As will be discussed post , it is important to note that there is one substantial difference. Historical references treat the crime of <mask> as a theft offense, which is consistent with other state's statutory definitions and schemes. (See e.g., N.M. Stat. Ann. § 30-16-20 (LexisNexis 2016) [defining shoplifting as taking or concealing merchandise with the intention of converting it without paying for it or altering the price tag or container in order to deprive the merchant of all or some part of the value of the merchandise]; Nev. Rev. Stat. Ann. § 597.850 (LexisNexis 2015) ["A merchant is presumed to have reason to believe that merchandise has been wrongfully taken by a person and that the merchant can recover the merchandise by taking the person into custody and detaining the person if the merchant observed the person concealing merchandise while on the premises."]; Or. Rev. Stat. Ann. § 30.875 (LexisNexis 2016) ["An adult ... who takes possession of any merchandise displayed or offered for sale by any mercantile establishment ... without the consent of the owner and with the intention of converting such merchandise ... to the individual's own use without having paid the purchase price thereof...."]; see also Ariz. Rev. Stat. § 13-1805 (LexisNexis 2016) [in addition to provisions similar to New Mexico's statute, defining shoplifting as "[c]harging the purchase price of the goods to a fictitious person or any person without that person's authority"].) The definition of shoplifting under Proposition 47, however, invokes not only the structure and phrasing of California's burglary law but the statute itself. (See §§ 459 ["Every person who enters any [defined structure], with intent to commit grand or petit larceny or any felony is guilty of burglary."]; 459.5 ["Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny...."].)


The trial court erred by allowing section 459.5's term for the offense, <mask>, to govern the definition of the crime. While section 459.5 sets forth the new crime of shoplifting, it does not use that term to define the criminal conduct that constitutes the offense. Rather than leaving the term "shoplifting" undefined or defining it by reference to the common meaning of that term, section 459.5 gives it a more technical, legal definition as a subset of commercial burglary, entry into a commercial establishment during regular business hours with the intent to commit or committing larceny. By relying on the common meaning of the descriptive term for the crime, the trial court ignores the key operative word, larceny, which has a technical, legal definition that the trial court missed.


It appears that Macy’s is acting beyond the scope of its power given under the statutes. In that case, the balance of the equities tips more favorably for plaintiff. The harm a consumer will encounter in being detained, confessing and agreeing to pay a civil penalty while in detention far outweighs the harm, if any, Macy’s would incur in being enjoined from demanding confessions and payments while the individual is under detention. A preliminary injunction preventing Macy’s from demanding written confessions and payments from a suspected shoplifter while in detention in no way prevents Macy’s from proceeding to demand payment through a collection effort by its attorneys, or through a civil action, after the suspected shoplifter has been released. It should be noted that the bill jacket contemplates those suspected of <mask> would be informed that the merchant will seek civil restitution, then be allowed to leave the store, then be served with a demand letter with an offer to settle. Demanding payment while the suspected shoplifter is under the merchant’s detention is not contemplated.


Starting first with the statutory scheme of Proposition 47, a rote application of the broader term of theft to the text of the <mask> statute assumes that the electorate was either unable to or did not desire to *681distinguish between larceny and other forms of theft when enacting the new and amended laws. But this notion is undermined by the language choices made within Proposition 47. In the shoplifting statute, "larceny" is differentiated from "theft." The statute uses larceny in the definition of shoplifting, but protects shoplifters from discretionary charging choices by adding that no person "charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subd. (b).) This choice of wording within the statute at issue confirms the electorate thought larceny was something different than other forms of theft. There would be no rational purpose for choosing different words to convey the same meaning if larceny and other forms of theft were intended to be wholly overlapping terms. (See Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343, 110 Cal.Rptr.3d 628, 232 P.3d 625 [rejecting argument which "contravenes the principle that 'when different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended' "].) In addition, at least one other modification to the Penal Code brought by Proposition 47 identified theft generally as opposed to larceny specifically. (§ 490.2, subd. (a) ["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"].) Within the overall scheme of Proposition 47, then, it appears the electorate intended to differentiate larceny from theft.


Brown argues that the text of section 459.5, created in 2014 by the passage of the Safe Neighborhoods and Schools Act (Proposition 47), required the People *924to charge <mask> instead of receiving stolen property. As a question of statutory construction, this issue is reviewed de novo. ( Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529, 120 Cal.Rptr.3d 531, 246 P.3d 612.)


E.P. argues "[b]ecause [he] committed an act of <mask>, he cannot also be prosecuted for the crimes of receiving stolen property. One cannot be convicted of both stealing and receiving the same property." (See § 459.5, subd. (b) ["[a]ny act of shoplifting ... shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property"]; § 496, subd. (a) [every person who conceals or withholds stolen property from the owner knowing the property is stolen commits a crime; a principal in the actual theft of the property may be convicted pursuant to this section but no person may be convicted both pursuant to this section and of the theft of the same property];


Garcia aside, the Attorney General asserts the locker room was not part of the Anaheim ICE's commercial establishment. He argues Hallam was wrongly decided and notes the Supreme Court granted review in People v. Colbert (2016) 5 Cal.App.5th 385, 209 Cal.Rptr.3d 822, review granted February 15, 2017, S238954, H042499, to decide the following issue: "Did defendant's entry into separate office areas of a commercial establishment that were off-limits to the general public constitute 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 ?" In Colbert , the evidence showed the defendant entered the private offices of a convenience store and a gas station to steal about $300 on each occasion. The appellate court affirmed the denial of the defendant's petition to designate his crimes as shoplifting. Regardless how the court decides this issue, the evidence here shows the locker room was part of the commercial establishment.


Brandon Lamar Martin (defendant) appeals from the denial of his petition for resentencing under Penal Code section 1170.18,1 a statute added by Proposition 47, the Safe Neighborhoods and Schools Act. Defendant asserts his burglary convictions are eligible for resentencing because they would have been convictions for <mask>, punishable as misdemeanors under section 459.5, another statute added by Proposition 47. We disagree and *671affirm the judgment of the trial court. Section 459.5's use of the term "larceny" does not include all forms of theft. Defendant's felony conviction for second degree burglary, for entering a commercial establishment and acquiring merchandise by use of a forged check, is not subject to recall of sentence and resentencing under section 1170.18, subdivision (a) or designation as a misdemeanor under section 1170.18, subdivision (f), because his conduct would not have constituted a violation of section 459.5 had that section been in effect at the time of his offense.


At 8:30 p.m. on Dec. 19, 1974, Police Officer Van Sykle and his partner Police Officer Malkom, dressed in civilian clothes and in an unmarked car, drove into a parking lot adjacent to a supermarket. The area was known for its criminal activity, which consisted of purse-snatching and <mask>, and there had been narcotics sales and robberies in the vicinity. The police officers observed a van parked in front and to the right of their car, in the middle of the lot. They watched this vehicle for approximately 20 minutes. During that period of time they saw two or three individuals at a time exit the van, walk to the fence of the lot and to the store and return to the van, all without ever entering the store.


The court further explained that the use of the phrase " 'the same property' " in section 459.5, subdivision (b) "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 <mask> charge. Thus, the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950. A felony burglary charge could legitimately lie if there was proof of *391entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit." ( Gonzales , supra , 2 Cal.5th at pp. 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


Our Supreme Court has held that a Proposition 47 petition to reclassify a conviction as a misdemeanor does not provide an opportunity for the People to withdraw from a plea agreement and pursue dismissed charges. ( Harris v. Superior Court (2016) 1 Cal.5th 984, 987, 209 Cal.Rptr.3d 584, 383 P.3d 648.) In the Supreme Court case, the defendant had been charged with robbery, but the charge was dismissed when he pled guilty to grand theft from the person of another (§ 487, subd. (c)). ( Harris , supra , at pp. 987-988, 209 Cal.Rptr.3d 584, 383 P.3d 648.) Relying on the intent behind Proposition 47, the Court held that that the People could not oppose a resentencing petition by withdrawing from a plea agreement. ( Harris , supra , at pp. 991-992, 209 Cal.Rptr.3d 584, 383 P.3d 648.) In this case, then, the People cannot revive the robbery charge. Our focus must be on defendant's burglary conviction, and whether it must be recharacterized as misdemeanor <mask>.


Although Liu broadly suggests that any conviction under section 530.5 is not subject to Proposition 47 relief ( Liu , supra , 21 Cal.App.5th at pp. 150-153, 229 Cal.Rptr.3d 889 ), the only issue before it was the classification of a conviction under section 530.5, subdivision (c). The court had no occasion to consider whether a conviction under section 530.5, subdivision (a) may qualify as <mask> under section 459.5, subdivision (a). Once again, "cases are not authority for propositions not considered." ( Peoplev. Alvarez , supra , 27 Cal.4th at p. 1176, 119 Cal.Rptr.2d 903, 46 P.3d 372 ; People v. Superior Court (Rodas) , supra , 10 Cal.App.5th at p. 1323, 217 Cal.Rptr.3d 308.)


*595People v. Ceja (2010) 49 Cal.4th 1, 3, 108 Cal.Rptr.3d 568, 229 P.3d 995 [theft conviction operates as a bar to a receiving conviction].) The Attorney General concedes that if E.P.'s offense was <mask>, he cannot be prosecuted for receiving stolen property. But E.P. was not charged with shoplifting, and the juvenile court did not find that he committed shoplifting. Our reversal of the court's finding on the burglary count is not a finding that E.P. actually committed shoplifting. We merely concluded the prosecution failed to prove beyond a reasonable doubt that the crime was not shoplifting. Moreover, E.P. does not contend there was insufficient evidence to support the true findings on the receiving stolen property counts. Accordingly, we affirm the juvenile court's findings on counts 4, 5, and 6.


