People v. Jimenez ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Appellant,
v.
MIGUEL ANGEL JIMENEZ,
Defendant and Respondent.
S249397
Second Appellate District, Division Six
B283858
Ventura County Superior Court
2016041618
March 2, 2020
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. JIMENEZ
S249397
Opinion of the Court by Cuéllar, J.
Consumers today entrust businesses with more personal
data than ever before. Residing on remote servers and secured
by protocols of varying strength, that trove of data is
increasingly susceptible to breach and misuse. (See generally
Douglas, 2020 Identity Theft Statistics (January 2020)
Consumer Affairs [as of Mar. 2, 2020].)1
Like many states, California criminalizes not only the nefarious
ends enabled by information misuse — credit card fraud, for
instance, and tax fraud — but also the act of using personal
identifying information without authorization. (Pen. Code, §
530.5, subd. (a).)2 That distinction matters in this case.
What we must decide here is whether a felony conviction
for misuse of personal identifying information under section
530.5, subdivision (a) can be reduced to misdemeanor
shoplifting under Proposition 47, which was approved by voters
in the November 4, 2014 General Election. We hold that it
cannot. Proposition 47 added section 459.5 to the Penal Code,
which dictates that an “act of shoplifting . . . shall be charged as
shoplifting,” and that “[n]o person who is charged with
1
All Internet citations in this opinion are archived by year,
docket number and case name at
.
2
All further unlabeled statutory references are to the Penal
Code.
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shoplifting may also be charged with burglary or theft of the
same property.” (§ 459.5, subd. (b).) Its prohibition applies only
to “burglary or theft” offenses. (Ibid.) Although misuse of
identifying information is sometimes colloquially described as
“identity theft,” the language, context, and history of section
530.5, subdivision (a) tells us no “burglary or theft” offense is
committed by virtue of a defendant violating that statute.
Reaching the opposite conclusion, the Court of Appeal
below in People v. Jimenez (2018) 22 Cal.App.5th 1282 (Jimenez)
relied on the similarity between defendant’s conduct here —
cashing a false check — and the conduct of the defendant in
People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). What we
held in Gonzales is that a burglary conviction based on conduct
meeting the requirements for shoplifting under section 459.5
could be reduced to shoplifting under Proposition 47. (Gonzales,
supra, 2 Cal.5th at p. 862.) Our holding gave effect to section
459.5, subdivision (b), which provides that a person who
commits “[a]ny act of shoplifting” cannot “be charged with
burglary or theft of the same property.” (Italics added.) But
Jimenez was not charged with burglary, and in any event, our
inquiry here is not whether Jimenez’s conduct could conceivably
be called “shoplifting.” We must address instead whether the
public offense defined in section 530.5, subdivision (a), of which
he was convicted, qualifies as a “theft” offense under section
459.5, subdivision (b).
It does not. Section 530.5 criminalizes the willful use of
someone’s personal identifying information for an unlawful
purpose, not an unlawful taking. It is not a theft offense because
criminal liability pivots on how the information was used rather
than how it was acquired. The offense therefore evinces a
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Opinion of the Court by Cuéllar, J.
concern with the panoply of harms occurring when personal
information is no longer personal.
A conviction for misuse of identifying information is not
subject to reclassification as misdemeanor shoplifting. Because
the Court of Appeal held otherwise, we reverse its judgment and
remand.
I.
In June 2016, defendant Miguel Angel Jimenez twice
entered Loans Plus, a commercial check-cashing store in
Oxnard, to cash a check from OuterWall, Inc., made payable to
himself. The first check sought $632.47, and the second,
$596.60. Each contained OuterWall’s personal identifying
information in the form of an account number. On both
occasions, Loans Plus was open for business. And on both
occasions, OuterWall had not issued the checks in Jimenez’s
name, nor did Jimenez have permission to possess, issue, or use
the checks.
The People charged Jimenez with two felony counts of
misusing personal identifying information in violation of section
530.5, subdivision (a) –– an offense the prosecution informally
calls “misuse of identity” and the defendant colloquially terms
“identity theft.” That section prohibits “willfully obtain[ing]
personal identifying information” of another person “and us[ing]
that information for any unlawful purpose, including to obtain,
or attempt to obtain, credit, goods, services, real property, or
medical information without the consent of that person.”
(§ 530.5, subd. (a).) The jury instructions provided the unlawful
purpose for which Jimenez used OuterWall’s account
information: “unlawfully obtaining or attempting to obtain
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Opinion of the Court by Cuéllar, J.
money in the form of cash in exchange for a presented check
without the consent of the other person.” The jury convicted
Jimenez of both counts.
