Opinion
S250829
11-27-2018
PEOPLE v. LOPEZ (ANTHONY)
F074581 Fifth Appellate District
Supplemental briefing ordered
In addition to the issues stated in the order granting review filed on November 20, 2018, the parties are directed to brief the following additional issues. In briefing these issues, the parties are to assume, solely for the sake of argument, and without prejudice to any contrary argument, that Penal Code section 459.5, subdivision (b), prohibits the prosecution from charging both shoplifting and theft of the same property under any circumstances.
(1) Did defendant forfeit the argument under Penal Code section 459.5 by failing to object to the prosecution's charging both shoplifting and theft?
(2) If defendant had objected, what should the trial court's ruling have been? Might it have ordered the prosecution to choose between a shoplifting charge and a theft charge? If so, and given the potential difficulty in proving the intent required for shoplifting, might the prosecution have chosen to charge only petty theft with a prior? In that event, would defendant have been prejudiced by the failure to object?
(3) Was petty theft with a prior a lesser included offense of shoplifting under the accusatory pleading test? If so, could the trial court have instructed the jury on shoplifting as the charged offense and on petty theft as a lesser included offense? (See People v. Reed (2006) 38 Cal.4th 1224, 1227-1231.) If not, and assuming defendant had objected to charging both crimes, could the prosecution have moved to amend the charging document to make the theft charge a lesser included offense of shoplifting under the accusatory pleading test? If that had occurred, could the trial court have instructed on shoplifting as the charged offense and on petty theft as a lesser included offense? In that event, would defendant have been prejudiced by the failure to object?