In Bunyard , the defendant seeking resentencing had been convicted of second degree burglary after he attempted to break into a coin-operated soap dispenser in a 24-hour commercial laundromat. ( Bunyard , supra , 9 Cal.App.5th at pp. 1240, 1244, 215 Cal.Rptr.3d 628.) The trial court determined that such conduct did not "comport with the commonsense meaning *609of 'shoplifting' " and thus denied the defendant's resentencing petition. ( Id. at pp. 1239-1240, 215 Cal.Rptr.3d 628.) The appellate court reversed, concluding that when the defendant entered the laundromat during its regular business hours with the intent to commit larceny by theft he met the statutory definition of <mask>. ( Id. at p. 1244, 215 Cal.Rptr.3d 628.) In making this determination, the court held that it did not matter whether the defendant "used a tool to effectuate the intended theft or force to attempt to break into the coin box." ( Id. at p. 1244, 215 Cal.Rptr.3d 628.) Rather, it concluded that the electorate did not intend section 459.5 to cover "only the theft of merchandise or goods displayed for sale," opining: "It would make no sense to distinguish, for purposes of misdemeanor versus felony treatment, between the intended theft of merchandise worth $10 to $15 and the intended theft of coins worth $10 to $15, simply because the former is openly displayed and offered for sale and the latter is not." ( Id. at p. 1245, 215 Cal.Rptr.3d 628.) Similarly, in this case, the fact that the money sought was located inside of the ATM is of no moment where the commercial establishment was entered with the requisite intent. (See Ravenscroft , supra , 198 Cal.App.3d at p. 644, 243 Cal.Rptr. 827 ["[t]he gravamen of burglary is an act of entry, no matter how partial or slight it may be, ... accompanied by the proper intent"]; see also Davis , supra , 18 Cal.4th at p. 715, 76 Cal.Rptr.2d 770, 958 P.2d 1083 ; Colbert , supra , 5 Cal.App.5th at p. 392, 209 Cal.Rptr.3d 822 (dis. opn. of Rushing, P.J.) [under "plain language" of section 459.5, "a defendant commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent"].)3


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


Dziunaa v Korvettes (61 AD2d 677, supra) discussed the question in connection with the validity of a waiver extracted in a criminal proceeding as a defense to liability in a subsequent civil action. The plaintiff had been arrested for <mask>. Upon the People’s consent to dismissal of the charge, the court, sua sponte, conditioned dismissal upon release by the defendant of his claim against the store. The First Department held (pp 679-680) the waiver invalid as a defense because the circumstances under which it had been obtained amounted to coercion and duress.


We are not unsympathetic to the Attorney General's argument that characterizing the instant offense as <mask> expands that term far beyond its commonly understood meaning. Were we drafting section 459.5 to more closely resemble the crime of shoplifting as it is conventionally understood, we might have limited its application to only nonviolent entries into commercial establishments and/or to thefts solely of retail merchandise. But these limitations might very well have excluded from resentencing many nonserious burglaries that the electorate would otherwise have chosen to reach, as the developing caselaw has illustrated. And, in any event, where such concepts are not included in the statutory language as it was enacted, we cannot add them by judicial fiat. (See Gonzales , supra , 2 Cal.5th at p. 871, 216 Cal.Rptr.3d 285, 392 P.3d 437 [when construing a term of art, courts must assume that the electorate was aware of the ramifications of its choice of language]; id. at p. 874, 216 Cal.Rptr.3d 285, 392 P.3d 437 [noting that section 490.5 limits its scope to petty theft of retail merchandise, while section 459.5 contains no such limiting language].)


The California Supreme Court is currently reviewing whether a defendant convicted of second degree burglary for entering a bank to cash forged checks is entitled to resentencing under section 1170.18 on the ground the offense meets the definition of <mask> under section 459.5. (People v. Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171 [entry into a bank to cash a forged check was not larceny within the meaning of § 459.5]; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673 [entry into check cashing establishment with intent to commit theft by false pretenses by cashing a forged check was an intent to commit "larceny"].)


Hallam rejected the Attorney General's argument a "room within the business where the buying and selling of goods or services does not occur" could not be part of the "commercial establishment." ( Hallam, supra, 3 Cal.App.5th at p. 912, 207 Cal.Rptr.3d 812.) "Turning to the words of the statute here, we find no indication that <mask> can occur only in specific areas of a commercial establishment. Nor does there appear any requirement that the business's commercial activity must be taking place in the area from which the theft occurs in order to qualify the offense as shoplifting. The trial court thus added an element to the offense that is absent from the plain language of the statute itself when it determined that appellant's theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandise is sold. Based on its impermissible revision of the definition of shoplifting, the court concluded that the crime was burglary rather than shoplifting because appellant entered the store through the back and stole an item from the employee restroom rather than an area of the store that was 'open for business.' " ( Id. at p. 912, 207 Cal.Rptr.3d 812.)


As a final matter, we conclude-again based upon our consideration of the electorate's objectives, as well as the need to broadly construe section 459.5 in order to effectuate its underlying purposes-that an ATM's "regular business hours" for purposes of the <mask> statute are not necessarily the "banker's hours" associated with its affiliated financial institution. As stated above, an ATM is useful precisely because it "constitutes a place where specific services are provided when the main facility is closed and not open for banking business." ( Donald , supra , 209 Cal.App.3d at p. 1194, 260 Cal.Rptr. 49.) Thus, even when the bank, itself, is closed to the public, many ATMs are still engaged in active commerce. While some may be located inside banks or other commercial establishments with more restricted business hours, many are open and available for the business of financial transactions 24 hours a day. Where the offense at issue otherwise falls below the statutory ceiling of $950 ( § 459.5 ), we can discern no meaningful *610distinction between theft from an ATM that is open after formal banking hours and one that it only open during the bank's normal business day for purposes of applying Proposition 47. We therefore reach the rather unremarkable conclusion that an ATM's "regular business hours" for purposes of section 459.5 are those hours during which the ATM, itself, is open for business.


In sum, the juvenile court erred in denying E.P.'s motion to dismiss the burglary count either on the ground that stealing from private citizens is outside the statutory definition of <mask> or on the ground that the locker room was not part of a commercial establishment. No other ground supports the court's denial. Accordingly, we reverse the juvenile court's order declaring E.P.'s offense a second degree burglary.


The trial court granted Jimenez's motion over the People's objection. It stated that it had reviewed Gonzales , supra , 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437, and People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), and concluded that under the reasoning and holding of those two cases, the "[c]ourt's hands have been somewhat tied." The court explained: "It appears indicated that when there's conduct that results in the theft, which was here theft of property when it was used to derive on two separate instances money less than $950, the Court is mandated to reduce those to misdemeanors. Those are the rulings put forth by the Supreme Court." The court further stated: "And even though [this case] involves a different charge, it appears to be somewhat of a theft charge which was the focus of Gonzale [s ] and Romanowski .... And based on the Court's review of those two recent rulings, the Court feels it is obligated ... to grant the defense motion and reduce Count 1 and Count 2 to misdemeanors as it appears to be that conduct that has been described in Proposition 47 as a <mask> type of offense."


In addition to his sexual offense history, respondent has a long history of burglary, trespassing and theft-related arrests and convictions. According to criminal history information introduced into evidence as part of Dr. Frances’ report, EH. was arrested for burglary in 1984 with no reported disposition, convicted in 1985 of receiving stolen property, convicted in a separate 1985 incident of petit larceny, convicted of petit larceny in 1986 after being arrested for burglary, convicted in a second 1986 incident of criminal possession of stolen property after being arrested for burglary, convicted of criminal trespass in 1987, convicted of burglary in 1988, convicted in a second 1988 incident of criminal trespass after being arrested for attempted burglary, convicted in 1989 of <mask> and convicted in a second 1989 incident of criminal trespass (in addition to public lewdness).


Store detectives and other retail store employees are permitted to arrest or detain persons suspected of <mask> (General Business Law §218), and such employees are generally deemed to be acting as private individuals and not as public servants. However, government cannot avoid constitutional restrictions by using private persons as its agents or by participation in the private actions to such an extent that the private character of the activity is obscured. (People v Jones, 47 NY2d 528 [1979].) Thus, where police identified themselves to the defendant at the store premises and waited outside while store detectives questioned a suspect, the participation created the type of custodial atmosphere which Miranda (supra) was intended to alleviate. (People v Jones, supra, at 534.)


The weekend preceding the dispute was Father's custody weekend. Over the weekend, Daughter took a school trip to an amusement park. On Sunday, she and several other students were caught <mask>. Father was informed of the incident and was told Daughter likely would be suspended from school. Father and Mother exchanged numerous text messages regarding the situation well into the night. In one, Father told Mother to be prepared to pick Daughter up at school the next day if she was suspended. Daughter returned from the trip around midnight and Father and Daughter talked about what had occurred until 1:00 or 1:30 a.m.


Our high court has interpreted the scope of Proposition 47's <mask> and petty theft provisions; it held that a felony burglary conviction for cashing stolen checks worth less than $950 required resentencing as a misdemeanor under Proposition 47's enactment of section 459.5 defining shoplifting.10 ( *395People v. Gonzales (2017) 2 Cal.5th 858, 862, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ).)


