 776, 161 Cal.Rptr.3d 81, 305 P.3d 1241, is precisely what distinguishes <mask> by larceny from theft by false pretenses. As discussed above, theft by false pretenses requires two elements which larceny does not: the consent of the lawful owner to the defendant taking the *245property; and the lawful owner's reliance on the defendant's false representation. (Compare Davis , supra , 19 Cal.4th at p. 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165 with *910Williams , supra , 57 Cal.4th at p. 787, 161 Cal.Rptr.3d 81, 305 P.3d 1241.)


The dissent asks us to consider the impact on inherent dangerousness by manufacturing methamphetamine in a more professional setting. To that end, he suggests that manufacturing (1) in a well-ventilated and equipped laboratory or (2) by a Ph.D. in chemistry could demonstrate that it is possible to manufacture methamphetamine safely, citing Howard . He offers in support a 2005 article titled SDSU grad indicted on charges he used campus lab to make drugs , and a 2008 article titled, Ex-Ph.D student makes a deal in meth, <mask> case , involving a University of California at Merced doctoral student. (Dis. opn. post , at p. 696, fns. 3, 4.) The first article alleged a San Diego State University graduate "used a campus laboratory to manufacture methamphetamine, Ecstasy and other drugs," and that additional Ecstasy and fentanyl were recovered at his residence. The article presents no information from which to infer that the campus environment was any "safer" a venue to manufacture methamphetamine. (See The San Diego Union-Tribune, SDSU grad indicted on charges he used campus lab to make drugs (June 30, 2005) http://www.sandiegouniontribune.com/sdut-sdsu-grad-indicted-on-charges-he-used-campus-lab-2005jun30-story.html [as of April 25, 2019].) Similarly, the doctoral student in Merced was charged with "felony conspiracy to make meth[amphetamine] and embezzlement" for allegedly stealing "$ 10,000 in chemicals and equipment from the school" to manufacture methamphetamine. Again, the article reveals nothing from which to infer that the student was "safely" producing methamphetamine. In fact, the investigation led to his and other residences where "several thousand dollars worth of glass flasks, vessels, pumps and other equipment, as well as chemicals used in the production of meth" was found. (See The Modesto Bee, Ex-Ph.D student makes a deal in meth , theft case (Sept. 27, 2018) < https://www.modbee.com/news/local/crime/article3114437.html> [as of April 25, 2019].) Storing chemicals in residences does not seem particularly any safer, despite the student's doctoral candidacy. The dissent also asks whether the outcome would be different if manufacturing took place in an isolated location, and "Does the law change if, in the next case, the defendant is not someone like Gregory White but instead like Walter White?" (Dis. opn. post , at p. 697 and fn. 5 [citing a Wikipedia entry for the fictional Walter White of the "Breaking Bad" television show]. (See Walter White (Breaking Bad )-Wikipedia, The Free Encyclopedia < https://en.wikipedia.org/wiki/Walter_White_(Breaking_Bad)> [as of April 25, 2019] ).) The comparison to a fictional character is compromised when one realizes that the producers of that series had an interest in ensuring the protagonist-meth-cooking Walter-returned after each episode instead of perhaps perishing in a fire or explosion or from toxic fumes. Further, while we are reluctant to rely on a Wikipedia article (see Crispin v. Christian Audigier , Inc. (C.D. Cal. 2010) 717 F.Supp.2d 965, 976, fn. 19 [collecting cases on the unreliability of a "user-generated source" as a legal reference]; Gerritsen v. Warner Bros. Entertainment Inc. (C.D. Cal. 2015) 112 F.Supp.3d 1011, 1028 ; People v. Stamps (2016) 3 Cal.App.5th 988, 997, 207 Cal.Rptr.3d 828 [Wikipedia considered as hearsay] ), we would point out that the article's abstract of five seasons of the Breaking Bad series indicates several deaths occurred during the fictional Walter's enterprise, if apparently intentional. For example, the article states that in the first season, Walter begins a "cook," only to produce phosphine gas. Phosphine gas is a toxic byproduct of methamphetamine manufacturing that was used as a nerve agent in World War I. (See People v. Odom (1991) 226 Cal.App.3d 1028, 1034, 277 Cal.Rptr. 265.) Walter then used the gas to kill one antagonist and incapacitate another, only to garotte him later. Notwithstanding dramatic plot twists, manufacturing in an isolated location is not dispositive of safety, and if an accomplice or other person is killed during the process, exposure to murder charges exists regardless of location. Of course, if no one else is present, there can be no killing for purposes of the second degree felony-murder rule and the issue is moot.


