Guilty Plea of Conspiracy to Commit Petty Theft Survives Appeal
Post number 5373
When You Plead Guilty be Ready to Go to Jail
Posted on June 16, 2026 by Barry Zalma
In The People v. Jacob Ossian Alberry, case number A173036, California Court of Appeals, First District, Fourth Division (June 2, 2026) Jacob Ossian Alberry and another person entered a Kohl’s store together, selected merchandise, and left without paying. The original complaint charged conspiracy to commit organized retail theft, organized retail theft, and petty theft.
After the preliminary hearing raised doubts about proof of an intent to sell, exchange, or return the merchandise for value, the prosecution dropped the organized retail theft counts and filed an information charging felony conspiracy to commit petty theft and misdemeanor petty theft.
Alberry later pleaded guilty to conspiracy to commit petty theft and appealed the denial of his section 995 motion.
LAW:
When a general criminal statute overlaps with a more specific statute covering the same conduct, courts in accord with In re Williamson (1954) 43 Cal.2d 651 (Williamson) may infer that the Legislature intended prosecution to proceed only under the specific statute. The rule does not apply when the statutes target different conduct or different kinds of culpability.
Conspiracy under Penal Code section 182 requires an agreement to commit a crime, while organized retail theft under section 490.4 requires acting in concert to steal merchandise with the intent to sell, exchange, or return it for value.
DISCUSSION:
Alberry argued that organized retail theft is the more specific statute and that a prosecution for conspiracy to commit petty theft was barred by Williamson because the same conduct commonly falls within section 490.4. The People responded that the two offenses are materially different because organized retail theft requires proof of theft for financial gain, whereas conspiracy to commit petty theft does not. The prosecution also emphasized that acting in concert is not the same as entering into a conspiratorial agreement.
ANALYSIS:
The Court of Appeal agreed with the People. It held that the Willliamson rule did not apply because the statutes reflect different legislative aims and different culpability requirements.
Organized retail theft was enacted to address coordinated theft for resale or other financial gain, a more specialized and sophisticated offense than conspiracy to commit petty theft. Here, the information did not allege facts establishing organized retail theft, particularly the required intent to sell, exchange, or return the merchandise for value.
The Court of Appeals concluded that Williamson rule does not apply to Alberry’s case because the Legislature intended conspiracy to commit petty theft and organized retail theft to be different crimes requiring different elements of proof. In the operative charging document, an information filed after a preliminary hearing, the prosecution did not allege any facts showing that Alberry could be convicted of organized retail theft. Nor are we persuaded that the prosecution was required to so allege.
Because the prosecution was not required to charge a crime the facts did not adequately support, it could proceed on conspiracy to commit petty theft.
CONCLUSION:
The court affirmed the judgment. It concluded that section 490.4 does not preempt prosecution for conspiracy to commit petty theft on these facts, so Alberry’s conviction stands.
Because the Williamson rule prohibits prosecution under a general statute when the conduct at issue is covered under a more specific statute, a necessary predicate to the application of the rule is that the defendant’s conduct fits the elements of the assertively more specific statute.
ZALMA OPINION
Petty theft is almost a legal crime in the state of California making the ability of a retailer like Kohl’s make a profit. Alberry and his friends overdid the retail theft and were arrested so that Alberry felt compelled to plead guilty and then sought to reverse his plea by arguing esoteric case law. It didn’t work and his conviction was affirmed.
The prosecution did not seek to convict Alberry of organized retail theft, nor make allegations sufficient to support such a charge. Therefore, Alberry failed to establish that the prosecution was required to do so. Accordingly, the Court of Appeals rejected Alberry’s argument that, under the Williamson rule, the Court of Appeals must reverse his conviction for conspiracy to commit petty theft. The judgment was affirmed.
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Post 4846
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