Opinion
C081211
12-23-2016
THE PEOPLE, Plaintiff and Appellant, v. ROMEO LAMINERO, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFE20130007156 & SF124524A)
Defendant Romeo Laminero pleaded no contest to felony possessing an access card with intent to defraud (Pen. Code, § 484e, subd. (d)) and was placed on five years of formal probation. Defendant subsequently filed a section 1170.18 petition for resentencing. The trial court granted the petition over the People's objection, reduced the offense to a misdemeanor, denied probation, and sentenced defendant to 81 days in jail with 81 days of credit for time served.
Undesignated statutory references are to the Penal Code.
The People appeal, contending defendant's crime is not eligible for section 1170.18 resentencing. We shall reverse the trial court's orders.
STANDARD OF REVIEW
Because this court and the Central California Appellate Program were unable to contact defendant, defendant is not represented by counsel in this appeal and did not file a respondent's brief. California Rules of Court, rule 8.220(a)(2) states this court "may decide the appeal on the record, the opening brief, and any oral argument by the appellant." Nevertheless, the appellant bears the affirmative burden to show error whether or not the respondent's brief has been filed. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.) We examine the record and reverse only if prejudicial error is found. (Ibid.)
DISCUSSION
Section 1170.18, subdivision (a) provides: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ."
Section 1170.18 was enacted following the passage of Proposition 47 in 2014, which reduced many crimes from felony to misdemeanor. As pertinent to this case, Proposition 47 added section 490.2, which states in pertinent part: "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 . . . ." (§ 490.2, subd. (a).)
The People contend that defendant's conviction for possessing an access card with intent to defraud pursuant to section 484e, subdivision (d) is not eligible for section 1170.18 resentencing.
This issue is pending in the California Supreme Court. (See, e.g., People v. Thompson (2015) 243 Cal.App.4th 413, review granted March 9, 2016, S232212; People v. King (2015) 242 Cal.App.4th 1312, review granted Feb. 24, 2016, S231888; People v. Grayson (2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757; People v. Cuen (2015) 241 Cal.App.4th 1227, review granted Jan. 20, 2016, S231107; People v. Romanowski (2015) 242 Cal.App.4th 151, review granted Jan. 20, 2016, S231405.)
In interpreting a voter initiative "we apply the same principles that govern statutory construction" (People v. Rizo (2000) 22 Cal.4th 681, 685) and "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure. [Citation.]" (In re Littlefield (1993) 5 Cal.4th 122, 130.) " 'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.] At the same time, 'we do not consider . . . statutory language in isolation.' [Citation.] Instead, we 'examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.] Moreover, we ' "read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " ' [Citation.]" (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
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," subject to certain exceptions not relevant here. Under section 487, grand theft is committed when, absent certain exceptions, "the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)." (§ 487, subd. (a).) The exceptions are thefts of certain agricultural products exceeding $250, thefts from the person of another, and any theft of an automobile or firearm. (Id., subds. (b)-(d).) Thus, following Proposition 47, those thefts mentioned in section 487 are now all misdemeanors when the value of the property taken does not exceed $950.
Unlike sections 490.2 and 487, defendant's crime does not encompass the theft of property with a readily quantifiable value. Section 484e, subdivision (d) provides: "Every 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." (§ 484e, subd. (d).) "The crime is possession of access card account information with a fraudulent intent. It does not require that the information actually be used or that the account of an innocent consumer actually be charged or billed. [Citation.]" (People v. Molina (2004) 120 Cal.App.4th 507, 516.)
The fraudulent use of an access card to obtain something of value is a separate crime, subject to the same $950 distinction between grand and petty theft found in section 490.2. A defendant who uses another's access card to fraudulently obtain $950 or less worth of goods thus can be guilty of both petty theft under section 484g and grand theft under section 484e, subdivision (d). (See People v. Smith (1998) 64 Cal.App.4th 1458, 1471 [§ 484e, subd. (d) offense necessarily completed before the defendant committed an attempted violation of § 484g by entering the store and trying to use it].)
"Every person who, with the intent to defraud, (a) uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been altered, obtained, or retained in violation of Section 484e or 484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money, goods, services, or anything else of value by representing without the consent of the cardholder that he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If the value of all money, goods, services, and other things of value obtained in violation of this section exceeds nine hundred fifty dollars ($950) in any consecutive six-month period, then the same shall constitute grand theft." (§ 484g.) --------
Although it defines the crime as a form of grand theft, section 484e, subdivision (d) proscribes the unlawful possession of access card information. It "was intended to protect innocent consumers from the injury, expense and inconvenience arising from the fraudulent use of their access card account information." (People v. Molina, supra, 120 Cal.App.4th at p. 516.) This is not a crime covered by section 490.2 and section 487, the theft of property with a readily ascertainable value, such as money, other tangible items, or labor. We conclude that section 490.2 was not intended to cover section 484e, subdivision (d), and shall therefore reverse the trial court's order granting defendant's petition.
DISPOSITION
The trial court's orders granting defendant's resentencing petition and resentencing him to time served are reversed. The trial court is directed to enter orders reinstating defendant's felony conviction for acquiring an access card with intent to defraud and the previously imposed order of probation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Renner, J.