In May 2017, Jimenez moved to reclassify his felony
convictions to misdemeanors under Proposition 47: The Safe
Neighborhoods and Schools Act. To decrease the number of
people in prison for nonviolent crimes, Proposition 47
reclassified certain drug- and theft-related offenses from
felonies or “wobblers” to misdemeanors. It did this by amending
the statutes that defined those crimes and redefining the way
terms are understood throughout the Penal Code. (See Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 8, p. 72 (Voter Information Guide) [adding, for instance,
§ 490.2 to lower the punishment for certain categories of grand
theft “[n]otwithstanding . . . any other provision of law defining
grand theft”].)
One such amendment enshrined in California law a new
misdemeanor shoplifting offense. (§ 459.5.) Distinct from felony
burglary based on the value of the goods, the structure entered,
and the time of entry, the new shoplifting offense prohibits
entering a commercial establishment “with intent to commit
larceny” while the establishment is open during business hours,
and where the value of the property taken or intended to be
taken is $950 or less. (§ 459.5, subd. (a).) Also affecting the
scope of this new offense is the following limitation: Any act of
shoplifting “shall be charged as shoplifting,” and, “[n]o person
who is charged with shoplifting may also be charged with
burglary or theft of the same property.” (Id., subd. (b).)
Jimenez made the case for relief relying on our recent
opinion in Gonzales, supra, 2 Cal.5th at page 862, in which we
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held that the shoplifting statute applied to an entry with intent
to commit nonlarcenous theft. Like Jimenez, the defendant in
Gonzales had entered a commercial establishment and cashed
two checks containing another person’s bank account
information. (Ibid.) Because Jimenez committed essentially the
same conduct as Gonzales, Jimenez argued his conduct, too,
constituted misdemeanor shoplifting under section 459.5,
subdivision (a). The trial court granted Jimenez’s motion. It
concluded that between Gonzales and our earlier opinion in
People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), its
“ ‘hands ha[d] been somewhat tied.’ ” (Jimenez, supra, 22
Cal.App.5th at p. 1286.) What we held in Romanowski is that
theft of access card information could be reduced to a
misdemeanor under another provision of Proposition 47,
codified at Penal Code section 490.2. (Romanowski, supra, 2
Cal.5th at pp. 905–906.) Romanowski and Gonzales, the court
said, mandated reduction of “ ‘conduct that has been described
in Proposition 47 as a shoplifting type of offense.’ ” (Jimenez, at
p. 1286.) “ ‘And even though [this case] involves a different
charge,’ it observed, ‘it appears to be somewhat of a theft charge
which was the focus of Gonzale[s] and Romanowski.’ ” (Ibid.)
The People appealed the trial court’s decision to reduce
Jimenez’s conviction, and the Court of Appeal affirmed,
reasoning that Jimenez’s criminal conduct is “identical to
Gonzales’s conduct.” (Jimenez, supra, 22 Cal.App.5th at
p. 1289.) It observed that “both entered a commercial
establishment during business hours for the purpose of cashing
stolen checks valued at less than $950 each. Both defendants
[entered with intent to commit] ‘theft by false pretenses,’ which
‘now constitutes shoplifting under [section 459.5, subdivision
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(a)].’ ” (Ibid., quoting Gonzales, supra, 2 Cal.5th at p. 862.) And,
the court explained, where a defendant’s “underlying conduct
constituted shoplifting,” the preclusive effect of section 459.5,
subdivision (b) — which provides that “[a]ny act of shoplifting
as defined in subdivision (a) shall be charged as shoplifting”
(§ 459.5, subd. (b)) — barred a charge of identity theft. (Jimenez,
supra, 22 Cal.App.5th at p. 1291.) In sum, the court said, “[t]hat
Jimenez committed identity theft in the course of the shoplifting
does not alter the fact that he committed shoplifting.” (Id. at p.
1290.)
The District Attorney filed a petition for review. We
granted review to determine whether a felony conviction for
misuse of personal identifying information can be reduced to
misdemeanor shoplifting under Proposition 47.
II.
As with most cases arising from Proposition 47, this one
requires that we understand the interaction between a statutory
scheme enacted by the Legislature and one enacted by the
public. Because the scope of these statutory schemes is a
question of law, we review de novo the Court of Appeal’s
interpretation of both the shoplifting statute enacted through
Proposition 47 and the preexisting section 530.5, subdivision (a),
of which Jimenez was convicted. (Apple Inc. v. Superior Court
(2013) 56 Cal.4th 128, 135.) We look first to “ ‘the language of
the statute, affording the words their ordinary and usual
meaning and viewing them in their statutory context.’ ” (People
v. Gonzales (2018) 6 Cal.5th 44, 49–50.) We must construe
statutory language in context, bearing in mind the statutory
purpose, and giving effect to the intended purpose of an
initiative’s provisions. (Id. at p. 50; see California Cannabis
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Coalition v. City of Upland (2017) 3 Cal.5th 924, 933 [explaining
that our “primary concern is giving effect to the intended
purpose of the provisions at issue”].) We may also consider
extrinsic sources, “such as an initiative’s election materials, to
glean the electorate’s intended purpose.” (People v. Gonzales,
supra, 6 Cal.5th at p. 50; Larkin v. Workers’ Comp. Appeals Bd.