Let me say at once that petitioner’s personal character is not in issue. But the respondent contends that denial of renewal of license is warranted because petitioner’s son who in March, 1958, Was 16 years of age, had been twice apprehended and *1022charged with violation of law. Denial is rested on ‘ ‘ the situation as it exists in his home. ’ ’ Two pistols were burglarized from his home in his absence. The premises had been completely ransacked and the pistols discovered and taken despite their storage in apparently inaccessible locations. Petitioner secured the return of the pistols on January 30,1959, four days after the <mask>.


The specific grounds for DCAS’s denial of petitioner’s application were his 2009 dismissal by DOE as a school custodian “for misconduct related to <mask> of school property and conflict of interest for receiving improper compensation by concealing payment for contracted work,” construction of a wall in the basement of the school where petitioner was employed. (Verified petition, exhibit A.) After a hearing by a City Office of Administrative Trials and Hearings (OATH) administrative law judge (ALJ), DOE’s Chancellor accepted the ALJ’s recommendation and terminated petitioner’s employment in a decision dated November 16, 2009. The Chancellor found that petitioner’s “actions involved deception and moral turpitude” and that he “displayed no remorse” and took no “responsibility for his proven misconduct.” {Id., exhibit B at 2.)


The probation report submitted to the juvenile court indicated that Mark had a record of disciplinary issues at school, had been arrested for vehicle <mask> earlier in the year and was currently participating in a restorative justice program, and had been cited for stealing a sports jersey at the mall the day before he was arrested for bringing a weapon to school.


The police officer who was called to the scene by a witness who saw the attempted <mask>, testified that he was unable to apprehend the thief, but that the right wheel of the automobile was over the curb and there was evidence that the front of the defendant’s automobile had struck the rear of the plaintiff’s automobile. He further stated that he entered the defendant’s car and tried to start the motor; that he was able to do so by turning the ignition switch even though there was no key visible. However, when he stopped the motor and turned the key to the locked position he was unable to start the motor again.


In Vidana , supra , 1 Cal.5th at p. 649, 206 Cal.Rptr.3d 556, 377 P.3d 805, the court held that grand <mask> by larceny under section 487, subdivision (a), and embezzlement under section 503 are "different statements of the same offense." It reached this result notwithstanding that separate code provisions were involved, based on a comprehensive review of California's theft statutes including section 490a, which states " '[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 therefore.' "


D.N.'s adjudication for felony <mask> of a vehicle pursuant to Vehicle Code section 10851 is reduced to a misdemeanor. The case is remanded to the juvenile court for the court to amend its minute orders from the jurisdiction and disposition hearings to reflect D.N.'s adjudication in count 2 is a misdemeanor. The remaining orders of the juvenile court are affirmed.


In Halper (supra) the formula utilized by the False Claims Act produced a penalty of somewhat over 224 times the actual <mask>.6 This disturbed the Supreme Court as being grossly inconsistent with a remedial interpretation of the effect of the statute. Indeed, the court took special pains to point out in footnote 9 the fact that under the false claim statute as amended in 1986 the civil penalty against the defendant would have been more than $326,755, almost 560 times the actual theft. (490 US, supra, at 450.)


Limitation by petitioner’s brief to the narrower question has important bearing on whether the proceeding may be maintained as a class action. So limited, the issue becomes not whether respondent has determined on substantial evidence that petitioner and her children are not destitute or that no loss or <mask> occurred, but whether respondent’s refusal as a matter of policy to consider the facts is impermissible under governing statutes and regulations. While the first would be a situation in which the wrongs asserted are individual to the different persons involved and thus not properly the subject of a class action (Gaynor v. Rockefeller, 15 N Y 2d 120; Summers v. Wyman, 64 Misc 2d 67, affd. 36 A D 2d 795), the second Avould be a breach of duty which adversely affects in the same way the interest of every grant recipient whose cash has been lost or *692stolen ‘ ‘ and, being a wrong done to all, it should be susceptible of correction by legal action taken for the benefit of all ’ ’, Lichtyger v. Franchard Corp (18 N Y 2d 528, 537). Furthermore, a judgment in favor of all members of the class (persons denied a special grant by reason of respondent’s policy refusal to consider their requests on the facts) “ could not, of course, prejudice the interests of any members of the class ” (Lichtyger v. Franchard Corp., supra, p. 528, n. 2). While it is true, as respondent’s brief notes, that Hall v. Coburn Corp. of Amer. (26 N Y 2d 396, 402) emphasized “ the closely associated relationships growing out of trust, partnership or joint venture, and ownership of corporate stock ’ ’ that have existed in class actions sanctioned by the Court of Appeals, it is also true that CPLB 1005 (subd. [a]) is not limited to those situations alone and that the question whether respondent’s flat policy determination is permissible ‘ ‘ is one of common or general interest of many persons ” (i.e. those who have been, or may hereafter be, denied a special grant without regard to the facts).