The Court of Appeal reversed the denial of that petition. It held that "entering a commercial establishment with the intent to use a stolen credit card to purchase property valued at no more than $950 constitutes <mask>," a misdemeanor (§ 459.5), eligible for Proposition 47 resentencing. ( People v. Garrett , supra , 248 Cal.App.4th at p. 84, 203 Cal.Rptr.3d 369.) It said, "[T]he dispositive issue is whether [the defendant's] act fell within the definition of 'shoplifting' under Section 459.5." ( Id . at p. 88, 203 Cal.Rptr.3d 369, italics added.) "[W]e must interpret Section 459.5 as if it defined shoplifting to mean 'entering a commercial establishment with intent to commit theft .' ( Ibid. ) It noted that under section 484 the definition of theft includes taking property of another " 'by any false or fraudulent representation or pretense.' " ( Id. at p. 89, 203 Cal.Rptr.3d 369.) The court said, "Using another person's credit card to purchase property without the card owner's consent is 'theft' under this definition." ( Ibid . )


The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The record supports the conclusion that defendant knew he was prohibited from entering a store as the result of a trespass notice communicated to him after a prior <mask> incident. Although the notice was not admitted into evidence, defendant nevertheless admitted receiving it and a store manager testified that, along with the store's loss prevention agent, he personally provided it to defendant (see e.g. People v Guerman, 156 AD3d 544, 544 [1st Dept 2017], lv denied 31 NY3d 1014 [2018]). Additionally, there was corroborating circumstantial evidence. THIS CONSTITUTES THE DECISION AND ORDER


Thereafter, in October 2015, Osotonu filed the instant petition, asking the trial court to recall his three convictions for second degree burglary and resentence him to misdemeanor <mask>. Only one of those three convictions-that involving count 10-is at issue in this appeal. The Solano County District Attorney's opposition to the petition describes the incident underlying the relevant offense as follows: "With respect to the burglary in Count 10, on January 26, 1997, a bomb exploded at the Wells Fargo Bank/ATM machine on Tennessee Street in Vallejo at approximately *6042:50 a.m. The eastside of the bank was damaged and a portion of the ATM machine was blown apart. The steel frame of the ATM machine was located in a nearby parking lot and there was a crater in the cement wall near the machine." Reportedly, the ATM was targeted as part of a larger scheme to help a co-defendant "destroy the evidence in [that co-defendant's] criminal case by means of an explosion." According to Osotonu, he agreed to participate in the ATM crime with the intent "to create a diversion and to get money."


We reverse. After Proposition 47, an offense is <mask>, not burglary, if it involves "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)." Further, no one "who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subds. (a) & (b).)


Our holding does not affect the burden of proof on a petition for resentencing of a burglary conviction to a <mask> conviction under Proposition 47. The petitioner has the burden to demonstrate eligibility for resentencing relief. (People v. Romanowski , supra , 2 Cal.5th at p. 916, 215 Cal.Rptr.3d 758, 391 P.3d 633 ; People v. Sherow (2015) 239 Cal.App.4th 875, 880, 191 Cal.Rptr.3d 295.)


As enacted by Proposition 47, section 459.5 redefines certain second degree burglaries as "shoplifting" if the value of the property involved is less than $950: "(a) Notwithstanding Section 459 [ (the general burglary statute) ], <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." As the Legislative Analyst for Proposition 47 explained, "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 *642measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legislative Analyst, p. 35.)


In sum, the meaning of the text is clear. Despite the fact that many cases of <mask> also fall within the definition of burglary, if a prosecutor wishes to charge those cases as either shoplifting or burglary, then he must charge shoplifting and shoplifting alone. Here, on the other hand, the prosecution charged Brown with neither shoplifting nor burglary; instead, Brown was charged with receiving stolen property under section 496. Taking into account *731both the context and plain language of section 495.5, no issue arises under that statute in the instant case.2 *925Brown's reliance on People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437 is misplaced. In that case, Gonzales pled guilty to one felony count of burglary, based on his entry into a bank to cash a stolen check in an amount less than $950. ( Id. at 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Relying on section 459.5, our Supreme Court agreed that the conduct underlying the burglary charge constituted misdemeanor shoplifting and remanded to the trial court for misdemeanor resentencing. ( Id. at 862, 877, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Gonzales thus involved a case originally charged as a felony burglary under section 459, the very statute expressly referenced and targeted in section 459.5. The Gonzales court's statement that "[a] defendant must be charged only with shoplifting when the statute [section 459.5] applies " therefore does nothing to advance Brown's assertion that section 459.5 extends to defendants convicted under section 496, subdivision (a).3 ( Id. at 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


"A felony burglary charge could legitimately lie if there was proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the <mask> limit." (People v. Gonzales (2017) 2 Cal.5th 858, 877, 216 Cal.Rptr.3d 285, 392 P.3d 437 (Gonzales ).) The prosecution did not prove those facts occurred in this case.


An extreme case would occur if a literal interpretation of section 459.5 would lead to absurd results. (See City & County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 52, 184 Cal.Rptr. 713, 648 P.2d 935 ["an initiative measure should receive a practical construction, [and] its literal language may be disregarded to avoid absurd results"].) It is not absurd that the electorate would want to maintain conspiracy to commit <mask> as a "wobbler," i.e., punishable in the court's discretion as a misdemeanor or felony, instead of requiring that it be punishable as a misdemeanor in all cases.


The People appeal from an order granting the petition of defendant Phillip Pernell Bias under Penal Code section 1170.181 to reduce defendant's conviction *485of second degree burglary (§ 459) to misdemeanor <mask> (§ 459.5). The People contend that defendant failed to meet his burden of proving eligibility for resentencing, and the trial court erred in granting defendant's petition because he remained guilty of second degree burglary, not misdemeanor shoplifting. We agree with the People and reverse the judgment.


[section 530.5, subdivisions (a) and (c)] in a section of the Penal Code chapter proscribing ‘false personation and cheats,’ not the section proscribing ‘larceny’ ”; that section 530.5(e) does not use the term “grand theft” to define the crime it creates; and that section 530.5(e) does not set differing punishments for the crime of mail theft based on the value of the mail stolen. While those similarities do exist, the offense in Page was created by a statute that was outside the larceny chapter and the Penal Code altogether, did not use the term “grand theft,” and did not base punishment on the value of the car at issue. (See Veh. Code, § 10851.) The reasoning by which the court in Jimenez held that Page did not apply to identity theft confirms that Page does govern the crime of mail theft under section 530.5(e). “What we decided [in Page] is that one version of Vehicle Code section 10851—'taking or driving a vehicle without the owner’s consent’—established an offense qualifying as petty theft under the new . . . section 490.2 . . . [which] mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by theft’ [worth] . . . $950 or less. [Citation.] Although Vehicle Code section 10851 did not ‘expressly designate the offense as ‘ “grand theft” ’ and its prohibitions swept more broadly than ‘theft,’ we had previously identified a theft and nontheft way to commit the offense. [Citation.] The theft version of the vehicular offense fully mapped on to the new petty theft statute, and we thus concluded that [that] version, alone, was eligible for reduction: ‘ “[A] defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession” has been convicted of stealing the vehicle.’ [Citation.] [¶] The same doesn’t hold for Jimenez’s offense. Where Vehicle Code section 10851 contemplates two permutations—one fully satisfying the elements of petty theft after Proposition 47—. . . section 530.5, subdivision (a) contains no separate provision that, when violated, exclusively constitutes <mask> or even


That is exactly the case here. The trial court could not lawfully impose a misdemeanor sentence for defendant's offense unless that offense qualified as <mask> under section 459.5. Despite the prosecutor's assurances at the time of resentencing, it did not. The record shows that defendant was charged with entering a storage locker with intent to commit larceny. He pleaded no contest, and his counsel stipulated to a factual basis for the plea based in part on the preliminary hearing transcript. That transcript shows, without question, that the storage locker at issue was leased by an individual and kept locked; it was not open to the public as a commercial business. Therefore, defendant's entry into the locker to commit larceny did not constitute shoplifting, and he did not qualify for resentencing under Proposition 47. (See People v. Stylz (2016) 2 Cal.App.5th 530, 206 Cal.Rptr.3d 301 ( Stylz ) [a privately leased storage locker in a storage facility is not a commercial establishment under the shoplifting statute].)


Taken at face value, then, the crime of <mask> is committed by one who: (1) enters a commercial establishment; (2) with the intent to (a) take possession; (b) of personal property; (c) owned or possessed by another; (d) by means of trespass; (e) steal the property; and (f) carry it away; (3) while *675that establishment is open during regular business hours; and (4) where the value of the property that is taken or intended to be taken does not exceed $950.


Even if there was some greater reason to associate the crime of <mask> with *570the crime of burglary, as opposed to petty theft, there would be scant authority to expand the meaning of larceny. *682The burglary statute has used the term larceny since at least 1892. (See People v. Barry (1892) 94 Cal. 481, 482, 29 P. 1026 ["Viewed in the light of section 459 ..., which says: 'Every person who enters any house, room, store, ... with intent to commit grand or petit larceny, or any felony, is guilty of burglary,'-the ruling of the court is correct."] italics omitted.) Thus, regardless of the soundness of the conclusion, it is, at least as an initial matter, reasonable to consider whether the Legislature in 1927 considered the impact of section 490a on the burglary statute and proceeded despite the potential broadening of that statute. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 31, 46 Cal.Rptr.2d 840 ; compare People v. Myers (1929) 206 Cal. 480, 485, 275 P. 219 [finding that nomenclature change effected by § 490a did not disturb the substance of any law, making it "unimportant to dwell upon the contention that this section is ineffectual to interpret the word 'larceny' to mean 'theft' in section 459"] with People v. Parson (2008) 44 Cal.4th 332, 354, 79 Cal.Rptr.3d 269, 187 P.3d 1 ["An intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction."].)