(2015) 62 Cal.4th 152, 158 [“[W]e may look to various extrinsic
sources . . . to assist us in gleaning the [voters’] intended
purpose”].)
Applying these principles, we conclude that section 459.5
does not encompass misuse of identifying information. The
preclusive language of section 459.5, subdivision (b) — that
“[a]ny act of shoplifting as defined in subdivision (a) shall be
charged as shoplifting,” and “[n]o person who is charged with
shoplifting may also be charged with theft or burglary of the
same property” — applies only as to theft or burglary offenses.
Section 530.5, subdivision (a) does not define such an offense.
A.
We first consider the statutory scheme approved by voters
five years ago. The misdemeanor shoplifting statute under
which Jimenez seeks a reduction is section 459.5. It is one of
two new theft crimes reflecting the electorate’s decision to
downgrade certain felonies; the other is section 490.2, which
defines petty theft. (Romanowski, supra, 2 Cal.5th at p. 907.)
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).” Subdivision (b)
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next provides the preclusive language on which Jimenez
primarily relies: “Any act of shoplifting as defined in
subdivision (a) shall be charged as shoplifting. No person who
is charged with shoplifting may also be charged with burglary
or theft of the same property.” (Id., subd. (b).)
We granted review to determine whether Jimenez can
secure relief under section 1170.18, subdivision (a), which
allows defendants “serving a sentence for a conviction . . . of a
felony or felonies” on Proposition 47’s effective date of
November 5, 2014, to petition to reclassify their eligible felony
offenses to misdemeanor shoplifting. (§ 1170.18, subd. (a), added
by Prop. 47, § 14; People v. Martinez (2018) 4 Cal.5th 647, 654
(Martinez).) But Jimenez was not a person “serving a sentence”
for his conviction on November 5, 2014. Indeed, he did not even
commit the relevant crime until 2016. He is ineligible for relief
under section 1170.18. Jimenez, however, is not out of luck. We
have previously held that “[d]efendants who had not yet been
sentenced as of Proposition 47’s effective date are entitled to
initial sentencing under Proposition 47’s amended penalty
provisions.” (People v. Lara (2019) 6 Cal.5th 1128, 1131.) This
seems the more appropriate framework for Jimenez, who was
neither sentenced nor convicted as of Proposition 47’s effective
date. Under either section 1170.18 or the standard in People v.
Lara, Jimenez’s entitlement to relief turns on whether the new
shoplifting statute at section 459.5 altered or redefined the
offense set forth in section 530.5, subdivision (a) — in other
words, whether section 459.5 permitted the prosecutor to charge
Jimenez with misuse of personal identifying information, or only
with shoplifting.
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The People charged a violation of, and Jimenez was
convicted of violating, section 530.5, subdivision (a). Entitled
“Unauthorized use of personal identifying information of
another person,” it provides: “Every person who willfully
obtains personal identifying information . . . of another person,
and uses that information for any unlawful purpose, including
to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information without the consent of that
person, is guilty of a public offense . . . .” (§ 530.5, subd. (a).)
Personal identifying information is elsewhere defined to include
“any name, address, [or] telephone number,” as well as any
“checking account number” and a host of other personal
identifying information — from medical information and social
security numbers to telecommunications data and mothers’
maiden names. (§ 530.55, subd. (b).) In short, a conviction
under section 530.5, subdivision (a) requires proof “(1) that the
person willfully obtain[ed] personal identifying information
belonging to someone else; (2) that the person use[d] that
information for any unlawful purpose; and (3) that the person
who use[d] the personal identifying information d[id] so without
the consent of the person whose personal identifying
information [was] being used.” (People v. Bollaert (2016) 248
Cal.App.4th 699, 708–709, quoting People v. Barba (2012) 211
Cal.App.4th 214, 223 (Barba).)
