People v. Liu ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SI H. LIU,
Defendant and Appellant.
S248130
Second Appellate District, Division Eight
B279393
Los Angeles County Superior Court
GA090351
November 21, 2019
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
PEOPLE v. LIU
S248130
Opinion of the Court by Cuéllar, J.
We retread in this case ground recently traveled in People
v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). At issue
once more is how to assess the value of stolen access card
information — a term encompassing information related to
credit and debit cards, bank accounts, and similar financial
devices. (See Pen. Code, § 484e, subd. (d) (section 484e(d)); id.,
§ 484d, subd. (2).)1
What we concluded in Romanowski is that courts
conducting that analysis must do what they do in all theft cases:
figure out “how much [the stolen property] would sell for.”
(Romanowski, supra, 2 Cal.5th at p. 915.) Discerning that
amount is an endeavor that calls for some subtlety and may
depend on more than one factor. Further complicating the
inquiry in this context is the lack of a legal market for stolen
access card information. But instead of engaging in that
nuanced inquiry, the Court of Appeal here simply assumed that
the value of what the defendant obtained using the stolen
information sets a floor on the fair market value of the stolen
access card information she unlawfully used. Because the Court
of Appeal’s reasoning falls short of what Romanowski requires,
and because both parties agree that further factfinding is
1
All statutory references are to the Penal Code unless
otherwise noted.
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PEOPLE v. LIU
Opinion of the Court by Cuéllar, J.
necessary to resolve this case, we vacate the judgment and
remand.
I.
Defendant Si H. Liu advertised loan services in local
newspapers. Those offerings were a front for nefarious ends:
Liu was running a fraudulent scheme targeting immigrants in
the Los Angeles area. When unwitting readers sought help
obtaining financing, Liu asked them for sensitive documents
and information — such as driver’s licenses and social security
numbers — as well as credit and debit cards. She then went on
personal spending sprees, sometimes by surreptitiously opening
new lines of credit in her victims’ names, but most often by
simply charging purchases to their credit or debit card accounts.
All told, Liu fraudulently charged thousands of dollars.
The law eventually caught up with Liu. The People
charged her with nearly two dozen criminal counts related to
her fraudulent activities. Those charges included burglary,
unlawfully acquiring the personal identifying information of 10
or more people, and — most relevant here — theft of access card
information under section 484e(d). At trial, a jury convicted Liu
on all counts. The Court of Appeal reversed one of her
convictions but affirmed the rest. Five of Liu’s convictions for
theft of access card information under section 484e(d) were
among those upheld on appeal and they are at issue here.
In November 2014, while Liu’s direct appeal was pending,
California voters approved Proposition 47: The Safe
Neighborhoods and Schools Act. To decrease the number of
people in prison for nonviolent crimes, Proposition 47 reduced
the punishment prescribed by law for a wide swath of crimes in
California. Many offenses once punishable as felonies are now
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Opinion of the Court by Cuéllar, J.
treated as misdemeanors. Such crimes include, with a few
exceptions not relevant here, “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).”
(§ 490.2, subd. (a) (section 490.2(a)).) What’s more, Proposition
47’s changes apply not just to future offenders, but also to
certain people currently serving prison sentences for past
convictions. Someone who “would have been guilty of a
misdemeanor” if Proposition 47 had “been in effect at the time
of [his or her] offense” may seek relief. (§ 1170.18, subd. (a).)
Specifically, a person in that position may “petition for a recall
of sentence before the trial court that entered the judgment of
conviction in his or her case” and “request resentencing in
accordance with” Proposition 47’s changes. (§ 1170.18, subd. (a);
but see People v. Lara (2019) 6 Cal. 5th 1128, 1134 [those
sentenced after Proposition 47 are entitled, under the provisions
of that proposition, “to initial sentencing . . . and need not invoke
the resentencing procedure”].)
After the Court of Appeal issued its decision in Liu’s direct
appeal, Liu petitioned the trial court for Proposition 47 relief.