This explanation does several things to support the conclusion that the electorate intended not only a narrow definition of larceny in the proposed shoplifting statute, but also the use of the historical definition of larceny. First, the analysis specifically describes shoplifting as "a type of petty <mask>." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35.) This description not only associates shoplifting with a specific type of crime, petty theft, but further identifies shoplifting as only a subset of that crime. At a minimum, then, the voters would expect shoplifting to be narrower than petty theft if relying on this description. Second, the analysis differentiates shoplifting from burglary, explaining that shoplifting is sometimes charged as burglary, as opposed to the petty theft of which it is a subset, and explicitly preventing that future practice. (Ibid .) Thus, voters relying on these statements would expect that shoplifting would be treated differently from burglary if Proposition 47 is passed. Finally, the analysis treats shoplifting as an existing crime, listing it with other known crimes which already have statutory definitions such as grand theft, receiving stolen property, writing bad checks, forgery, and drug possession, while consistently *680using language suggesting individuals are regularly incarcerated for committing such crimes. (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, pp. 35-36 ["the measure reduces the penalties for the following crimes"; "about 40,000 offenders annually are convicted of the above crimes"; "the above crimes are nonserious and nonviolent, most offenders are currently being handled at the county level"].) As such, one reading the analysis would conclude that the crime of shoplifting already exists and, knowledgeable about the general description of the crime in California case law to that point (People v. Superior Court (Cervantes ), supra , 225 Cal.App.4th at p. 1015, 171 Cal.Rptr.3d 86 ), would likely understand the crime to be limited in line with the historical definition of larceny.


Caretto's offense was receiving stolen property in violation of section 496, not <mask> of access card information in violation of section 484e, subdivision (c). But the valuation issue is the same and the reasoning in Romanowski applies with equal force. Caretto contended in the trial court that a debit card has only the minimal, intrinsic value of its plastic. As noted above, Romanowski rejected that approach in favor of applying the fair market value test. ( Romanowski, supra, 2 Cal.5th at p. 915, 215 Cal.Rptr.3d 758, 391 P.3d 633 [finding this "approach has no basis in the statutory language 'reasonable and fair market value' " in § 484, subd. (a) ].) Caretto now contends the "reasonable and fair market value" cannot be based on the amount of money in the linked accounts because, in his view, "that is not how much the stolen cards would sell for." Instead, he argues that because Romanowski did not preclude the use of black market value, he is entitled to remand for an opportunity to present evidence of "black market worth."


In April 2015, defendant filed a motion seeking to be resentenced in the felony grand <mask> case on the ground that the redesignation of the petty theft with a prior conviction as a misdemeanor meant it was no longer a prior prison term for a felony under section 667.5, subdivision (b); thus, she argued, she was entitled to have her felony grand theft sentence reduced by a year.