Although lawmakers and the public sometimes refer to
section 530.5, subdivision (a)’s prohibition on the misuse of
personally identifying information as “identity theft,” section
530.5, subdivision (a) makes no mention of theft. It makes no
reference to the consolidated theft offenses in section 484. (See
Gonzales, supra, 2 Cal.5th at p. 865.) It contains no
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requirement, “central to the crime of theft[,] that the
information be stolen at all” (People v. Truong (2017) 10
Cal.App.5th 551, 562 (Truong)), or that the victim’s information
was taken with “the intent to permanently deprive the owner of
its possession” (People v. Page (2017) 3 Cal.5th 1175, 1182
(Page)). Indeed, by its very terms, the offense of misuse of
personal identifying information can be accomplished by
acquiring the information with valid consent, using it for an
unlawful purpose, and returning it.
The structure and history of section 530.5 reinforce our
understanding that “[t]he gravamen of the . . . offense is the
unlawful use of a victim’s identity.” (People v. Sanders (2018)
22 Cal.App.5th 397, 400 (Sanders).) The Legislature enacted
section 530.5 in 1997 as part of a slate of changes to California’s
Consumer Credit Reporting Agencies Act. (Stats. 1997, ch. 768,
§ 6, p. 5205.) Until section 530.5 took effect, “law enforcement
agencies generally considered the defrauded business entity . . .
to be the victim of identity theft, not the person whose identity
was stolen so that the fraud could be committed.” (Sen. Com. on
Public Safety, Analysis of Assem. Bill No. 245 (2001–2002 Reg.
Sess.) as amended May 1, 2000.) As a result, victims found it
difficult to report the crime, seek damages, and clear their
names. (Ibid.)
This vexing problem ballooned as the expansion of the
Internet made it easier than ever before to access and misuse
personal information. As part of a comprehensive attack on this
growing problem, the bill’s sponsor lobbied to create section
530.5. In contrast, “existing law [did] not provide any remedy
for the real victim: the person whose credit has been damaged
or ruined.” (Sen. Com. on Public Safety, Analysis of Assem. Bill
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No. 156 (1997–1998 Reg. Sess.) as amended July 3, 1997, p. 8.)
Instead, the sponsor said, “all existing related crimes, such as
grand theft (§ 484), fraudulent use of access cards (§§ 484d–484i)
and using another person’s identification in a financial
statement (§ 532) are crimes against parties other than the
person whose identity has been used.” (Sen. Com. on Public
Safety, Analysis of Assem. Bill No. 156 (1997–1998 Reg. Sess.)
as amended July 3, 1997, pp. 7–8.) Thus was born the offense
we now call “identity theft.” It accompanied a set of reporting
and verification requirements for consumer credit agencies, a
series of police investigation protocols for identity theft reports,
and new procedures by which victims could clear their names
and block inaccurate information from their credit files. (Id. at
pp. 2–3.)
Perhaps reflecting legislative concern to right-size the
offense relative to the perceived societal harms at issue, the
Legislature has amended section 530.5 nearly a dozen times
since its enactment. That section currently provides that court
records “shall reflect that [a] person whose identity was falsely
used to commit [a] crime did not commit the crime” (§ 530.5,
subd. (b)); creates separate offenses for acquisition or retention
(id., subd. (c)), and sale or transfer of personal identifying
information “with intent to defraud” (id., subd. (d)); prohibits
mail theft as defined in the United States Code (id., subd. (e));
and immunizes Internet service providers from liability for the
defined offenses (id., subd. (f)).
What this history reflects is a concern for the “ripples of
harm” that “flow from the initial misappropriation” of
identifying information — harm that often goes “well beyond the
actual property obtained.” (Sen. Com. on Public Safety,
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Analysis of Assem. Bill No. 2886 (2005–2006 Reg. Sess.) as
amended May 26, 2006.) Legislators recognized that “[v]ictims
cannot easily change their name, birth date, social security
number or address, and they should not have to do so.” (Sen.
Com. on Public Safety, Analysis of Sen. Bill No. 1254 (2001–
2002 Reg. Sess.) as amended Mar. 11, 2002, p. 8.) And the
Legislature’s continued revision of the statute — generally by
broadening its scope — “shows that the felony hinged on the
seriousness of the crime and of its consequences, rather than on
the type or value of property involved” as in section 459.5.
(People v. Weir (2019) 33 Cal.App.5th 868, 875 (Weir).)
Appropriately, then, section 530.5 — unlike the theft offense at
issue in Romanowski — resides in the chapter of the Penal Code
titled “False Personation and Cheats,” rather than the chapter
titled “Larceny.” (Cf. Romanowski, supra, 2 Cal.5th at p. 908;
see Truong, supra, 10 Cal.App.5th at p. 561 [“Although
commonly referred to as ‘identity theft’ [citation], the
Legislature did not categorize the crime as a theft offense”].)
