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Felony Burglars Could Be Mere Shoplifters, Thanks to Prop 47

By Jonathan R. Tung, Esq. on July 14, 2016 | Last updated on March 21, 2019

A man who was convicted for second degree burglary in California successfully convinced a California Court of Appeal that stealing by false pretenses was a form of shoplifting, thus falling under the umbrella of reduced sentences under Prop 47.

It could be one of the first cases in a very long time in which a defendant wanted to be branded a thief.

Prop. 47 and Stolen Surf Boards

The case involves the application of California's Prop 47, a California law that was passed in late 2014 that reduces sentences for a host of non-violent felonies and also requires a misdemeanor sentencing for petty theft crimes.

In the case at bar, Michael Fusting appealed his second-degree burglary conviction and sought to have it reduced to a misdemeanor shoplifting charge under Prop 47. Fusting had been caught after he'd walked into a store with the intent of fencing a stolen surf-board. The state prosecuted him under penal code 459.5, burglary. In California, a burglary charge can be sustained on petty theft or shoplifting charge -- a much lesser crime than the typical felony.

The state argued that Fusting did not shoplift when he entered into the store because at the time, he did not intend to commit a larceny in a more traditional sense, i.e., walking into a store and walking out with un-paid property. Fusting attempted theft by false pretenses, not by larceny, the state argued, by selling a surfboard that was stolen.

Court of Appeals

But the Court of Appeal for the Fourth Appellate District rejected this theory and argued that the larceny requirement of Prop 47's shoplifting offense could be satisfied by a "broader" intent to commit theft -- one that included theft by false pretenses." That means that, under Prop 47's resentencing provisions, Fusting could petition to be resentenced for misdemeanor shoplifting.

"Not only is this consistent with prior case law regarding the interpretation of the term 'larceny' as used in section 459," the court wrote, "but it is also consistent with the voters' intent in passing Proposition 47."

The case was remanded back to the lower court with order to grant Fusting's resentencing petition.

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