The laws of most civilized nations show that they have considered it^unsafe to leave the necessitous borrower in the power of the lender. By the law of Moses, the Jews were prohibited from lending money upon usury to their brethren; though they were allowed to exact any rate of interest which *593they could obtain from strangers, the inhabitants of the surrounding nations, against whom the divine vengeance was denounced, on account of their idolatries and abominations ; but under the gospel dispensation, which teaches us to consider and treat all mankind as our brethren, every kind of lending upon usury is most unequivocally condemned. Long before the introduction of Christianity among the Romans, their laws also had prohibited the lending of money upon usury, and they punished it even more severely than the crime of <mask>, although judicial interest was allowed for withholding the payment of the money loaned, after the expiration of the stipulated time. This law was subsequently altered so as to allow a limited compensation by way of interest on the loan ©f money ; and with various modifications, it still exists as the law of those countries which have derived the fundamental principles of their several codes from the ample stores of the civil law. 1 Domat, 128. 1 Bro. Civ. & Adm. Law, 376. Inst. Law of Spain, 283. Van Der Linden’s Inst. 318, § 3. 1 Bell’s Com. 308, Neither have these regulations, as to the rates of interest to be taken on loans of money, been confined to the Jews, and to those nations usually denominated civilized. By the laws of China, interest on a loan is limited to a certain rate per month, and whatever may be the term of credit, the lender can in no case recover interest exceeding the amount of the original debt, on the principal of the sum loaned. Staunt. Law of China, 158. So by the institutes of the Emperor Akber, a descendant of Tamerlane, and who gave law to a vast empire in Asia two hundred and fifty years since, the amount of interest on a simple loan was fixed at a certain rate per month, according to the rank of the parties to the loan ; and for a loan upon security or deposit, the interest was but one fourth of the amount allowed on a simple loan, and, as in the laws of China and of Rome, interest was in no case recoverable beyond the amount of the sum lent. 1 Glad-win’s Ayeen Akbery, 471. So also, by the present law of the Hindoos, their rate of interest is fixed according to the rank of the parties; the highest interest being payable between persons of the lowest caste, and the rate of interest allowed on simple loans being higher than that allowed on loans upon *594deposit, &c. 1 Strange’s Hindu Law, 297. With such evidences before us of the common understanding of mankind on this subject, and in all ages of the world, can it be doubted that the needy borrower must to a certain extent be protected against himself, and against the disastrous effects of his own improvidence 1


A review of case law in this jurisdiction reveals but one definition of the words ‘ ‘ attended ’ ’ and ‘ ‘ unattended ’ ’ when used in an exclusionary clause of an insurance contract. In Kinscherf Co. v. St. Paul Fire and Marine Ins. Co. (234 App. Div. 385, 386), the court was called upon to interpret a policy provision denying coverage “ whilst in or upon any automobile •' * * unless such conveyance is attended at the time the loss occurs by a permanent employee of the assured.” The court held (p. 386) that, “ such language can only be interpreted to *694mean that if the permanent employee of the plaintiff is not actually within or on the automobile, or so near thereto as to be able to observe a <mask> of the contents, he shall not be deemed to be in attendance at the time the loss occurs


There is another facet of the conspiracy with which the defendant is charged which is, in the court’s view, unsupported by the evidence. The alleged middlemen, operating as Melo Fashions, allegedly paid a detective Thomas Holland to provide confidential law enforcement information to protect the operation from investigation and the operatives from arrest. There is no evidence that the defendant participated in or had actual knowledge of this aspect of the conspiracy. Since the inference of defendant’s knowledge of the existence of others in the enterprise is justified by the essential nature of the conspiracy (United States v Agueci, supra, at p 827), and since bribery and bribe *466receiving were not foreseeably integral to the operation of the <mask> and distribution of stolen property scheme, the defendant cannot justifiably be held to have agreed to the commission of these crimes (see United States v Rosenblatt, supra, at p 38; People v Vario, 56 AD2d 641). In the court’s view, the receipt at trial of evidence regarding these crimes might substantially prejudice the accused by injecting a sensational issue into the trial which is not probative of defendant’s participation in the conspiracy (cf. United States v Agueci, supra, at p 827).


"If you conclude that the defendant committed another charged offense or committed the uncharged offense, that conclusion is only one factor to *325consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Second Degree Burglary and/or Grand <mask> of Personal Property. The People must still prove every charge beyond a reasonable doubt."


GRATTON, Judge Kegan Ray Kolander appeals from the district court’s order of restitution. Kolander argues the district court abused its discretion when it granted the State’s amended motion for restitution. For the reasons set forth below, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Kolander was charged with four counts of grand <mask> by unauthorized control, Idaho Code § 18-2403(3), and three counts of burglary, I.C. § 18-1401, after using an acquaintance’s financial transaction card without consent. Pursuant to a plea agreement, filed in January 2020, Kolander pled guilty to one count of grand theft by unauthorized control and one count of burglary. The State dismissed all remaining charges. The plea agreement included a provision wherein Kolander


In 2012, an information in San Diego County Superior Court case No. SCD240790 charged Carrea with one count of inflicting corporal injury to a former cohabitant (§ 273.5, subd. (a)) and alleged he had three prison priors within the meaning of sections 667.5, subdivision (b), and 668. The second prison prior allegation alleged he had section 484 <mask> and section 459 burglary convictions in 2004 for which he allegedly served a prison term and did not remain free of custody for five years after his release. In August 2012, a jury found Carrea guilty of the section 273.5, subdivision (a), offense and he admitted the truth of the prison prior allegations. In January 2013, the trial court sentenced him to a total term of seven years, including a four-year term for his section 273.5, subdivision (a), conviction, plus consecutive one-year terms for each of the three prison prior enhancements.2


