People v. McCutchan

Full title: THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE McCUTCHAN, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Sep 18, 2017

G051920 (Cal. Ct. App. Sep. 18, 2017)

Opinion

G051920

09-18-2017

THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE McCUTCHAN, Defendant and Appellant.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

BEDSWORTH, ACTING P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF2366) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

In our first opinion in this case, we held the crime of unlawfully acquiring or retaining access card information (Pen. Code, § 484e, subd. (d)) is outside the scope of Proposition 47, and therefore the trial court properly denied appellant's petition to reduce her convictions for that offense from felonies to misdemeanors. (People v. McCutchan (June 7, 2016, G051920) [nonpub. opn.].) However, the Supreme Court granted review and then transferred the case back to us for reconsideration in light of its decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski).

In Romanowski, the Supreme Court held a felony conviction for unlawfully acquiring or retaining access card information may qualify for a reduction to a misdemeanor under Proposition 47 if it comes within the ambit of Penal Code section 490.2. That section, which was added to the Penal Code pursuant to Proposition 47, states "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[.]" (Pen. Code, § 490.2, subd. (a).)

The Romanowski court also determined, "As with any other theft that is punished based on the stolen property's value, 'the reasonable and fair market value shall be the test' for applying [Penal Code] section 490.2's $950 threshold. [Citation.] When stolen access card information lacks a legal market, moreover, courts may consider evidence concerning the potential for illicit sale of the access card information in order to determine its value." (Romanowski, supra, 2 Cal.5th at p. 917.)

In this case, the trial court never reached the factual issue of valuation because it determined, as a matter of law, the subject convictions did not qualify for a reduction under Proposition 47. Therefore, we agree with the parties that the matter must be remanded for a hearing on that issue. In particular, the trial court must decide whether the value of the access card information appellant stole was $950 or less, so as to make her eligible for relief pursuant to the initiative.

DISPOSITION

The trial court's order denying appellant's Proposition 47 petition is reversed, and the matter is remanded for an evidentiary hearing consistent with the Supreme Court's decision in Romanowski.

BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.