She sought resentencing on five of her convictions for theft of
access card information. Her petition, which she filed pro se,
argued that the value of the property she obtained was “not
more than $950.” After a brief hearing on Liu’s petition for
resentencing, the trial court denied the petition because Liu was
“not eligible” for relief. The court did not elaborate.
Liu appealed the trial court’s denial of her Proposition 47
petition. While that appeal was pending, we decided
Romanowski. What we concluded is that theft of access card
information under section 484e(d) qualifies as a “theft” offense
under section 490.2(a) — and that Proposition 47 therefore
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Opinion of the Court by Cuéllar, J.
reduced such thefts to misdemeanors where “ ‘the value of the
. . . property taken’ ” was less than $950. (Romanowski, supra,
2 Cal.5th at p. 917, quoting § 490.2(a).) The value of stolen
access card information, we continued, means the same thing as
it does for all theft offenses: “ ‘reasonable and fair market
value.’ ” (Romanowski, at p. 914, quoting § 484, subd. (a)
(section 484(a)).)
With the benefit of Romanowski, the Court of Appeal
affirmed in part and reversed in part the trial court’s pre-
Romanowski denial of Liu’s Proposition 47 petition. (People v.
Liu (2018) 21 Cal.App.5th 143, 153 (Liu).) The Court of Appeal
based its decision on the value of what Liu had obtained with
her victims’ access card information. (Id. at p. 149.) “Surely,”
the Court of Appeal explained, “stolen access card information
would sell for at least the value of the property obtained by a
defendant who used the information . . . .” (Ibid., italics added.)
Because the record established that Liu unlawfully obtained
more than $950 using what she stole in relation to three of her
convictions, the Court of Appeal affirmed the trial court’s denial
of Liu’s petition on those counts. (Ibid.) But because the same
could not be said for her other two convictions, the Court of
Appeal reversed and remanded for further proceedings on those
two counts. (Ibid.)
II.
We granted review to decide whether the Court of Appeal
properly applied our decision in Romanowski. We conclude that
it did not.
A.
Because theft of access card information in violation of
section 484e(d) is a theft offense under section 490.2(a), we held
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Opinion of the Court by Cuéllar, J.
in Romanowski that courts must value stolen access card
information just as they would any stolen property in a theft
case. They must determine “a reasonable approximation of the
stolen information’s value, rather than the value of what (if
anything) a defendant obtained using that information.”
(Romanowski, supra, 2 Cal.5th at p. 914.) That’s because the
value of property a defendant acquires using the illicitly
obtained access card information “is punished as a separate
crime” under section 484g. (Ibid.) Under that section, “the
value of all money, goods, services, and other things of value
obtained” by using stolen access card information determines
the severity of the offense. (§ 484g.)2
Yet the same is not true for the offense at issue in this case:
theft of access card information in violation of section 484e(d).
For that offense, courts must calculate “how much stolen access
card information would sell for” to determine whether it falls
above or below the $950 threshold.3 (Romanowski, supra, 2
Cal.5th at p. 915.) When performing this calculation, courts
must determine the value of the information at the time of the
“acqui[sition] or ret[ention]” of information on which criminal
liability is based. (§ 484e(d).) Someone seeking relief under
2
Besides being charged with the theft of access card
information, Liu was charged with and convicted of three counts
of grand theft by means of illegally obtained access card
information in violation of section 484g. The Court of Appeal
later reversed her conviction for one of those counts.
3
Our decision about a forgery statute in People v.
Franco (2018) 6 Cal.5th 433 does not affect our conclusion here.
This case — like Romanowski, but unlike Franco — is “a theft
case,” not a forgery case. (Franco, at p. 438.) So it is
Romanowski, not Franco, that governs.
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PEOPLE v. LIU
Opinion of the Court by Cuéllar, J.
Proposition 47, we concluded, bears the “ultimate burden” of
showing she is eligible to receive it. (Romanowski, supra, 2
Cal.5th at p. 916.)