That distinction is no accident. The new shoplifting
offenses are ill-suited to punish misuse of identifying
information. (See, e.g., Weir, supra, 33 Cal.App.5th 868;
Sanders, supra, 22 Cal.App.5th 397; Truong, supra, 10
Cal.App.5th 551.) The offenses are fundamentally different, and
they reflect different legislative rationales. Consider
shoplifting, whose rationale we recently discussed in People v.
Colbert (2019) 6 Cal.5th 596. We explained that unauthorized
entries — of the sort still chargeable as burglary — present an
increased danger of violence because the entry is unwelcome,
unexpected, and results in panic and risk to personal safety. (Id.
at p. 607.) In enacting the shoplifting statute, “the electorate
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signaled that these interests do not apply in the same way”
during the day, when a person is stealing property worth $950
or less “in a place where he or she has been invited to peruse the
goods and services that are on offer.” (Ibid.) The physical
intrusion element is missing, and with it the danger that makes
burglary more culpable than shoplifting.
Section 530.5, subdivision (a), meanwhile, evinces a lack
of concern with the time of day, the method of acquiring the
information, its value, or even what –– precisely –– is done with
it. The statute prohibits a person from “acquiring, retaining, or
using information, rather than taking it,” — itself a fair
indicator that the Legislature was concerned with use, not theft.
(Weir, supra, 33 Cal.App.5th at p. 874.) And on its face, it
addresses harms reaching well beyond theft, implicating issues
of privacy and control of personal data. (See Barba, supra, 211
Cal.App.4th at p. 226 [explaining that the statute aims to
“address[] disruptions caused in victims’ lives when their
personal identifying information is used”].)
From the language, structure, and history of section 530.5,
we glean that its purpose reaches far beyond what Proposition
47 pulled into its orbit. It is not a theft offense, but “an
essentially unique crime.” (Sen. Com. on Public Safety, Analysis
of Assem. Bill No. 2886, supra, as amended May 26, 2006.)
B.
Perhaps recognizing the mismatch between section 530.5
and Proposition 47, Jimenez focuses his argument on the
similarity between his conduct and that of the defendant in
Gonzales. The argument is intuitively appealing: Jimenez did,
after all, enter a commercial establishment (Loans Plus) with
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intent to commit theft by false pretenses — a course of conduct
analogous to what we decided was enough to constitute
shoplifting in Gonzales. (See Gonzales, supra, 2 Cal.5th at p.
862 [holding that because cashing a stolen check is a form of
larceny under § 490, subd. (a), a defendant’s conviction for
burglary for “entering a bank to cash a stolen check for less than
$950 . . . constitutes shoplifting under the statute”].) Jimenez
thus contends he also committed shoplifting, and, under section
459.5, subdivision (b), an act of shoplifting “shall” be charged as
shoplifting. To Jimenez, this means any conduct that a
prosecutor could reasonably treat as fulfilling the elements of
shoplifting must be charged as shoplifting, and cannot be
charged as anything else, including misuse of identifying
information.
Jimenez builds scaffolding on a tenuous foundation. His
argument presumes a defendant’s conduct, not his crime of
conviction, is what Proposition 47 sought to reclassify. The
Court of Appeal seems to have shared this view when it affirmed
the reduction to shoplifting. It explained: “Jimenez’s conduct is
identical to Gonzales’s conduct. They both entered a commercial
establishment during business hours for the purpose of cashing
stolen checks valued at less than $950 each.” (Jimenez, supra,
22 Cal.App.5th at p. 1289, italics added.) Yet Jimenez’s conduct,
though unquestionably relevant, bears on only one aspect of our
analysis. What triggers section 459.5, subdivision (b)’s bar is
not only whether a defendant’s course of conduct includes an act
of shoplifting, but also whether the charged crime is burglary or
theft of the same property. Conduct indeed bears on whether a
defendant “may . . . be charged with burglary or theft of the
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same property,” but not on whether section 530.5 creates a
“theft” offense. (§ 459.5, subd. (b).)
As we conveyed in Martinez, similarity of conduct is not
pivotal. The critical question for reclassification is whether the
felony offense “ ‘would have been . . . a misdemeanor under
[Proposition 47] had [it] been in effect at the time of the
offense.’ ” (Martinez, supra, 4 Cal.5th at p. 652, quoting §
1170.18, subd. (a).) Under People v. Lara, the question varies
only in verb tense: Is the felony offense now a misdemeanor
under Proposition 47? In Martinez, although the defendant
committed conduct that, under another statute, may well have
been reduced to a misdemeanor, we found him ineligible for
resentencing because “none of the statutes amended or enacted
by Proposition 47 altered the offense [of which he was
convicted].” (Martinez, supra, 4 Cal.5th at p. 653.) Conversely,
though the defendant in Gonzales committed conduct that could
have been charged as misuse of identifying information — and,
in Jimenez’s case, was — we found him eligible for a reduction
because he was charged and convicted of burglary, which
Proposition 47 did alter. (Gonzales, supra, 2 Cal.5th at pp. 872,
876.) Only if the offense is eligible for reclassification must a
court consider whether a defendant’s conduct fulfills the
elements of shoplifting, bringing it within Proposition 47’s
scope.