The verdict, which rejected defendant's intoxication defense, was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Defendant was convicted of two burglaries, based on <mask> incidents on different days in a store from which he had been barred by way of a trespass notice. There was ample evidence to refute defendant's defense, including videos of both crimes, as well as a video of defendant signing the trespass notice, in which he exhibited no signs of intoxication. Nevertheless, defendant claimed that at the time of the two burglaries, as well as at the time he received the trespass notice, his intoxication permitted him to appear to be functioning normally, but caused "blackouts" that prevented him from understanding that he was prohibited from entering the store, or forming the intent necessary for burglary. This claim was based on defendant's own testimony, which the jury was entitled to discredit, and it was not corroborated by the medical records he introduced or by anything else in the record.


*1204Because a person cannot commit burglary if he actually committed <mask>, a prosecutor who wishes to convict a defendant of burglary must prove that the defendant did not commit shoplifting. (See Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Italics added.) ]; Evid. Code, § 501 ["Insofar as any statute, except Section 522 [relating to insanity defense], assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096".]; § 1096 [the People have the burden of proving facts establishing a defendant's guilt beyond a reasonable doubt].) Evidence the defendant committed shoplifting disproves the elements of the charged commercial burglary. Under these circumstances, the court must instruct the jury the prosecution must disprove the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction. (Cf.


The following hypothetical illustrates this rule: If respondent and her coconspirators were secretly recorded by a police informant as they planned the commission of petty theft inside a department store and were apprehended by the police after committing an overt act but before entering the store, the crime of conspiracy would be complete. On the other hand, the People could not charge respondent with misdemeanor <mask> because it requires actual entry into the store. ( § 459.5, subd. (a) ; Gonzales , supra , 2 Cal.5th at p. 871, 216 Cal.Rptr.3d 285, 392 P.3d 437 [statute "defin[es] shoplifting as an entry into a business with an intent to steal, rather than as the taking itself"].)


Although the Attorney General acknowledges a person cannot be charged with and convicted of burglary when he or she actually committed <mask>, he argues that a person who commits shoplifting may simultaneously commit burglary. Section 459 provides that a "person who enters any ... room, ... with intent to commit grand or petit larceny or any felony is guilty of burglary." The Attorney General contends Proposition 47 "did not amend section 459's definition of burglary itself to add any additional elements." Consequently, to prove second degree burglary here, the Attorney General concludes the prosecution only needed to prove the elements of burglary under section 459. In other words, it did not have to disprove any elements *1203unique to shoplifting, such as that "the intended theft be of property valued at more than $950." We disagree.


The People amended the charges at the preliminary hearing to add the petty theft with a prior count, in addition to the <mask> charge. There was no objection by Lopez. The People contend Lopez has forfeited any challenge to the filing of the amended information and the additional charge of petty theft with a prior. Generally, a defendant's failure to object to an amended information forfeits his right to assert the error on appeal. ( People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057, 40 Cal.Rptr.3d 768 ; People v. Carbonie (1975) 48 Cal.App.3d 679, 691, 121 Cal.Rptr. 831 ; People v. Spencer (1972) 22 Cal.App.3d 786, 799-800, 99 Cal.Rptr. 681 ; People v. Collins (1963) 217 Cal.App.2d 310, 313, 31 Cal.Rptr. 587.)


I dissent. I would affirm the order granting respondent's petition to recall her felony sentence and resentence her to misdemeanor <mask>. Generally it is proper to charge felony conspiracy even if the underlying conduct is a misdemeanor. ( People v. Mullins (2018) 19 Cal.App.5th 594, 611-612, 228 Cal.Rptr.3d 198.) But this *517general rule is "subject to an exception in the case law which precludes the use of a conspiracy charge to elevate criminal conduct to felony status where there appears an 'affirmative legislative intent' to impose a lesser punishment or no punishment at all." ( People v. Pangelina (1981) 117 Cal.App.3d 414, 420, 172 Cal.Rptr. 661 [reversing judgment of conviction of conspiracy to commit prostitution].) Proposition 47 evinces an affirmative electoral intent to impose a lesser punishment for any conduct that could be charged as shoplifting. ( People v. Gonzales (2017) 2 Cal.5th 858, 876, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ) ["A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct"].)


This reading is consistent with People v. Martin (2018) 26 Cal.App.5th 825, 237 Cal.Rptr.3d 504, which addressed whether a defendant convicted of felony conspiracy to commit petty theft-based on conduct that unquestionably constituted <mask> under section 459.5-was eligible for resentencing after the enactment of Proposition 47. Construing section 459.5, Martin rejected the defendant's argument: "The statute does not say that a conspiracy to commit shoplifting shall be charged as simple shoplifting. Without such language, we cannot construe section 459.5 as prohibiting the charging of a conspiracy." (Id . at p. 835, 237 Cal.Rptr.3d 504.) Brown's reliance on section 490.4, which became effective on January 1, 2019, fares no better for the same reason. Section 490.4, which creates the new crime of "organized retail theft," nowhere prevents the prosecution from charging section 496 when the conduct at issue would also support a section 490.4 charge. (§ 490.4.)


E.P. argues "[b]ecause [he] committed an act of <mask>, he cannot also be prosecuted for the crimes of receiving stolen property. One cannot be convicted of both stealing and receiving the same property." (See § 459.5, subd. (b) ["[a]ny act of shoplifting ... shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property"]; § 496, subd. (a) [every person who conceals or withholds stolen property from the owner knowing the property is stolen commits a crime; a principal in the actual theft of the property may be convicted pursuant to this section but no person may be convicted both pursuant to this section and of the theft of the same property]; People v. Ceja (2010) 49 Cal.4th 1, 3, 108 Cal.Rptr.3d 568, 229 P.3d 995 [theft conviction operates as a bar to a receiving conviction].) The Attorney General concedes the point. We accept the concession and reverse the juvenile court's findings on counts 4, 5, and 6.


At the hearing on Osotonu's petition, the trial court denied the petition as to count 10, concluding that Osotonu's use of explosives to blow open an ATM in the middle of the night could not be recast as the lesser offense of <mask>, which is defined as "entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours ...." (§ 459.5.)


In 1992, the Legislature amended section 496, subdivision (a) to provide that "a principal in the actual theft of the property may be convicted pursuant to this section." (Stats. 1992, ch. 1146, § 1.) Then, in 2014, voters passed Proposition 47, which created section 459.5 (shoplifting) and also amended section 496 to require only misdemeanor punishment where "the value of the property does not exceed nine hundred fifty dollars ($950)." (§ 496, subd. (a).) If, as Brown suggests, Proposition 47 also barred prosecution under section 496 of a thief whose conduct in fact constituted <mask>, then surely the language of section 496 would have been amended accordingly. Instead, Proposition 47 left intact the language expressly permitting a prosecutor to charge a principal in the actual theft with violating section 496.


In Gonzales , the Supreme Court held that a second degree burglary conviction for entering a bank to cash a stolen check for less than $950 was subject to the crime of <mask> created by Proposition 47, section 459.5.3 ( Gonzales, supra , 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The question in Gonzales was whether section 459.5 applied to theft by false pretenses or was limited to theft by larceny. ( Gonzales , at p. 864, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The Supreme Court noted that cases consistently applied section 490a to the burglary statute, section 459, replacing section 459's use of the term "larceny" with the term "theft."4 ( Gonzales , at p. 867, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Although section 459.5 defined its crime as "shoplifting," section 490a applied to it as well. Section 459.5 referred to section 459 and used the term "larceny," indicating "the electorate intended 'larceny' to have the same meaning in both provisions." ( Gonzales , at p. 869, 216 Cal.Rptr.3d 285, 392 P.3d 437.) There were no exceptions to section 490a's provision that any statutory reference to larceny, embezzlement, or stealing shall be interpreted as referring to the term "theft." ( Gonzales , at p. 869, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Applying section 490a to section 459.5 was also "consistent with the electorate's stated reason for enacting Proposition 47. 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citation.]" ( Gonzales , at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


The trial court found that the term "shoplifting" in section 459.5 modified the statute's reference to the term "larceny" in defining the requisite criminal act. Since defendant's criminal conduct did not come within the common definition of <mask>, i.e., "[t]o steal (articles or an article) from a store that is open for business" (American Heritage College Dict. (4th ed. 2007) p. 1282, col. 2), the trial court concluded that it did not constitute the crime of shoplifting, rendering him ineligible for resentencing.


At common law, the crime of larceny contained an element of asportation or carrying away. Modern case law, however, places more emphasis upon intent and the exercise of dominion and control over the property. Thus, a person can be guilty of the theft of an automobile which has not moved (People v Alamo, 34 NY2d 453), or <mask> merchandise without leaving the store (People v Olivo, 52 NY2d 309).


