People v. Thompson
People v. Thompson
Opinion of the Court
*416Terrell Thompson appeals the denial of his resentencing petition pursuant to Penal Code section 1170.18.
FACTUAL AND PROCEDURAL SUMMARY
On August 6, 2011, after using her debit card to pay for gas at a Chevron station, Miriam Golf dropped it on the ground.
On December 11, 2014, Thompson petitioned to recall his sentence and for resentencing pursuant to section 1170.18. In opposition, the People argued *417that Thompson's underlying felony rendered him ineligible for relief. The court denied the petition, concluding that Thompson's conviction for 484e, subdivision (d) does not qualify for resentencing under section 1170.18. This timely appeal followed.
DISCUSSION
I
In November 2014, California voters enacted Proposition 47, which reclassified certain drug and theft-related offenses as misdemeanors. To effectuate these changes, Proposition 47 added several sections to the Penal Code, including section 490.2. Section 490.2, subdivision (a), provides that "[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor," unless one of the prior disqualifying convictions enumerated in the code applies.
Proposition 47 also "created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently *645serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (People v. Rivera (2015)
The issue before us is twofold. First, does section 490.2, subdivision (a) apply to a violation of section 484e, subdivision (d)? Second, if it applies, does the value of the access card account information exceed $950? We begin by recognizing that Proposition 47 case law is developing and there is a split of authority on these issues.
In interpreting a voter initiative, we apply the same principles governing statutory interpretation. (Robert L. v. Superior Court (2003)
The plain language of section 490.2, subdivision (a) unequivocally expresses an intention that Proposition 47 apply to all Penal Code sections defining "grand theft." In its introductory clause, section 490.2, subdivision (a) provides "[n]otwithstanding Section 487 or any other provision of law defining grand theft, " obtaining any property by theft where the value does not exceed $950 shall be punished as a misdemeanor. (Italics added.) In enacting section 484e, the Legislature defined the acquisition and retention of access card account information under subdivision (d) of that statute as "grand theft." (See People v. Molina (2004)
Two recent cases have concluded that section 484e, subdivision (d) does not fall *646within section 490.2, subdivision (a). In People v. Cuen (2015)
We disagree. Access cards and access card account information are personal property. Section 7 provides definitions for words and phrases used in the Penal Code and defines "personal property" as "includ[ing] money, goods, chattels, things in action, and evidences of debt." (§ 7, subd. 12.) This definition has been broadly interpreted. (See People v. Dolbeer (1963)
Here, appellant took a tangible item, a debit card containing access card account information. (See Emslie v. State Bar (1974)
We also decline to adopt the interpretation in People v. Cuen , that a specific grand theft Penal Code provision controls over section 490.2, subdivision (a). The rule is that a " 'statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering the general spectrum ... unless the later statute expressly contradicts the original act or unless that construction is absolutely necessary in order that all of the words of the later statute have any meaning at all.' [Citations.]" (Hughes Electronics Corp. v. Citibank Delaware (2004)
In People v. Grayson (2015)
It is for the Legislature to decide which crimes are grand theft, and it has done so in section 484e, subdivision (d), as it has in other related provisions. Section 490.2, subdivision (a) explicitly states, "[n]otwithstanding Section 487 or any other provision of law defining grand theft ." (Italics added.) The plain meaning of this introductory clause is that section 490.2, subdivision (a) was intended to apply to all grand theft provisions and not just section 487 offenses. The court's attempt to distinguish section 487 by reasoning that the language of section 487, subdivision (a) is similar to the language in section 490.2, subdivision (a) is unpersuasive. Section 490.2, subdivision (a) references section 487 generally and there are three subdivisions within section 487 where the offense is classified as grand theft without any reference to the value of the property taken: subdivision (c) defines grand theft as the taking of property from the person of another; subdivision (d)(1) defines grand theft as the taking of property when the property is an automobile; and subdivision (d)(2) defines grand theft as the taking of property when the property is a firearm. Additionally, there are five other grand theft provisions that are value based but not enumerated under section 490.2, subdivision (a) (§§ 487b, 487e, 487h, 487i, and 487j). And, if section 490.2, subdivision (a) were limited to grand theft offenses already defined by the value of the property taken, it would duplicate the many statutes already drawing a line between grand and petty theft based on the value of the property taken. (People v. Romanowski,supra, 242 Cal.App.4th at p. 157,
Looking beyond the initiative's plain language, its history also supports the conclusion that Proposition 47 was intended to apply to all grand theft statutes, not only to those that were specifically value based. (See People v. Birkett, supra, 21 Cal.4th at p. 243,
Second, the court in People v. Grayson, supra, 241 Cal.App.4th at pages 458-459,
If the intention were to exclude offenses under section 484e, subdivision (d), section 490.2, subdivision (a) could have been written so its introductory language was more narrow or included specified exceptions. (See Romanowski, supra, 242 Cal.App.4th at pp. 156-157,
Third, the court in People v . Grayson, supra, 241 Cal.App.4th at pages 459-460,
Finally, as we have discussed, the Legislature defined the acquisition and retention of access card account information with an intent to defraud as "grand theft." (§ 484e, subd. (d).) Thus, regardless of the "essence" of section 484e, subdivision (d), it defines a grand theft offense, and because section 490.2, subdivision (a) incorporates all "grand theft" provisions, without reference to specific statutes, it applies to section 484e, subdivision (d). (See People v. Hoffman (2015)
II
We next address whether the value of access card account information exceeds $950. Appellant argues that access card account information has slight value and *649minimal intrinsic value in that it can be used as a negotiable instrument. Respondent does not address the issue. Romanowski, supra, 242 Cal.App.4th at pp. 157-158,
We decline to follow the black market determination posed in Romanowski because of the evidentiary impracticability. The value of the access card itself is slight, only the intrinsic value of the plastic. (See People v. Caridis (1915)
An independent Penal Code provision, section 484g, prohibits the use of access card or access card account information with an intent to defraud and punishes such use as grand theft if the value of all money, goods, services, and other things of value acquired through use of the card or *423account information exceeds $950 in any six-month consecutive period. We note the apparent dissonance between sections 484e, subdivision (d) and 484g. Acquiring and retaining access card account information with an intent to defraud, before the passage of Proposition 47, was punished as grand theft, without regard to value, but using access card account information was punished as a misdemeanor, unless the value exceeded $950. In this case, had appellant been charged under section 484g, he would have been convicted of a misdemeanor because the value of the goods he obtained with the access card did not exceed $950.
