People v. Liu

Filed 3/9/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B279393
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA090351)
v.
SI H. LIU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Robert P. Applegate, Judge. Affirmed in part, and
reversed and remanded in part.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Noah P. Hill and Tita Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.
********
This is the second time this case has been before us. In 2013,
a jury convicted defendant Si H. Liu of 22 theft-related counts
connected to her scam of offering loan services to immigrants. She
took the victims’ credit cards and identifying documents and made
unauthorized purchases, or wrongfully retained copies of their
documents. In our October 30, 2015 opinion, we reversed her
conviction on one count, and modified her sentence to stay four
other counts pursuant to Penal Code section 654.1 (People v. Liu
(B254655) [nonpub. opn.] (Liu I).)
Following resolution of her appeal, defendant applied under
Proposition 47 (The Safe Neighborhoods and Schools Act; § 1170.18)
to have six counts resentenced as misdemeanors (§ 484e, subd. (d);
counts 2, 6, 14, 21, 23; § 530.5, subd. (c)(3); count 25).2 The trial
court denied her petitions, finding that “[the] defendant [is] not
eligible.” As to counts 2, 6, and 14, we affirm, finding the record
amply demonstrates defendant’s ineligibility for relief. We also find
that defendant’s conviction under section 530.5, subdivision (c)
(count 25) does not qualify for resentencing under section 1170.18
as a matter of law. As to counts 21 and 23, we reverse and remand
for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2013, a felony complaint was filed charging
defendant with 23 counts, including fraudulent acquisition and
retention of access card information (§ 484e, subd. (d)) and
fraudulent acquisition and retention of personal identifying
1 All statutory references are to the Penal Code, unless
otherwise indicated.
2 An additional application for relief was rendered moot by our
reversal of count 3 in defendant’s earlier appeal.
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information of 10 or more people (§ 530.5, subd. (c)(3)), among other
charges not relevant here. She was convicted by jury, and was
sentenced to a total term of 10 years in prison.
The following facts are drawn largely from our earlier
opinion: As to count 2, defendant acquired the driver’s license,
social security card, and several credit cards belonging to Yuan
Zhao, under the pretense that she would help Ms. Zhao obtain a
loan to remodel her home. Ms. Zhao later noticed nearly $7,000 in
fraudulent charges on her credit accounts. Following her
conviction, defendant was ordered to make restitution of $6,665 to
Ms. Zhao. (Liu I, supra, B254655.)
As to count 6, Mr. Ping Guo sought defendant’s help to obtain
a loan to pay for his brother’s cancer treatments, and provided
defendant with his driver’s license and two credit cards. He noticed
an unauthorized charge of $2,500 to one of his accounts. Defendant
was ordered to pay over $7,000 in restitution to Mr. Guo. (Liu I,
supra, B254655.)
As to count 14, defendant obtained credit cards, and other
personal information, from Jenny You for the ostensible purpose of
obtaining a loan for Ms. You. Ms. You discovered unauthorized
charges totaling $8,000 to her cards. Defendant was ordered to pay
Ms. You restitution of $2,816.50. (Liu I, supra, B254655.)
As to count 21, Mr. Chun Ouyang provided his driver’s license
and credit card to defendant to help his friend obtain a loan.
Defendant opened a new line of credit in Mr. Ouyang’s name, and
purchased $500 in gift cards on the new line of credit. Defendant
was ordered to pay restitution of $161.52 to Mr. Ouyang. (Liu I,
supra, B254655.)
As to count 23, Mr. Ting Wei Sun gave defendant his debit
card and driver’s license. She opened a new line of credit at
Walmart for Mr. Sun, and purchased $150 in gift cards. No
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restitution was ordered as to Mr. Sun. (Liu I, supra, B254655.)
Count 25 was based on defendant’s possession of driver’s
licenses, social security cards, business records, bank statements,
and other documents belonging to 10 different victims. (Liu I,
supra, B254655.)
On April 8, 2016, defendant, in propria persona, filed six
petitions seeking to have her felony sentences recalled and
resentenced as misdemeanors under section 1170.18,
subdivision (a). She checked the box on the petitions indicating
that “[t]he amount in question is not more than $950.” She did not
present any verification or other evidence in support of her
petitions. On May 11, 2016, the court held a hearing on the
petitions. The record before the trial court consisted of the felony
information, the minute order for defendant’s arraignment, minute
orders reflecting the jury’s verdict, sentencing minute orders, and
the abstract of judgment. Defendant was not present or
represented by counsel at the hearing. The People orally opposed
the petitions, urging that “not one [count] qualify[ies] for relief.”
The court denied defendant’s petitions, finding that “[d]efendant [is]
not eligible.” This appeal followed.
DISCUSSION
Proposition 47 reduced the penalties for certain drug- and
theft-related offenses and reclassified those offenses as
misdemeanors rather than felonies. (§ 1170.18; People v. Sherow
(2015) 239 Cal. App. 4th 875, 879; People v. Rivera (2015) 233
Cal. App. 4th 1085, 1091.) Under section 1170.18, a person currently
serving a felony sentence for an offense made 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. (§ 1170.18, subd. (a).) A
person who satisfies section 1170.18’s criteria shall have his or her
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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.” (Id., subd. (b).) The applicant bears the burden of proving
that he or she is eligible for Proposition 47 relief. (Sherow, at
pp. 879-880.)