In so ruling, it should be abundantly clear, this court is not requiring that the child testify at all. In that D. apparently alleges he and his father were “arrested” for <mask>, and possibly for speeding, the moving parties are free to call either store security personnel, or the police, to corroborate the child’s out-of-court statements. However, the father is also free to call the child as his witness, should he choose to put on a case, under the same conditions as discussed above. If the father calls D., he is reminded D. becomes his witness and will not be subject to cross-examination by him.


Jimenez involved a defendant who entered a check-cashing business and cashed *397two checks in his name, neither of which were issued to him. ( Jimenez , supra , 22 Cal.App.5th at pp. 1285-1286, 232 Cal.Rptr.3d 386, rev. granted.) He was convicted of two felony violations of section 530.5(a). ( Id. at p. 1286, 232 Cal.Rptr.3d 386.) Relying on Gonzales , the court in Jimenez concluded that the convictions were properly reduced to misdemeanor <mask> offenses under Proposition 47's enactment of section 459.5. ( Id. at p. 1285, 232 Cal.Rptr.3d 386.) Jimenez did not address whether the same offense would constitute petty theft under section 490.2. ( Id. at p. 1293, fn. 6, 232 Cal.Rptr.3d 386.) Because Jimenez addresses section 530.5 and reclassification under section 459.5, its holding is inapposite here.


reduced to misdemeanor <mask> (§ 459.5), and they agree that Jimenez compels us to reach the opposite conclusion as to defendant’s five convictions of violating section 530.5, subdivisions (a) and (c), which cannot be reduced to shoplifting or petty theft pursuant to Proposition 47. (Jimenez, supra, 9 Cal.5th at pp. 58–59.) 3 The parties dispute only whether Jimenez precludes the application of Proposition 47 to redesignate defendant’s misdemeanor mail theft conviction under section 530.5(e) as a misdemeanor petty theft conviction (§ 490.2). We conclude that Proposition 47 does apply to mail-theft convictions in circumstances such as those involved in this case, and that defendant’s mail theft conviction must be redesignated a petty theft conviction (§ 490.2). Background In an amended felony information, defendant was charged with, and subsequently convicted by a jury of, one count of violating section 530.5, subdivision (a) (unauthorized use of personal identifying information), four counts of violating section 530.5, subdivision (c)(2) (fraudulent possession of personal identifying information with a prior conviction), one count of violating section 530.5(e) (mail theft), and one count of violating section 459 (second degree commercial burglary). Defendant does not contest the sufficiency of the evidence to establish these offenses. She now disputes only the proper designation of one of the offenses in light of the statutory amendments made by Proposition 47. No evidence was introduced indicating


Section 218 of the General Business Law clearly was intended to reach the host of imaginative devices by which retail mercantile establishments are put upon, whether the method used is <mask>, use of stolen credit cards, issuance of worthless checks or other means. The elements that must be present to allow a defendant to invoke the statute are that the larceny take place in a retail mercantile establishment and that the object of the miscreant’s industry be merchandise.


Contrary to the Attorney General's contention, section 459.5 did amend section 459, as it expressly defined the new crime of <mask> "[n]otwithstanding section 459." The language of section 459.5 reflects the fact that the new crime of shoplifting consists of certain wrongful conduct which previously was second degree burglary. Stated differently, the "new crime of shoplifting ... displaces the prior felony of second degree burglary." ( People v. Chen (2016) 245 Cal.App.4th 322, 324, 199 Cal.Rptr.3d 375.) Thus, under the facts of this case, E.P. could not simultaneously commit shoplifting and second degree burglary.3


We recognize that the explosion of the ATM in this case is difficult to characterize as either nonserious or nonviolent. Indeed, Osotonu was also convicted and is serving time for use of a destructive device to destroy property (former § 12303.3; see § 18740) based on this underlying event. Here, however, we are solely concerned with whether Osotonu's second degree burglary conviction arising out of the same incident-sentencing for which was stayed pursuant to section 654-meets the statutory criteria for <mask>.


In August 2016, the juvenile court sustained the allegations of the petition. In rejecting E.P.'s challenge to the burglary charge, the court concluded the ice rink's locker rooms were not part of the commercial establishment and the crime of <mask> required the offender to steal from the business, not from private citizens. Consequently, the court declared E.P. a ward of the court, and placed him on probation.


Osotonu's reliance on People v. Bunyard (2017) 9 Cal.App.5th 1237, 215 Cal.Rptr.3d 628 is unavailing. Bunyard was convicted of second degree burglary after he used a screwdriver in an attempt to break into a coin-operated soap dispenser in a 24-hour commercial laundromat. ( Id. at pp. 1240, 1244, 215 Cal.Rptr.3d 628.) In denying the petition for resentencing, the trial court reasoned that defendant's conduct did not "comport with the commonsense meaning of '<mask>.' " ( Id. at pp. 1239-1240, 215 Cal.Rptr.3d 628.) The appellate court reversed, concluding that when the defendant entered the laundromat during its regular business hours with the intent to commit larceny by theft, he met the statutory definition of shoplifting. ( Id. at p. 1244, 215 Cal.Rptr.3d 628.) In making this determination, the court held that it did not matter whether the defendant "used a tool to effectuate the intended theft or force to attempt to break into the coin box." ( Ibid. ) Rather, it concluded that the electorate did not intend section 459.5 to cover "only the theft of merchandise or goods displayed for sale," opining: "It would make no sense to distinguish, for purposes of misdemeanor versus felony treatment, between the intended theft of merchandise worth $ 10 to $ 15 and the intended theft of coins worth $ 10 to $ 15, simply because the former is openly displayed and offered for sale and the latter is not." ( Id. at p. 1245, 215 Cal.Rptr.3d 628.) The court explained that expanding the scope of shoplifting beyond the so-called " 'five-finger discount' " furthered the "readily apparent" purpose of Proposition 47 "to lessen punishment for 'nonserious, nonviolent crimes like petty theft and drug possession ....' [Citation.]" ( Ibid. )


*564Were one to argue that section 490.2 does not apply because defendant did not in fact obtain the drugs he sought to obtain using an altered prescription, his offense would nonetheless constitute <mask> under section 459.5, subdivision (a), also added by Proposition 47. This section defines shoplifting 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" $950. As the Supreme Court emphasized in People v. Gonzales (2017) 2 Cal.5th 858, 869, 216 Cal.Rptr.3d 285, 392 P.3d 437, "Section 490a provides: 'Wherever any law or statute of this state refers to or mentions larceny, ... said law or statute shall hereafter be read and interpreted as if the word "theft" were substituted therefor.' " Subdivision (b) of section 459.5 provides that "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting." (Italics added.) "A defendant must be charged only with shoplifting when the statute applies." ( 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Section 1170.18 also specifies section 459.5 as one of the provisions in accordance with which resentencing should be granted.


On appeal, petitioner contends, respondent concedes, and we agree that a burglary with the intent to commit identity theft may meet the statutory definition of <mask> under Proposition 47. However, respondent argues that the court's summary denial of the petition was correct because petitioner did not meet his initial burden of proof. Respondent argues that a Proposition 47 petitioner has the initial burden of showing three things: (1) he did not intend to commit a theft of property exceeding $950, (2) he did not intend to commit a nontheft felony, and (3) the value of the stolen property did not exceed $950.


Far more compelling is defendant's argument that "categorically excluding petty thefts charged under Health and Safety Code section 11368 contradicts *565Proposition 47's explicit purpose of reducing prison spending and maximizing alternatives for nonserious and nonviolent crime."3 The electorate intended Proposition 47 to "reduce punishment for any theft of property worth less than $950 that could previously be charged as grand theft based on the type of property." ( People v. Romanowski, supra , 2 Cal.5th at p. 910, 215 Cal.Rptr.3d 758, 391 P.3d 633.) As the court pointed out in People v. Gonzales, supra, 2 Cal.5th at page 870, 216 Cal.Rptr.3d 285, 392 P.3d 437, " 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] The Act also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.' " As the court there stated with respect to the contention that larceny should be treated differently from other forms of theft, "[t]here is no indication that the electorate somehow viewed ... differently" obtaining a small amount of drugs by the use of an altered prescription from doing so by other means of petty theft or <mask>. ( Ibid . )


In November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. Proposition 47 added section 1170.18, which provides that any defendant currently "serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing." ( § 1170.18, subd. (a) ; see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) Pertinent to this case, Proposition 47 added section 459.5, which establishes the offense of <mask>, 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 *800hundred fifty dollars ($ 950)." (§ 459.5, subd. (a).) The statute further provides that "[a]ny other entry into a commercial establishment with intent to commit larceny is burglary." (Ibid. ; see People v. Rivera (2015) 233 Cal.App.4th 1085, 1091, 183 Cal.Rptr.3d 362.) Pursuant to section 459.5, shoplifting is punishable as a misdemeanor unless a defendant has previously been convicted of one or more specified offenses. (§ 459.5, subd. (a).)


In sum, the juvenile court erred in denying E.P.'s motion to dismiss the burglary count either on the ground that stealing from private citizens is outside the statutory definition of <mask> or on the ground that the locker room was not part of a commercial establishment. No other ground supports the court's denial. Accordingly, we reverse the juvenile court's order declaring E.P.'s offense a second degree burglary.