We can confirm this categorical understanding of
Proposition 47’s scope through the initiative’s express “purpose
and intent” to “[r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession” absent a disqualifying prior. (Prop. 47, § 3(3).) In
the same terms, the Legislative Analyst explained that the
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initiative applied only to certain kinds of offenses, noting that it
“[r]equires misdemeanor sentenc[ing] instead of felony for
[specified crimes] when [the] amount involved is $950 or less”
and “[r]equires resentencing for persons serving felony
sentences for [specified] offenses unless [a] court finds [an]
unreasonable public safety risk.” (Voter Information Guide,
supra, analysis of Prop. 47 by Legis. Analyst, at p. 34.) While
we must be guided by Proposition 47’s intended purpose to
reduce punishment for certain nonserious, nonviolent offenses,
we are not free to read into it any offense we might deem
nonserious and nonviolent.
“Identity theft” is explicitly mentioned only once in
Proposition 47: to create an exception to the Proposition’s new
rule allowing certain convictions for forgery to be reduced to
misdemeanors. (Prop. 47, § 6.) The Legislative Analyst
explained: “Under current law, it is a wobbler crime to forge a
check of any amount. Under this measure, forging a check
worth $950 or less would always be a misdemeanor, except that
it would remain a wobbler crime if the offender commits identity
theft in connection with forging a check.” (Voter Information
Guide, supra, analysis of Prop. 47 by Legis. Analyst, at p. 35,
italics added.) The voters thus considered misuse of personal
identifying information solely in the context of maintaining
felony treatment for offenses that otherwise would be reducible
to misdemeanors. This strongly suggests voters did not intend
for “identity theft” convictions to be reduced to misdemeanors
under Proposition 47.
The cases on which Jimenez relies underscore the
centrality of the offense charged by the prosecution in the
Proposition 47 analysis. In Romanowski, for instance, we
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considered whether section 484e, subdivision (d) — prohibiting
theft of access card information — qualifies for resentencing as
petty theft under section 490.2. (Romanowski, supra, 2 Cal.5th
at p. 908.) It was no small part of our analysis that section 484e
explicitly defined theft of access card information as grand theft,
which pulled it within the ambit of the new petty theft statute.
(Romanowski, supra, 2 Cal.5th at p. 908.) But we confirmed
that the offense also sounded in theft and sat comfortably in the
“Larceny” chapter of the Penal Code. (Id. at pp. 908–909.)
We did much the same in Page, supra, 3 Cal.5th at page
1180. What we decided is that one version of Vehicle Code
section 10851 — “taking or driving a vehicle without the owner’s
consent” — established an offense qualifying as petty theft
under the new Penal Code section 490.2. As a carve-out for
offenses otherwise deemed grand theft, that section mandates
misdemeanor punishment for a defendant who “obtain[ed] any
property by theft” where the value of the property was $950 or
less. (Page, supra, 3 Cal.5th at pp. 1180, 1183.) Although
Vehicle Code section 10851 did not “expressly designate the
offense as ‘grand theft’ ” and its prohibitions swept more broadly
than “theft,” we had previously identified a theft and non-theft
way to commit the offense. (Id. at p. 1182.) The theft version of
the vehicular offense fully mapped on to the new petty theft
statute, and we thus concluded that version, alone, was eligible
for reduction: “ ‘[A] defendant convicted under section 10851(a)
of unlawfully taking a vehicle with the intent to permanently
deprive the owner of possession’ has been convicted of stealing
the vehicle.” (Id. at p. 1184.)
The same doesn’t hold for Jimenez’s offense. Where
Vehicle Code section 10851 contemplates two permutations —
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
one fully satisfying the elements of petty theft after Proposition
47 — Penal Code section 530.5, subdivision (a) contains no
separate provision that, when violated, exclusively constitutes
shoplifting or even theft. Instead the offense defined in section
530.5, subdivision (a) always requires more than “entering a
commercial establishment with intent to commit larceny”
during business hours — so proving shoplifting is not sufficient
to prove misuse of identifying information under section 530.5,
subdivision (a). (See § 459.5, subd. (a); People v. Soto (2018) 23
Cal.App.5th 813, 822 [distinguishing Page and Romanowski
from offenses that are “not identified as grand theft and
require[] additional necessary elements beyond . . . theft”].)