We affirm. Viewing these unusual facts in the light most favorable to the verdict, we conclude substantial evidence supports Kaufman's conviction for grand <mask> by larceny, and the trial court properly instructed the jury on that offense. We find no basis to conclude that a victim's attempted extortion of the defendant presents a valid defense to a charge of theft by larceny. Even if it were a valid defense, the evidence Kaufman sought to introduce came in at trial and did not present substantial evidence of extortion to warrant a jury instruction. Finally, we reject the People's claim of sentencing error and conclude that by ordering summary probation, the trial court classified Kaufman's offense as a misdemeanor by operation of law.


See OCGA §§ 17-3-1 (c) (providing for limitation period of four years for felonies other than those specifically listed or otherwise excluded); 16-8-12 (a) (3) (classifying <mask> by taking as a felony if committed “by a fiduciary in breach of a fiduciary obligation”). This Court denied McClendon’s application for interlocutory appeal of this ruling. McClendon v. State, Case No. A20I0124 (Dec. 13, 2019).


Proposition 47 also added section 490.2, which states in part: "Notwithstanding Section 487 or any other provision of law defining grand <mask>, obtaining any property by theft where the value of the money, labor, real or *647personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor ...." ( § 490.2.)


*268For example, in J.B ., our colleagues in Division Three struck such a condition as unreasonable. ( J.B., supra , 242 Cal.App.4th at p. 752, 195 Cal.Rptr.3d 589.) The minor admitted an allegation of petty <mask>, was adjudged a ward of the court, and placed on probation. The juvenile court imposed an electronics search condition, relying on the minor's statement he had been using marijuana for at least two and a half years and the court's experience that minors using drugs tend to brag about their usage on the Internet. ( Id. at pp. 752-753, 195 Cal.Rptr.3d 589.) J.B.


On April 16, 2016, plaintiff submitted a telephonic whistleblower complaint to the Auditor. He "reported the ... flaws in the Lottery's Retailer *478Compliance Program as well as the Lottery's failure to implement notification systems to flag and apprise investigators in advance of suspicious transactions and activities. In reporting the Lottery's failure to employ sufficient oversight and safeguards to prevent <mask> and embezzlement of scratchers tickets," plaintiff identified two specific cases "whereby scratchers tickets retailers or their employees were able to abscond with approximately $123,000 and $270,000 worth of tickets ... months before the Lottery even became suspicious and began to investigate." He reported that defendant uses notification systems for its other games, but not for scratchers tickets, and he "apprised the Bureau of the statements I had received from other Lottery[ ] supervisors and staff indicating that the Lottery was more concerned about sales of Lottery tickets than with preventing fraud."


When a speaker communicates information on a subject matter in which he has an interest or in reference to which he has a duty and such information is communicated to a person with a corresponding interest or duty, a qualified privilege exists (La Scala v D’Angelo, 104 AD2d 930, 931). Ms. Pizarro and all others present when Mr. Baeza made the remarks were all employees at Debevoise, and all shared an interest in protecting documents from <mask>.


*914The majority opinion relies on People v. Davis (1998) 19 Cal.4th 301, 79 Cal.Rptr.2d 295, 965 P.2d 1165 ( Davis ) and attempts to distinguish Williams to find that the basis of Mireles's crime was larceny rather than <mask> by false pretenses and that, therefore, his conviction for robbery is supported by People v. Estes (1983) 147 Cal.App.3d 23, 194 Cal.Rptr. 909.


We are not persuaded by the People's reliance on either People v. Huerta (2016) 3 Cal.App.5th 539, 207 Cal.Rptr.3d 637 ( Huerta ), or People v. Segura (2015) 239 Cal.App.4th 1282, 191 Cal.Rptr.3d 904 ( Segura ), both of which predate Gonzales and Romanowski. Moreover, Huerta does not aid the People's position. The District Attorney in that case argued that Huerta was not eligible to have her burglary conviction redesignated as misdemeanor <mask> because she committed felony conspiracy during the offense. ( Huerta, at pp. 544-545, 207 Cal.Rptr.3d 637.) The Court of Appeal determined that under the plain text of section 459.5, "the prosecutors would have been required to charge [Huerta] with shoplifting and could not have charged her with burglary predicated on conspiracy had Proposition 47 been in effect at the time of her offense." ( Huerta, at p. 545, 207 Cal.Rptr.3d 637.) As a result, Huerta was entitled to have her burglary conviction reclassified as misdemeanor shoplifting. ( Ibid. )