Hallam rejected the Attorney General's argument a "room within the business where the buying and selling of goods or services does not occur" could not be part of the "commercial establishment." ( Hallam, supra, 3 Cal.App.5th at p. 912, 207 Cal.Rptr.3d 812.) "Turning to the words of the statute here, we find no indication that <mask> can occur only in specific areas of a commercial establishment. Nor does there appear any requirement that the business's commercial activity must be taking place in the area from which the theft occurs in order to qualify the offense as shoplifting. The trial court thus added an element to the offense that is absent from the plain language of the statute itself when it determined that appellant's theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandise is sold. Based on its impermissible revision of the definition of shoplifting, the court concluded that the crime was burglary rather than shoplifting because appellant entered the store through the back and stole an item from the employee restroom rather than an area of the store that was 'open for business.' " ( Id. at p. 912, 207 Cal.Rptr.3d 812.)


The trial court granted Jimenez's motion over the People's objection. It stated that it had reviewed Gonzales , supra , 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437, and People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), and concluded that under the reasoning and holding of those two cases, the "[c]ourt's hands have been somewhat tied." The court explained: "It appears indicated that when there's conduct that results in the theft, which was here theft of property when it was used to derive on two separate instances money less than $950, the Court is mandated to reduce those to misdemeanors. Those are the rulings put forth by the Supreme Court." The court further stated: "And even though [this case] involves a different charge, it appears to be somewhat of a theft charge which was the focus of Gonzale [s ] and Romanowski .... And based on the Court's review of those two recent rulings, the Court feels it is obligated ... to grant the defense motion and reduce Count 1 and Count 2 to misdemeanors as it appears to be that conduct that has been described in Proposition 47 as a <mask> type of offense."


The People contend that defendant "was not eligible for Proposition 47 relief because her burglary offense is not 'shoplifting' under Penal Code section 495.5." We disagree with the People based on the plain language of the <mask> statute. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1123, 191 Cal.Rptr.3d 458, 354 P.3d 268 [in questions of statutory interpretation, courts "begin with the text" and "[i]f no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls"].)2


Section 1170.126 was enacted by voter initiative as part of the Three Strikes Reform Act, commonly referred to as "Proposition 36." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, p. 109.) The primary goal of Proposition 36, as explained to voters, was to "[r]estore the Three Strikes law [sections 667 and 1170.12] to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime" and to "[m]aintain that repeat offenders convicted of non-violent, non-serious crimes like <mask> and simple drug possession will receive twice the normal sentence instead of a life sentence." (Id. § 1, p. 105.) Specifically, Proposition 36 altered the Three Strikes sentencing scheme so that a recidivist felon would no longer be sentenced to an indeterminate life term for a third strike felony that was not defined as serious or violent, unless at least one other condition was pleaded and proved. Those other conditions included: (1) the current *575felony was a controlled substance charge involving large amounts of drugs; (2) the current felony was a specified type of sex offense; (3) the current felony involved the use of a firearm, was committed while armed, was intended to cause great bodily injury; or (4) a prior felony was especially egregious, such as murder, forcible sex offenses, sexual abuse of a child under 14, or any other felony punishable by life in prison or death. (§ 667, subd. (e)(2)(C)(i-iv).)


Proving a crime is not <mask> may be difficult in some circumstances, but such difficulty does not relieve the prosecution of its burden. Just as a factfinder must calculate the value of stolen property to determine whether a defendant committed a felony or misdemeanor theft crime under Proposition 47, so must the prosecutor evaluate the targeted property to determine whether the crime of shoplifting occurred. (See People v. Romanowski , supra , 2 Cal.5th at pp. 914, 915, 215 Cal.Rptr.3d 758, 391 P.3d 633 ["fact that stolen access card information is not sold legally does not relieve courts of ... duty" "to identify how much stolen access card information would sell for"].) Moreover, due to the prohibition against alternate charging in section 459.5, subdivision (b), the prosecution must determine whether the evidence supports charging the crime of shoplifting or burglary. Here, in charging E.P. with burglary rather than shoplifting, the prosecution apparently had no difficulty in gathering the evidence to determine whether it could prove the elements of a burglary or whether it should charge E.P. with shoplifting. Thus, it would not be onerous for the prosecution to produce that same evidence at trial. In sum, the prosecution had the burden of proving beyond a reasonable doubt that E.P. did not commit shoplifting.3


*390The trial court denied the petition. ( Ibid. ) The Court of Appeal reversed, rejecting the Attorney General's argument that because Garrett intended to commit felony identity theft ( § 530.5 ), section 459.5 did not apply. ( Garrett , at pp. 86-90, 203 Cal.Rptr.3d 369.) The court reasoned: "[E]ven assuming [Garrett] intended to commit felony identity theft, he could not have been charged with burglary under ... section 459 if the same act -- entering a store with the intent to purchase merchandise with a stolen credit card -- also constituted <mask> under [s]ection 459.5." ( Id. at p. 88, 203 Cal.Rptr.3d 369.) Based on this reasoning, the court held that the use of a stolen credit card to purchase merchandise valued at less than $950 constitutes shoplifting under section 459.5. ( Garrett, at p. 90, 203 Cal.Rptr.3d 369.)


The video surveillance footage involved in this case is believed to show the actual trip and fall and the surrounding circumstances. Many stores and enterprises set up video surveillance to reduce the number of thefts and <mask> by both employees and customers. The benefit of having a camera record the activities of customers and employees can be of value to the bottom line of a store’s or enterprises’ profitability.


The purpose of the preliminary hearing is to determine whether a defendant should be bound over for trial and on what charges he or she is to be tried. ( People v. Esmaili (2013) 213 Cal.App.4th 1449, 1459, 153 Cal.Rptr.3d 625.) The evidence at the preliminary hearing was that Lopez maintained he formed no intent to *134steal until after entering Walmart. If true, then the charge of <mask> would not lie as Lopez did not have the intent to commit larceny when he entered Walmart. (§ 459.5, subd. (a).) The prosecutor charged Lopez with shoplifting, the only charge that could be brought if he entered Walmart with the intent to commit larceny. The prosecutor also asked that Lopez be held to answer on a charge of petty theft with a prior, which does not require that Lopez have entered Walmart with the intent to commit larceny.


The New York Court of Appeals in the case of People v Kazmarick (52 NY2d 322, 327-328, supra) expressly ruled on defendant’s contention in the above regard as follows: “Defendant in an overly simplistic lumping of the two lines of cases argues from Samuels that the arrest warrant and accusatory instrument on the <mask> charge created a nonwaivable right to counsel and from Rogers that attachment of that right prevented interrogation on any other criminal matter. While the filing of an accusatory instrument triggers a right to counsel with respect to the charge made by the accusatory instrument, the right to counsel and representation by counsel are not the same thing. The fact that defendant Kazmarick may have been entitled to counsel on the shoplifting charge does not require, automatically and in all events, acting as though he was in fact represented by counsel and, therefore, protected even as to an unrelated charge. Simply put, the legal fiction of representation indulged by the Samuels line of cases is not tantamount to the actual or requested representation pro*52tected by the Rogers-Cunningham line. To accept the ‘strict liability’ rule for which defendant argues would tax. law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere, and unnecessarily and unrealistically limit police interrogation procedures (see People v Servidio, 77 AD2d 191; cf. People v Miller, 76 AD2d 576).”


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


<mask> is defined in section 459.5"as entering an open commercial establishment during regular business hours with the intent to commit 'larceny' of property worth $950 or less." ( Gonzales , supra , 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Section 459.5 does not distinguish between property belonging to a commercial establishment and property *895belonging to private citizens. The juvenile court's ruling that a person can commit shoplifting only if he or she intends to steal property from the commercial establishment erroneously adds an element not included within the statutory definition of shoplifting. Accordingly, the court erred in ruling that as a matter of law E.P.'s theft of property from private citizens could never be shoplifting. (See id . at p. 871, 216 Cal.Rptr.3d 285, 392 P.3d 437 [as defined in section 459.5, shoplifting is a "term of art, which must be understood as it is defined, not in its colloquial sense."]; People v. Bunyard (2017) 9 Cal.App.5th 1237, 1245, 215 Cal.Rptr.3d 628 [shoplifting as defined in section 459.5 not limited only to "theft of merchandise or goods displayed for sale"].) *1206Turning to the second basis for the juvenile court's denial of E.P.'s motion to dismiss, we conclude the ice rink's locker room was part of a commercial establishment within the meaning of section 459.5. In Hallam, supra, 3 Cal.App.5th 905, 207 Cal.Rptr.3d 812, the defendant entered a computer store during business hours and used the employee restroom with express permission. He then left the store, but reentered through the back door. He returned to the employee restroom and stole an air compressor worth $350. Observing that the employee restroom was not an area to which the public generally had access, the district attorney argued the defendant intended to steal an item that belonged to the store, but was not store merchandise.


Finally, I note that this court has accounted for the concerns I highlight above in its jurisprudence on Arkansas Rule of Evidence 608(b), creating a puzzling tension between two consecutive rules. Rule 608(b) concerns the introduction of instances of conduct "other than conviction of crime as provided in Rule 609" to demonstrate a witness's "character for truthfulness or untruthfulness." In Rhodes v. State , 276 Ark. 203, 634 S.W.2d 107 (1982), and subsequent cases, we have expressly limited Gustafson 's reach in the Rule 608(b) context. In Rhodes , we prohibited the introduction of past instances of <mask> that did not result in convictions, reasoning that "while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness." Id. at 210, 634 S.W.2d at 111. This results in an uneasy status quo. Theft resulting in a conviction is treated as per se dishonest, and it is therefore admissible under Rule 609(a). Acts of theft not resulting in conviction are not considered probative of truthfulness, and they are therefore not admissible under Rule 608(b). Clever lawyering might construct a compelling difference between truthfulness and honesty, but the apparent strain is more than a plain reading of the rules can comfortably bear.