Section 530.5, subdivision (a) also requires much less than the
elements specified in section 459.5; indeed, misuse of personal
identifying information contains none of the elements of section
459.5, subdivision (a). (Compare § 530.5, subd. (a) [“Every
person who willfully obtains personal identifying
information . . . of another person, and uses that information for
any unlawful purpose . . . is guilty of a public offense”] with
§ 459.5, subd. (a) [“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)”].)
Jimenez nonetheless maintains that we used unequivocal
language in Gonzales to hold that the only permissible charge in
a case with facts analogous to those in this case is shoplifting.
“A defendant must be charged only with shoplifting when the
statute applies,” we wrote, because “[i]t expressly prohibits
alternate charging and ensures only misdemeanor treatment for
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
the underlying described conduct.” (Gonzales, supra, 2 Cal.5th
at p. 876.) Jimenez further argues that Gonzales stands for the
proposition that whenever a defendant’s conduct constitutes
shoplifting, it can only be charged as shoplifting.
This argument misses the mark. Gonzales resolved a
different question: whether a defendant was eligible for
misdemeanor shoplifting resentencing under Proposition 47
when his conviction was for burglary based on a course of
conduct involving entering a store to cash a fraudulent check.
Our decision in Gonzales explained that the defendant was
eligible for resentencing on those facts because of what was
essentially a perfect overlap between the charged burglary and
the facts that would have supported the shoplifting charge: The
course of conduct rested on precisely the same entry, with the
same intent, to take the same property, as would have supported
a shoplifting charge. So Proposition 47’s mandate that “[a]ny
act of shoplifting . . . be charged as shoplifting” and “[n]o person
who is charged with shoplifting may also be charged with
burglary or theft of the same property” applied with full force.
When we explained that a “defendant must be charged only with
shoplifting when the statute applies” (Gonzales, supra, 2 Cal.5th
at p. 876), what we meant is simply that a person whose conduct
constitutes shoplifting could not be charged with burglary or a
theft crime for that same conduct instead of shoplifting, as
occurred in Gonzales. It does not follow that similar conduct,
including conduct that fulfills the elements of the misuse of
personal identifying information under section 530.5,
subdivision (a), must always be charged only as shoplifting, even
if no conviction for burglary or theft — the only crimes barred
under section 459.5, subdivision (b) — is at issue. In fact, no
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
conviction for personal identifying information misuse even
occurred in Gonzales.
The Attorney General also made another relevant
argument in Gonzales: that Gonzales’s burglary conviction was
ineligible for resentencing because of the possibility that
Gonzales might have entered with intent to violate section
530.5. In addressing this contention, we explained that a
burglary charge might be permitted for entry with intent to
commit acts other than theft of an amount equal to or less than
$950. But section 459.5, subdivision (b)’s bar against burglary
charges applied with full force to Gonzales because the only
proof was of entry with the intent to steal property in an amount
below the shoplifting threshold. (See Gonzales, supra, 2 Cal.5th
at pp. 876–877.) No similar bar applies here. Jimenez was
charged with a violation of section 530.5 –– neither a burglary
nor theft offense.
To therefore read the language of Gonzales as forcing the
prosecution to charge only misdemeanor shoplifting for any
misuse of personal identifying information involving $950 or
less would lead to odd results –– ones that make for an awkward
fit with the statutes at issue. Consider a person who enters a
commercial establishment during the day with the intent to
steal a particular video game from the shelf. If a child were
holding the video game and the person simply took the child
along with the game, the course of conduct would likely be
chargeable as kidnapping. (See § 207.) It defies logic to argue
that Proposition 47 mandates only a misdemeanor shoplifting
charge on those facts. We have no reason to believe Proposition
47 “extends to any course of conduct that happens to include”
entry into a commercial establishment with intent to commit
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
larceny. At oral argument, Jimenez attempted to address this
concern by contending that additional offenses could be charged
with shoplifting, but only if the other offenses involved force or
violence. To adopt such a test would be to write into the statute
a limitation which is simply not there. Voters made clear that
section 459.5’s prohibition extends only to “burglary or theft”
offenses. Because misuse of personal identifying information is
neither, this proscription simply does not apply.
True: People who violate section 530.5, subdivision (a) will
often use the information to commit some manner of theft,
making the theft an important element of that second crime.
