California courts are facing petitions for resentencing as a result of Proposition 47. The new law added Section 1170.18 to the Penal Code that allows anyone currently serving a sentence for a conviction of a felony to file a petition for a recall of sentence and request resentencing under certain conditions.


Prop 47 also added a new crime of shoplifting which it defines as “entering a commercial establishment with intent to commit larceny”. Confusion can arise, however, in the interpretation of the word ‘larceny’ as was the issue before the California appeals court.

Case of PP VS Fusting

Fusting was charged and sentenced for burglary after entering a plea of guilty. He later filed a petition for resentencing under Prop 47, alleging that his offense would have qualified as shoplifting, a misdemeanor, had Prop 47 been in force at the time.

The trial court denied Fusting’s petition because records showed that Fusting entered a building with intent to sell a stolen surfboard, a charge that the trial court considered as theft by false pretenses, rather than shoplifting. Fusting argued that the intent to commit ‘larceny’ that is required in shoplifting is wide enough to cover theft by false pretenses. The trial court was not persuaded and denied Fusting’s petition.

Court of Appeal Ruling

It is not disputed that the place where the theft took place was in a commercial establishment, that it was open for business, and that the value of the intended theft was less than $950. The only question before the court was whether theft by false pretenses can be considered as larceny, as defined in shoplifting.

Ruling in favor of the defendant, the appellate court said that ‘larceny’ in previous cases has been interpreted to include all thefts, including theft by false pretenses. The court also considered the purpose of Prop 47’s 1170.18, which is to require misdemeanors instead of felonies for non-serious and non-violent crimes such as petty theft and drug possession.

If you are facing a similar situation and would like to explore petition for resentencing, then consulting an experienced criminal defense attorney is important. Your attorney can examine your case, provide legal advice on your next steps, and prepare the pleadings required for a successful petition.

In Los Angeles, California, Kestenbaum Law Group has years of experience in criminal defense cases such as theft and all its other types. We work very hard to obtain favorable outcomes for our clients, including reducing charges or resentencing under Prop 47.

Call us today at (818) 616-4312 to discuss your situation with one of our accommodating attorneys.