Pertinent here, the Attorney General in Gonzales argued "it would be absurd for the <mask> statute to encompass any form of theft other than larceny of openly displayed merchandise ," otherwise, section 459.5 "would require a person to be prosecuted for shoplifting even if he enters a commercial establishment to commit a theft from an area of the store closed to the public, 'like a back office or a private locker room .... ' " ( Gonzales, supra , 2 Cal.5th at p. 873, 216 Cal.Rptr.3d 285, 392 P.3d 437, italics added.) The court observed this argument was "little more than a restatement of the rejected claim that the electorate intended to use 'shoplifting' in the colloquial sense." ( Id . at pp. 873-874, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The court explained if the voters had intended to limit the shoplifting statute to retail merchandise, "it could have done so by using language similar to that in section 490.5." ( Id . at p. 874, 216 Cal.Rptr.3d 285, 392 P.3d 437.)2


At 8:30 p.m. on Dec. 19, 1974, Police Officer Van Sykle and his partner Police Officer Malkom, dressed in civilian clothes and in an unmarked car, drove into a parking lot adjacent to a supermarket. The area was known for its criminal activity, which consisted of purse-snatching and <mask>, and there had been narcotics sales and robberies in the vicinity. The police officers observed a van parked in front and to the right of their car, in the middle of the lot. They watched this vehicle for approximately 20 minutes. During that period of time they saw two or three individuals at a time exit the van, walk to the fence of the lot and to the store and return to the van, all without ever entering the store.


To accomplish its goal of requiring misdemeanors for nonserious, nonviolent crimes like petty theft, Proposition 47 created a new misdemeanor crime of "<mask>," which covers conduct that previously would have been classified as a burglary. ( In re J.L. (2015) 242 Cal.App.4th 1108, 1112, 195 Cal.Rptr.3d 482. ( J.L. ).) Codified in section 459.5, this new crime is defined in subdivision (a) 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). Any other entry into a commercial establishment with intent to commit larceny is burglary." Subdivision (b) expressly limits the prosecutor's charging discretion: "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."


The Texas Department of Family and Protective Services removed R.A.G. and two other children from G.B.'s care after receiving a report that G.B., on December *64912, 2014, left the children unattended in a running vehicle while she went into a store where she was arrested for <mask>. She was also charged with three counts of endangering a child, a state jail felony.2 During the subsequent investigation, G.B. tested positive for cocaine. On May 8, 2015, the Department filed a petition requesting an order for G.B. to participate in services, and the trial court entered an order granting the petition. G.B. did not, however, participate in any services, including inpatient drug rehabilitation. The Department placed R.A.G. with his maternal aunt, S.O., and her husband on May 16, 2015.


In May of 1988, the Commissioner of the New York State Office of Mental Health brought a recommitment application pursuant to CPL 330.20 (14). In support of the application, Dr. Maurice Masse stated that S. was not compliant with his treatment. During the pendency of that application, S. continued his substance-induced violent behavior. On June 4, 1988, he was arrested and charged in New Jersey for <mask> and aggravated assault on a police officer. On July 27, 1988, he was arrested for driving while intoxicated. Then, at around midnight on November 2, 1989, S. threatened a bartender and patrons at Canastel’s restaurant, on the corner of 19th Street and Park Avenue South in Manhattan, with a 10-inch-long metal pipe wrapped in leather. Police Officer Daniel Pusateri encountered S. outside of the restaurant after he had been ejected but then tried to get back inside. Officer Pusateri asked S. to leave the area, but he refused and swung his arms around and yelled. As S. was being placed under arrest for disorderly conduct, he bit the officer on the hand. As a result, *9S. was charged with assault, resisting arrest, menacing and criminal possession of a weapon. On November 5, 1989 S. pleaded guilty to assault in the third degree and was sentenced to 30 days in jail.


We acknowledge that this result may seem harsh in Amack's case. Although the record contains little information about his previous aggravated-burglary conviction, Amack suggests that it was for <mask> from a Walmart. Depending on the facts of that crime, it could fall under K.S.A. 21-5807(e)—the exemption that the legislature added in 2016. So it is possible that what he did in 2010 would not be aggravated burglary under the law in effect when he committed the current crime of conviction. But that does not change our conclusion that applying the identical-or-narrower approach to


In contrast, "[i]n enacting the <mask> statute as part of Proposition 47, the electorate signaled that these interests do not apply in the same way when a person intends to steal property in a place where he or she has been invited to peruse the goods and services that are on offer. Store owners and employees do not, of course, consent to the theft of property. But the core of the crime of burglary is not theft but physical intrusion , and owners and employees have every reason to expect that members of the public will enter where they have been invited." ( Colbert, supra , 6 Cal.5th at p. 607, 242 Cal.Rptr.3d 665, 433 P.3d 536, second italics added.)


The Court of Appeal rejected the People's argument: "It follows under the plain text of the statute [ section 459.5 ] that prosecutors would have been required to charge her with <mask> and could not have charged her with burglary predicated on conspiracy had Proposition 47 been in effect at the time of her offense. She therefore qualifies to have her burglary conviction redesignated as misdemeanor shoplifting." ( Huerta , supra , 3 Cal.App.5th at p. 545, 207 Cal.Rptr.3d 637, fn. omitted.) The court observed: "Conspiracy played no role in the prosecution of Huerta. The People charged her with burglary, petty theft, and grand theft." ( Id . at p. 545, 207 Cal.Rptr.3d 637.)


In "The Law and Private Police” by Kakalik and Wildhorn (1977), the authors state (p 231): "The public function theory could well be found applicable to private security activities. Many private security activities such as arresting shoplifters and investigating crimes, are quite similar to the functions usually performed by public police * * * Furthermore, as happened in Terry v. Adams (345 U.S. 461), allowing security activities to be free from constitutional restrictions might be used by the state to avoid actions called for by various Supreme Court decisions, such as Miranda v. Arizona, requiring state police to inform a suspect of his basic constitutional rights * * * In sum, constitutional restrictions are generally not applicable to purely private security activities; state action is required. But, depending on the circumstances, state action may well be found inherent in some private police activities.” However, the argument that a private detective working for a merchant is given specific powers to detain persons suspected of <mask> and, therefore, is acting under color of State law has been rejected (see Warren v Cummings, 303 F Supp 803; Weyandt v Mason’s Stores, 279 F Supp 283). In Warren v Cummings (supra), the court finding that although the store detectives are given special privileges of detaining a shoplifter, stated (p 807), "There is not the slightest indication of state encouragement, participation or cooperation. Consequently, we see nothing in the nature of partnership with or agency of the state.”


Some section 459 offenses have been reclassified as misdemeanors under section 459.5, which was added to the Penal Code by Proposition 47. Section 459.5, subdivision (a) provides: "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)."


In McCullough v. Brodie (13 How. Pr. 346), the plaintiff sued the defendant for falsely representing that he had the secret of and the exclusive right to manufacture a certain kind of soap, upon which representation and the defendant’s promise to instruct him how to make the soap, the plaintiff bought the secret for a valuable consideration, and incurred great expenses in establishing a factory and in purchasing materials, whereby he incurred loss. He moved for a reference, alleging that the items of damage resulting from the establishing of the factory *286and the purchasing of materials would involve the examination of a long account, but his application was denied upon the ground thas this was not an account in the ordinary acceptation of the term, as the trial would not involve an enquiry in relation to payments made by either to, or property received by either from, the other. This was the court’s view of the species of account for which a reference would be ordered, and it applies to the present case. No such account exists here. The questions involved are fraud in the inception of the contract, and bad faith on the part of the plaintiff in the <mask> of the money entrusted to him by the company for the working of their mine, and it is the plaintiff’s right to have these questions tried by a jury. The order directing the reference should therefore be reversed.


The consignment of jewelry for purposes of sale at an agreed upon price is an ancient practice, and the conversion of such jewelry by unscrupulous consignees has always been regarded as larcenous. (See, e.g., Weyman v People, 4 Hun 511 [1st Dept 1875], affd 62 NY 623.) The theory of larceny generally applied has been <mask>, since the consignee is entrusted with possession of the property pursuant to an express agreement either to sell it and remit the proceeds or to return the unsold item to the owner. Such an agreement constitutes a bailment. (See, People v Hazard, 28 App Div 304 [1st Dept 1898], affd 158 NY 727.)


Vidana arose in the context of an employee charged with both larceny (§ 484, subd. (a) ) and <mask> (§ 503) arising from the same act of skimming cash from customer payments. ( Vidana , supra , 1 Cal.5th at p. 635, 206 Cal.Rptr.3d 556, 377 P.3d 805.) The court concluded larceny and embezzlement are merely "different statements of the same offense, and that a *690defendant may not be convicted of both based on the same course of conduct." ( Id. at p. 648, 206 Cal.Rptr.3d 556, 377 P.3d 805, fn. omitted.)