In Romanowski we acknowledged the “potential difficulty
of putting a price on this property” (id. at p. 911) because the
“ ‘fair market value’ of stolen access card information,” traded in
illicit markets, “will not always be clear” (id. at p. 915). Unlike
everyday retail products such as shoes or electronics, or data
about human behavior harvested from the online activity of
consenting users, unlawfully obtained access card information
cannot be bought and sold legally. The utility of such
information for obtaining merchandise or services, moreover,
tends to be contingent rather than certain. As with the prize
money one may glean from an earlier purchased lottery ticket,
the ultimate worth of stolen access card information often
depends on facts not known at the time of acquisition. Access
card information can nonetheless be sold in illicit markets, and,
with disturbing frequency, it is. That there exists no lawful
market for this information, and often no clear sense of what it
will purchase or for how long, may complicate the calculation of
its fair market value. But as we held in Romanowski, any added
complication “does not relieve courts of th[e] duty” to make that
calculation. (Ibid.) To the contrary, “the possibility of illegal
sales” of access card information is a key factor in the analysis
— and one that warrants careful attention. (Ibid.)
The possibility of such sales — and ultimately, the value of
the stolen access card data — tends to be driven by multiple
factors. Consider the credit limit on a credit card or the account
balance on a debit card. Assuming the unwitting fraud victim
isn’t continuing to pay down the credit card balance or
replenishing the account balance, these values represent the
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Opinion of the Court by Cuéllar, J.
maximum amount someone possessing stolen access card
information could charge to (or withdraw from) the victim’s
account. The higher the credit limit (or account balance), the
more valuable the information — at least if the thief or potential
purchaser of the data knows the limit (or balance) when she
acquires the access card information. (See Stack, Here’s How
Much Your Personal Information Is Selling for on the Dark Web
(Dec. 6, 2017) (Experian) [as of November 19, 2019].)4
No matter how high the credit limit or account balance,
would-be purchasers are unlikely to pay much for stolen account
information unless they believe they can exploit it. So how
readily, if at all, stolen access card information can be used
matters. Someone will find it easier to make unauthorized
charges if she has not just the card number and expiration date,
but also the security code on the back (what’s sometimes called
a CVV2 code) and the card’s billing ZIP code. One might thus
place a premium on more detailed access card information, even
if the relevant credit limit (or account balance) is lower.
(Experian, supra; Franklin et al., An Inquiry into the Nature
and Causes of the Wealth of Internet Miscreants (2007) Online
Credentials and Sensitive Data, p. 11 (Franklin)

[as of November 19, 2019].)
But even such detailed information may not squelch fully
the perils inherent in buying stolen access card information.
4
All Internet citations in this opinion are archived by year,
docket number, and case name at
.
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Opinion of the Court by Cuéllar, J.
Such buyers bear the risk that their purchase will become — or
already is — useless. Stolen credit and debit cards often get
frozen or canceled, particularly when a cardholder or their
financial institution catches a whiff of fraud. The value of stolen
access card information may typically be discounted to account
for these risks. And by that same principle, freshly stolen access
card information may fetch a higher price than stale information
because it is more likely to be active. (Franklin, supra, at p. 11;
Ablon, et al. Markets for Cybercrime Tools and Stolen Data
(2014) p. 11 (RAND) [as of November 19, 2019].)
The dynamics of supply and demand matter for illegal
markets, too, just as they do for legal ones. (Experian, supra;
Franklin, supra, Inferring Global Statistics and Trends, at p.
12.) Suppose a hacker successfully attacks a major retailer and
then puts information related to thousands of access cards up
for sale online. The resulting supply glut may reduce (at least
for a time) the illegal market price of comparable stolen access
card information. (See RAND, supra, at p. 8.) In other words,
the value of stolen access card information depends in no small
part on how much comparable information is available on the
illegal market — and how many people are looking to buy it.
(See Black’s Law Dict. (10th ed. 2014) p. 1785 [describing a “fair
market value” as “the point at which supply and demand
intersect”].)