We find that the value of access card account information is necessarily less than $950 because the intrinsic value of acquiring and retaining access card account information is minimal, unless used. This finding is consistent with the objectives of Proposition 47 and reconciles any dissonance between sections 484e, subdivision (d) and 484g. Furthermore, an individual who takes an access card or access card account information and uses it to purchase property that exceeds $950 can still be punished for grand theft under section 484g.
We conclude appellant is eligible for resentencing under section 1170.18 because, under Proposition 47, his conviction has been reclassified as a misdemeanor. Remand is required because the trial court did not reach the issue of whether resentencing appellant would pose an unreasonable risk of danger pursuant to section 1170.18, subdivision (b).
DISPOSITION
The order is reversed and the case remanded for further proceedings consistent with this opinion.
I concur:
COLLINS, J.
WILLHITE, J.
I respectfully dissent.
*650In considering whether Penal Code section 490.2, subdivision (a)
In light of the proliferation of decisions on this issue, there is little for this dissent to add. While I agree with the holdings of Cuen,Grayson and King , I only briefly supplement their reasoning to discuss one point regarding the plain meaning of section 490.2, subdivision (a), that has perhaps not been fully considered in those decisions or by my colleagues here.
Section 490.2, subdivision (a) provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor...."
Though section 490.2, subdivision (a) generally declares that it applies regardless of other statutes defining grand theft, it also reduces grand theft to petty theft only if the crime involves "obtaining any property by theft," and "the value of the ... property taken" is $950 or less. By its plain meaning, *425this language presupposes that the grand theft to be reduced is in one in which the offender has, in some form, *651committed a taking of property by theft. That is the most reasonable interpretation of the provision's reference to the offender's "obtaining any property by theft" and its reference to property that has been "taken."
But this presupposition creates an anomaly when applied to section 484e, subdivision (d), because while one can violate that statute by a taking, the statute does not require it. Rather, the statute defines a hybrid form of grand theft-one that can be committed when a person "acquires ... access card account information" with fraudulent intent (conduct equivalent to a taking by theft),
This is, perhaps, a fine distinction. But such is the nature of attempting to divine the intent of the voters from the entirety of the relevant language of section 490.2, subdivision (a). And the plain meaning of that language as applied to section 484d, subdivision (e) creates an anomaly: an offender who is proven to have acquired access card account information with fraudulent intent is guilty of a misdemeanor (assuming the value of the information is information is $950 or less), but the offender who is proven to have only retained possession of such information with fraudulent intent, regardless of how or when it was obtained, and regardless of the value, is guilty of a felony. Obviously, this dichotomy could not have been the intent of Proposition 47.
*426I would resolve this dichotomy by holding, as did the courts in Cuen, Grayson and King, that neither the language nor the intent of section 490.2 subdivision (a) applies to section 484e, subdivision (d).
All further statutory references are to the Penal Code.
Both parties reference the probation report for these facts.
Section 484e, subdivision (d) provides that "[e]very person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft."
Some section 459 offenses have been reclassified as misdemeanors under section 459.5, which was added to the Penal Code by Proposition 47. Section 459.5, subdivision (a) provides: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)."
All undesignated section references are to the Penal Code.
It provides in full: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
The common meaning of "obtain" is "to gain or attain usually by planned action or effort." (http://www.merriam-webster.com/dictionary/obtain.) "Take," of which "taken" is the past participle, commonly means "to get into one's hands or into one's possession, power, or control," or "to seize or capture physically." (http://www.merriam-webster.com/dictionary/take.)
The common meaning of "acquire" is "to get as one's own," or "to come into possession or control of often by unspecified means." (http://www.merriam-webster.com/dictionary/acquire.)
The common meaning of "retain" is "to keep in possession or use." (http://www.merriam-webster.com/dictionary/retain.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.