This is what Gonzales was charged with doing when he stole his
grandmother’s checkbook and cashed two checks without her
consent (Gonzales, supra, 2 Cal.5th at p. 862), and it bears some
resemblance to the facts at issue here. No doubt it was this
realization that prompted the Court of Appeal to conclude:
“That Jimenez committed identity theft in the course of the
shoplifting does not alter the fact that he committed
shoplifting.” (Jimenez, supra, 22 Cal.App.5th at p. 1290.) What
would be more accurate, however, is to put it this way: That
Jimenez committed shoplifting in the course of identity theft
does not alter the fact that he committed identity theft.
C.
Jimenez also posits that his conviction can be reduced to
misdemeanor petty theft, the other new misdemeanor theft
offense created by Proposition 47. (See § 490.2, subd. (a).)
Section 490.2 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
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor . . . .”
This argument fails, too. It falters for the same reason his
conviction cannot be reclassified as shoplifting: Misuse of
personal identifying information is not a theft offense. The
offense described by section 530.5 criminalizes the improper use,
not the illegal taking, of information. Like shoplifting, misuse
of personal identifying information shares no common elements
with petty theft. (Compare § 530.5, subd. (a) [“Every person who
willfully obtains personal identifying information . . . of another
person, and uses that information for any unlawful
purpose . . . is guilty of a public offense”] with § 490.2
[“[O]btaining 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”].)
Endeavoring to support his expansive interpretation of
section 490.2, Jimenez relies on two of our earlier cases,
Romanowski and Page. As we have already explained, however,
both of those cases involved crimes that could readily be
classified as theft offenses. In Romanowski we noted that
section 484, subdivision (a), theft of access card information, is
explicitly defined as grand theft (Romanowski, supra, 2 Cal.5th
at p. 908), clearly moving it into the scope of section 490.2 (see
§ 490.2, subd. (a) [“Notwithstanding Section 487 or any other
provision of law defining grand theft, obtaining any property by
theft where the value . . . does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft”]). In Page we
relied on our previous identification of a “theft” and “nontheft”
way to commit the offense. (Page, supra, 3 Cal.5th at pp. 1182–
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
1183.) There is no similar reason to conclude that misuse of
personal identifying information is a theft offense.
III.
The prohibitions on shoplifting and misuse of personal
identifying information protect potential victims from different
harms. The shoplifting offense is like forgery and other
nonviolent theft crimes: It protects the entity with which the
shoplifter is (in a manner of speaking) engaging — here, Loans
Plus. Section 530.5, subdivision (a) is different. It protects
primarily the person or entity whose information was
unlawfully used without consent — here, OuterWall, who may
have suffered repercussions from the misuse of its financial
account information. (See Sanders, supra, 22 Cal.App.5th at p.
403 [noting the “basic problem is that appellant’s acts of stealing
from merchants do not amount to a theft from the cardholder”
because the “cardholder was harmed by the unlawful use of her
card and thefts from the merchants do not make the cardholder
a victim of those thefts”].)
Ultimately, use of the shorthand “identity theft” to
describe the offense in section 530.5 doesn’t somehow make the
misuse of personal identifying information swallow up elements
of the theft offense, nor does it otherwise “provide a reason to
read into the statute an additional element that cannot be found
by referring to the language of the statute.” (Barba, supra, 211
Cal.App.4th at p. 227.) Section 459.5 proscribes charging
“burglary or theft of the same property” for shoplifting conduct
(§ 459.5, subd. (b).) But misuse of personal identifying
information is not a “theft” offense, so it remains a perfectly
valid charge where a defendant engages in actions including
conduct overlapping with misdemeanor shoplifting but where
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PEOPLE v. JIMENEZ
Opinion of the Court by Cuéllar, J.
the course of conduct also fulfills elements — such as the misuse
of personal identifying information that is all too common in the
digital economy — wholly distinct from what a shoplifting
conviction would require.
The judgment of the Court of Appeal is reversed, and this
case is remanded to the Court of Appeal with instructions to
send the case back to the trial court for sentencing not
inconsistent with this opinion. To the extent it conflicts with
this holding, People v. Brayton (2018) 25 Cal.App.5th 734(review granted Oct. 10, 2018, S251122) is disapproved.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jimenez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 22 Cal.App.5th 1282Rehearing Granted
__________________________________________________________________________________
Opinion No. S249397
Date Filed: March 2, 2020
__________________________________________________________________________________
Court: Superior
County: Ventura
Judge: Manuel J. Covarrubias
__________________________________________________________________________________
Counsel:
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen and Michelle J. Contois, Deputy District
Attorneys, for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, and William M. Quest, Deputy Public Defender, for Defendant and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michelle J. Contois
Deputy District Attorney
800 South Victoria Avenue
Ventura, CA 93009
(805) 654-3078
William M. Quest
Senior Deputy Public Defender
800 South Victoria Avenue, HOJ-207
Ventura, CA 93009
(805) 654-3032