These factors don’t cover the waterfront of what a court
may consider in determining whether a defendant’s proposed
valuation of stolen access card information is objectively
reasonable. Nor do they encompass all of the methods useful in
discerning the value of stolen access card information. But they
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Opinion of the Court by Cuéllar, J.
demonstrate that the inquiry Romanowski requires for
determining the severity of a section 484e(d) offense —
assessing how much the stolen access card information in
question would sell for — is a nuanced endeavor.
The inquiry is nonetheless eminently feasible. Where the
facts otherwise presented to the trial court don’t already offer
some bearing on this question, the best place to start may be
consulting, perhaps with help from an expert witness, the
current trends in illicit markets for stolen access card
information and the prevailing price of illegally obtained
comparable information. (See Peretti, Data Breaches: What the
Underground World of “Carding” Reveals (2008) 25 Santa Clara
Computer & High Tech. L.J. 375, 381–389, 412 [describing
sophisticated online illegal market for stolen access card
information]; Franklin, supra, at p. 1 [similar]; cf. People v.
Tijerina (1969) 1 Cal. 3d 41, 45 [noting “that the price charged
by a retail store from which merchandise is stolen” is ordinarily
“sufficient to establish the value of the merchandise” because it
tends to “accurately reflect the value of the merchandise in the
retail market”].) Such an expert might help identify what
considerations are relevant to the fair market value analysis in
any given case.
B.
The Court of Appeal sought to apply Romanowski on the
thin record before it. But we conclude, as the parties agree, that
this case should be remanded to the trial court for further
factfinding in light of Romanowski and today’s decision.
1.
What little evidence the record contains about the value of
the access card information Liu stole consists of the amounts she
9
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Opinion of the Court by Cuéllar, J.
unlawfully charged to her victims’ accounts. We agree such
evidence may be considered — so long as it’s done “with the goal
of determining the [stolen access card information’s] fair market
value.” (Caretto v. Superior Court (2018) 28 Cal.App.5th 909,
920.) Evidence of unauthorized charges may tend to show that
someone could use the stolen information in question. And at
least if the ability to make such charges was knowable when a
defendant acquired the access card information, such charges
may offer a clue as to how much value could be extracted from
that information. Both facts could bear on the fair market value
of stolen access card information.
But evidence of unauthorized charges — while conceivably
relevant — does not, as the Court of Appeal assumed, set a floor
on how much someone would be willing to pay for it. (See Liu,
supra, 21 Cal.App.5th at p. 149.) That figure may be gleaned
from using a range of methods and involves various factors, such
as: (1) the access card’s credit limit or the account balance, if
knowable when the defendant engages in the acquisition or
retention of information that serves as the basis for criminal
liability under section 484e(d); (2) the amount of account
information possessed by the defendant; (3) how much the value
of the information has been diminished because of its sale in
illicit markets; (4) how recently the information was stolen; and
(5) the prevalence of comparable information on the illicit
market. The extent to which these factors (and others) are
relevant to calculating the fair market value of stolen access
card information in any given case is a factual question.
The Court of Appeal assumed that unauthorized charges
necessarily reflect the minimum fair market value of stolen
access card information. That alluring assumption may simplify
the inquiry. But it conflates the value of the access card
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Opinion of the Court by Cuéllar, J.
information itself with the value of the property obtained
through use of the stolen access card information. Whereas the
former is punished under section 484e(d), the latter, as we have
noted, “is punished as a separate crime” under section 484g.
(Romanowski, supra, 2 Cal.5th at p. 914.)
A hypothetical illustrates why the two values are not
bound, or even especially likely, to be identical. Consider a
defendant who maxes out a $10,000 credit limit using stolen
access card data. Does “common sense” tell us that someone
would have paid $10,000 for the stolen access card information
he used? (Liu, supra, 21 Cal.App.5th at p. 149.) Would-be
buyers in that situation might as well just hold on to their
$10,000 in cash. Or they could go out and buy (legitimately) the
$10,000 worth of goods they would have bought (fraudulently)
using the stolen access card information. There would be little,
if any, reason to go through the trouble of buying the stolen
access card information.
