Fusting

This is another case dealing with the proper interpretation of newly created Penal Code section 459.5 regarding shoplifting. We are aware our Supreme Court has granted review in numerous cases including opinions on opposing interpretations of the statute. Ultimately our high court will provide guidance on the interpretation and application of the statute. In the interim, it is our obligation to make our best efforts to correctly interpret and apply the section.

The question presented by this appeal is whether a defendant must commit or intend to commit common law larceny at the time the person enters a commercial establishment during regular business hours. The parties do not dispute the building was a commercial establishment, that it was open for business, or that the value of the intended theft was less than $950.

In 2004, Michael Evan Fusting entered a guilty plea to one count of second degree burglary (§ 459).

Following the passage of Proposition 47 (§ 1170.18, the Safe Neighborhoods and Schools Act) in November 2014, Fusting petitioned to have his burglary conviction reduced to misdemeanor “shoplifting.” The court denied the petition because entry into a building…