Although removal of a personal representative for <mask> or fraud clearly requires an affirmative showing of moral wrongdoing, and we assume intentional wrongdoing by an administrator will normally establish mismanagement, we must disagree with Feeney that all bases for removal set forth in former section 521 or current section 8502, subdivision (a), of the Probate Code require a showing of intentional wrongdoing. For example, the same list that includes mismanagement, fraud and embezzlement as causes *109for removal also includes waste. ( Prob. Code, § 8502, subd. (a) ; see Estate of Foreman (1969) 269 Cal.App.2d 180, 181-182, fn. 2, 74 Cal.Rptr. 699, quoting Prob. Code, former § 521.) Waste is defined as injury to the value of an inheritance through an unlawful act or through a simple omission of duty; it does not necessarily require a showing of malfeasance or bad faith. ( Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1211-1212, 122 Cal.Rptr.3d 417 ; 12 Witkin, Summary of Cal. Law (11th ed. 2017) Real Property, § 385, pp. 444-445 ; see Civ. Code, § 818.)


It is clear that subdivisions (2) (b) (acquiring lost property), (2) (c) (issuing bad check), (2) (d) (false promise), and (2) (e) (extortion) are inapplicable to this matter. The only possible subdivision applicable is (2) (a). That subdivision states that larceny may be committed, "By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, <mask>, or obtaining property by false pretenses”.


The Legislature had already provided that "Any person who is receiving an allowance from a public retirement system, who is charged by indictment or complaint, either in a court of this state or a federal court whose jurisdiction encompasses all or any portion of the state, with the commission of any felony involving or accepting or giving, or offering to give, any bribe, the <mask> of public money, extortion or theft of public money, perjury, or conspiracy to commit any of those crimes arising directly out of his or her official duties as a public officer, who has a legal obligation not to leave the jurisdiction of the court, but does leave, shall have his or her retirement allowance suspended while absent the jurisdiction of the court." (§ 1235, subd. (a), added by Stats, 1994, ch. 991, § 2.)


Yet respondents admit their failure to conduct even the most rudimentary background investigation upon any of these licensees’ most recent applications, which at minimum would have disclosed the prosecutions against Donovan and Fricione for <mask>, theft, and misapplication of DOE property associated with their bid rigging. This disclosure easily would have led to disclosure of the scheme in which all eight licensees were implicated, for which the Special Commissioner of Investigation or DOE recommended the termination from employment of seven, and based on which DOE removed the eighth, Katz, from his supervisory position. The misconduct by Lombardi, Mulvihill, and Schmeidel also precipitated their placement on a list of former employees ineligible for future employment. Even if nothing in any of these eight licensees’ applications on its face prompted an investigation, as respondents themselves point out, their own regulation, referring to the HPBOE license, requires that DCAS “or the investigating agency, as the case may be, shall conduct an investigation of each candidate to determine the candidate’s fitness and qualification for the license.” (55 RCNY 11-02 [h] [1] [emphasis added]; see verified answer ¶ 28.)


It is said in the dissenting opinion in the Court of Appeals in the case cited : “ Clearly, the statute never could have intended to convert a worthless debt into a demand, the payment of which might be enforced by making sureties liable who never intended or expected to assume any such obligation, and who were not understood to assume it at the time they became sureties.” True, this is said in the dissenting opinion; but the prevailing opinion contains nothing in hostility to this view. Indeed, it is in entire consonance with this remark. The injustice of holding the sureties liable in this case is obvious and serious, and it should not be permitted save under the pressure of absolute necessity. The defendants’ trouble here grows out of the express provision of the bond holding the sureties liable to absolute obedience by the executor to the order of the surrogate. (Schofield v. Churchill, 72 N. Y., 565; Thomson v. MacGregor, 81 N. Y., 592, on page 598.) Were the sureties here bound simply to fidelity on the part of the executor, the case would be widely different and without its present difficulty. Still we are inclined to the opinion that liability by the executor in this case for his own debt to the estate, as for money in hand, was not within the purview of the bond ; that such liability was not contemplated by those executing it, or, indeed, by the law pursuant to which it was required and given. Of course, we can but feel the force of the argument of the learned counsel for the appellant, fortified as it is by the numerous decisions cited *587by him. But, as we think, holding in mind the peculiar facts here certified to us, they are not directly in point, hence not conclusive of the question presented, and especially must we so conclude wheu we consider the strong intimation of the Court of Appeals, that the defendants might be entitled to their defense here interposed. We are of the opinion that the provision of the statute declaring that a debt due from an executor to the estate shall be treated, in the rendering of his account, as money in hand, must be construed with reference to the ordinary obligation, which imposed on him only diligent, faithful, honest action touching the administration of the estate committed to his charge. The Court of Appeals so held in effect by declaring that disobedience to the surrogate’s decree to the extent of his (Barr’s) own debt, would not here put him in contempt, or create against him a case of <mask>. His sureties did not, by their bond, guaranty the payment of his debt-to the estate, but only guaranteed obedience by the executors to all orders of the surrogate “ touching the administration of the estate committed to them.” Has not Barr answered this obligation fully on his part ? What was the estate committed to his charge as executor? Was it not whatsoever of money or property which, with due diligence and entire honesty, could be made available by him for the payment of debts and for distribution ? The debt of Barr was of no value. It did not go to enhance the estate in fact; really and in fact it contributed no valuable or available part of the “ estate committed to ” the executors. But the orders, observance of which by the executors were guaranteed by the defendant’s bond, were those made by the surrogate.“touching the administration” of such estate. In this view of the case a breach of the bond in suit was not established.


As enacted by Proposition 47, Section 490.2 neither redefines nor establishes a substantive theft offense. Instead, "theft" is defined in Penal Code section 484, subdivision (a), which provides: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or *468real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (See People v. Davis (1998) 19 Cal.4th 301, 304-305, 79 Cal.Rptr.2d 295, 965 P.2d 1165 [Pen.Code, § 484 consolidates several formerly distinct offenses into the single crime of theft, including larceny and theft by trick].) Penal Code section 490a, in turn, provides that any law referring to larceny, <mask>, or stealing is a theft offense. (Pen.Code, § 490a.)


The <mask> scheme that resulted in plaintiffs’ losses was devised by Robert Egan, the president and sole shareholder of MVMC, with the assistance of Bernard McGarry, MVMC’s chief operating officer. Egan and McGarry arranged to use their customers’ funds to finance MVMC’s business operations, commingling customer funds to help conceal their misappropriation of the stolen funds, a practice referred to by plaintiffs and by the prosecutor in the criminal prosecution of Egan and McGarry as “playing the float” (see United States v Egan, 811 F Supp 2d 829, 833 [SD NY 2011]).


Terms such as larceny, <mask>, and theft by false pretenses continue to have independent meaning in the law. (Vidana , supra , 1 Cal.5th at p. 644, 206 Cal.Rptr.3d 556, 377 P.3d 805 *678["[T]he 1927 amendment to section 484 did not repeal or cross-reference then existing embezzlement and false pretenses statutes. These embezzlement and false pretenses statutory schemes continue to be in effect today."].) Indeed, recognizing these independent meanings, the Legislature has continued to utilize the names of historical theft offenses in more modern statutes. (Id. at pp. 645-646, 206 Cal.Rptr.3d 556, 377 P.3d 805 [providing several examples].) The result from the consolidation of historical theft-related offenses and the concomitant enactment of section 490a, is *567that the use of the word larceny, embezzlement, or the like, can be seen as a way of describing a specific type of conduct that is criminalized by the theft statute-not necessarily as the invocation of each and every type of theft. (Vidana , supra , at p. 649, 206 Cal.Rptr.3d 556, 377 P.3d 805 ["Nor does the Legislature's continued use of the terms 'larceny' (or 'theft') and 'embezzlement' in various statutes transform larceny and embezzlement into different offenses. Rather, these terms are simply different ways of describing the behavior proscribed by those statutes."].)


Hpon the charge of the <mask>, the only defect of the testimony would be in some want of authority of the plaintiff to collect the moneys withheld by him (it being proved that he *310did withhold them), his right to retain them for his use, or disburse them for the defendant. Except the testimony of Mr. Hahn, there is no evidence in regard to such authority except the plaintiff’s and defendant’s. He states that the defendant once told him it was the same thing whether he paid his bills to himself or the plaintiff, who was his foreman; and again, that the latter did not come to his place of business because he was sick, and that he would have to give up the business unless he had a man who understood it. This was-three or four days after the plaintiff left, and the witness took his account of the money received by him to the defendant to procure a settlement. The testimony of the plaintiff and defendant is conflicting as to the authority of the former to receive and disburse the moneys of the latter. It is true the plaintiff is bound to establish a negative,—viz., want of probable cause,—but slighter evidence may do that than if he had to establish any affirmative. It is true the plaintiff’s character for truth and veracity was assailed, but it was sustained by about the same number of witnesses, and his credibility was a proper question for the jury, as well as the relative credit to be given to his own account and the defendant’s.


The administration of the retirement fund was in the hands of three partners of the defendants (Retirement Board) and for some time the plaintiff’s rights to his pension credit seem to have been held in abeyance. There is no evidence that at any time did he make a formal demand for payment. It was not until September, 1958 that the defendants learned that plaintiff had pleaded guilty to an indictment charging him with grand larceny in relation to a dealing with a customer of the defendants which did not involve <mask> from the firm. The plaintiff had been sentenced to a term in prison upon his plea. In October, the Retirement Board determined that the plaintiff had forfeited his interest because his services “ had been terminated as a result of his dishonesty, within the meaning of the Plan ”, because his failure to answer “ relevant questions ” was “ tantamount, under the Plan, to a voluntary leaving of the firm’s employ ’ ’, and because the plaintiff ‘ ‘ in failing and refusing to report to Ms employer after denial of his request for a leave of absence, had voluntarily left the firm’s employ, within the meaning of the Plan ”.