Inherent in the codified concept of a “reasonable and fair
market value” (§ 484(a)), moreover, is the notion that
comparable property is of comparable worth. But the Court of
Appeal’s insistence that the fair market value of stolen access
card information could be no lower than the value of the
property obtained by a defendant using that information risks
creating disparate valuations of similar stolen access card
information. Consider two more hypothetical defendants. One
is prudent and makes small purchases to avoid detection. The
other is daring and makes big purchases to maximize her
reward. Under the approach taken by the Court of Appeal, the
latter defendant would face a drastically higher floor on the fair
market value of the access card information she stole — even if
she stole precisely the same information as her more prudent
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PEOPLE v. LIU
Opinion of the Court by Cuéllar, J.
counterpart. So such a doctrinal shortcut risks results that are
irreconcilable with Romanowski.
2.
Having rejected the Court of Appeal’s reasoning, we must
now decide how to proceed with this case. On that question, the
parties agree. They ask us to remand for further factfinding
about the fair market value of the access card information Liu
stole with respect to all of her section 484e(d) convictions.
Indeed, the People concede it’s “impossible to determine”
whether the trial court concluded Liu was ineligible for relief
because it: (1) thought that, contrary to our later decision in
Romanowski, Proposition 47 didn’t apply to violations of
section 484e(d) at all; or (2) made a factual finding about the
value of the stolen access card information at issue here. If
anything, the People tell us, the record suggests the trial court
did the former — and thus did not determine “the access cards’
value, let alone [apply] the reasonable and fair market value test
mandated” by Romanowski.
We share the People’s impression about this record’s
inscrutability on the issue before us. The course suggested by
the parties is therefore the right one. The trial court has yet to
consider Liu’s petition in light of Romanowski, and has not
developed the record with an eye to making the factual findings
Romanowski demands. The trial court should get that chance.
We thus vacate the judgment of the Court of Appeal and remand
with instructions to direct the trial court to conduct that inquiry
in the first instance. (Cf. People v. Rodriguez (2018) 4 Cal.5th
1123, 1132–1133.) On remand, Liu bears the “ultimate burden”
of demonstrating, by a preponderance of the evidence, that she
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Opinion of the Court by Cuéllar, J.
is eligible for Proposition 47 relief. (Romanowski, supra,
2 Cal.5th at p. 916; Evid. Code, § 115.)
III.
In Romanowski, we required a straightforward, if
somewhat nuanced, analysis from courts assessing the
reasonable and fair market value of stolen access card
information. Courts must assess how much such information
would sell for, even though it cannot be sold legally. In
conducting that inquiry, the value of what a defendant obtained
using stolen access card information may be somewhat relevant.
But if so, it must be considered along with potentially more
probative pieces of the pricing puzzle, such as: (1) the access
card’s credit limit or the account balance, if knowable when the
defendant engages in the acquisition or retention of information
that serves as the basis for criminal liability under
section 484e(d); (2) the amount of account information possessed
by the defendant; (3) how much the value of the information has
been diminished because of its sale in illicit markets; (4) how
recently the information was stolen; and (5) the prevalence of
comparable information on the illicit market.
To allow for the proper valuation in this case, we vacate
the judgment of the Court of Appeal and remand with
instructions to send the case back to the trial court for further
factfinding as to the reasonable and fair market value of the
access card information at issue.
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PEOPLE v. LIU
Opinion of the Court by Cuéllar, J.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Liu
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 21 Cal.App.5th 143
Rehearing Granted
__________________________________________________________________________________
Opinion No. S248130
Date Filed: November 21, 2019
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Robert P. Applegate
__________________________________________________________________________________
Counsel:
David R. Greifinger, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven E. Mercer, Noah P. Hill, and Tita Ngyuen, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David R. Greifinger
Law Offices of David R. Greifinger
15515 West Sunset Boulevard, No. 214
Pacific Palisades, CA 90272
(424) 330-0193
Noah P. Hill
Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6082