Ms. Jones described the scope of her part-time employment with Dillard's. She stated that she worked "off-duty" for Dillard's, during which time she was in uniform but was paid by Dillard's. Although her primary responsibilities were to deter crime and prevent <mask>, Ms. Jones had the full authority, as a Little Rock police officer, to make arrests for any criminal acts she observed. Ms. Jones stated that, during the 2012 incident when she was injured, she was attempting to make an arrest. She further stated that she had gotten involved in other incidents while working at Dillard's that did not involve Dillard's. For example, on one occasion Ms. Jones took a report from a lady who had her purse stolen, and on another occasion she made contact with and assisted in arresting an intoxicated man who had passed out in his car with a child present. Ms. Jones indicated that Dillard's did not object to her participation in these other criminal episodes and that, had she not gotten involved, she would have been in trouble with the Department.


As a result of the passage of Proposition 47 in November 2014, the felony offenses in the three cases were reclassified as misdemeanors with one exception: resisting an executive officer in the present case. (§ 69.) In April 2015 appellant filed a petition for the recall of his felony sentence for second degree commercial burglary ( § 459 ) in the present case. Appellant requested that he be resentenced to misdemeanor <mask> (§ 459.5) pursuant to section 1170.18, subdivisions (a) and (b).2


To the extent that the People’s argument can be read to suggest that the defendant’s criminal history would also not support Ms. Cardona’s conclusion that he has an addiction or dependence on cocaine or alcohol, that argument does have some validity. The defendant’s criminal record not only shows that he is a dealer of narcotics, but there is a glaring absence of any arrests or convictions for crimes in which cocaine was possessed for individual use. In fact, there is not a single misdemeanor arrest or conviction noted on his criminal record. Of course, the court understands that a person can be an addict and/or substance dependent and never have a positive random toxicology test, or never attend a treatment program, or never be arrested for “addict-type” crimes such as possession of a crack pipe or hypodermic needle, <mask>, criminal mischief, car theft, trespassing, or DWI. But the absence of even one of these facts in this case hardly supports the defendant’s claim that he has a cocaine and alcohol addiction or dependence, let alone one serious enough to justify placing him into a long-term residential treatment program.


The analysis by the Legislative Analyst provides a summary of the "Proposal " made by Proposition 47. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), analysis of Prop. 47 by Legis. Analyst, pp. 35-36.) This proposal identifies several specific crimes, their existing penalties, and *568describes how Proposition 47 would change the punishment for each specific crime. As the analysis explains, "the measure reduces the penalties for the following crimes: [¶] ... [¶] ... <mask>. Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35.)


"(a) Notwithstanding Section 459, <mask> 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."2 Lopez contends that because he was charged with shoplifting pursuant to section 459.5, he could not also be charged with petty theft with a prior pursuant to sections 484 and 666. The People argue that in order to avoid absurd results, this court should interpret section 459.5 to permit alternate charging of shoplifting and petty theft.


In March 2017, People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437 held that entering a bank to cash a stolen check for less than $950 is "shoplifting" within the meaning of section 459.5. ( *953Id. at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The Court further held that even if the defendant entered the bank with an intent to commit identity theft, he could only be charged with <mask> under section 459.5. ( Id. at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


In reaching this conclusion, we are not swayed by the Attorney General's argument that while "the outside of an operating ATM may be very similar to the inside of [a] bank that is open for business," the inside of an ATM is never open to the public and thus entry into it cannot be deemed entry into a commercial establishment. We are aware that the Supreme Court is currently considering a case involving the possible distinction between commercial and non-commercial spaces within an establishment for purposes of section 459.5. (See People v. Colbert (2016) 5 Cal.App.5th 385, 209 Cal.Rptr.3d 822, review granted Feb. 15, 2017, S238954 ( Colbert ) [identifying issue on review as whether a defendant's entry into a separate office area of a commercial establishment that was off-limits to the general public constitutes an "exit" from the "commercial" part of the establishment that precluded reducing his conviction for second degree burglary to misdemeanor <mask> under Penal Code section 459.5 ].) However, we do not find the Colbert situation particularly analogous to the case at hand. Rather, we consider the Fifth District's recent opinion in People v. Bunyard (2017) 9 Cal.App.5th 1237, 215 Cal.Rptr.3d 628 ( Bunyard ) instructive.