Relying on the recent Supreme Court decision, People v.
Romanowski (2017) 2 Cal.5th 903 (Romanowski), defendant
contends the trial court erroneously denied her petitions for
resentencing of the section 484e, subdivision (d) counts because
theft of access card information must be reclassified as a
misdemeanor under Proposition 47 “if the fair-market value of the
cards was $950 or less.” She also contends that her section 530.5,
subdivision (c) conviction is eligible for resentencing, reasoning
section 530.5 is a theft crime and is subject to Proposition 47.
1. Counts 2, 6, 14, 21 & 23 (§ 484e, subd. (d))
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.” It is undisputed that
theft of access card information qualifies for Proposition 47 relief
where the value of the property taken does not exceed $950.
(Romanowski, supra, 2 Cal.5th at p. 917.) Because the value of
access card information is not an element of the crime, a defendant
must establish eligibility for Proposition 47 relief by proving that
the value of the property was $950 or less. (Romanowski, at
pp. 910-914.) The Romanowski court provided guidance on the
kinds of proof relevant to this showing. Acknowledging that stolen
access card information is not always used to obtain property, the
court concluded that courts may use the “reasonable and fair
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market value” test, and may look to evidence of illegal sales to
determine how much stolen access card information is worth. (Id.
at pp. 914, 915.)
Defendant contends the only method of valuation of stolen
access card information is the fair market value on the black
market, and that remand is necessary because the record here
contains no evidence of fair market value. We reject this
contention. Romanowski does not establish that the only method
for valuing access card information is the fair market value test.
(Romanowski, supra, 2 Cal.5th at p. 914.) The defendant in
Romanowski pled no contest to a felony violation of section 484e,
subdivision (d), and the opinion does not state or imply that the
defendant had used the access card information to obtain property.
(Id. at p. 906.) Where, as here, the access card information was
actually used to procure goods or services, common sense tells us
that the unauthorized charges are proof of at least the minimum
value of the access card information. (Ibid.)
Defendant relies heavily on the statement in Romanowski
that: “[A] defendant can be convicted of violating section 484e,
subdivision (d), even if he or she never uses the stolen account
information to obtain any money or other property. So the $950
threshold for theft of access card information must reflect 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.) He
also relies on the court’s reasoning that the reference to “reasonable
and fair market value” in section 484 (defining theft and providing
guidance on the determination of the value of stolen property)
“requires courts to identify how much stolen access card
information would sell for.” (Romanowski, at p. 915; see also § 484,
subd. (a).) Defendant argues this means that, in the case of a
defendant who did use the stolen account information, the value of
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property the defendant obtained is irrelevant. Defendant’s
argument makes no sense. Surely, stolen access card information
would sell for at least the value of the property obtained by a
defendant who used the information, and in many cases, it would
sell for much more.
As to counts 2, 6, and 14, the record amply supports denial of
defendant’s petitions, as more than $950 was charged to the
victims’ cards for these counts. The minute orders before the trial
court demonstrated that thousands of dollars of restitution was
ordered for each of the victims of these counts. Moreover, the
evidence at trial established that defendant charged thousands of
dollars to each of these victims’ credit accounts. (Liu I, supra,
B254655.)
As to counts 21 and 23, the record does not establish whether
the value of the access card information exceeded $950. Restitution
of only $161.52 was ordered for the victim of count 21, and no
restitution was ordered for the victim of count 23. Moreover, the
evidence at trial showed less than $950 was charged to the credit
lines of these victims. (Liu I, supra, B254655.) Respondent
concedes that remand for these counts is necessary. We therefore
affirm the denial of defendant’s petitions as to counts 2, 6, and 14,
and reverse and remand for further proceedings as to counts 21 and
23.
2. Count 25 (§ 530.5, subd. (c))
Defendant contends that her conviction for obtaining the
identifying information of 10 or more people under section 530.5,
subdivision (c) qualifies for Proposition 47 relief. Respondent
contends Proposition 47 does not apply to section 530.5. We agree
with respondent.
Section 530.5 is not listed among the statutes reduced to
misdemeanors by Proposition 47. (§ 1170.18, subds. (a), (b).)
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Nevertheless, section 490.2, subdivision (a), which was added by
Proposition 47, redefines all grand theft offenses as misdemeanors
if they involve property valued at less than $950. (§ 490.2,
subd. (a).) It provides that “[n]otwithstanding Section 487
[(defining grand theft)] 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 . . . .”
We must decide whether section 530.5 constitutes “grand
theft” or “obtaining any property by theft” within the meaning of
section 490.2. “ ‘ “In construing a statute, our task is to determine
the Legislature’s intent and purpose for the enactment. [Citation.]
We look first to the plain meaning of the statutory language, giving
the words their usual and ordinary meaning. [Citation.] If there is
no ambiguity in the statutory language, its plain meaning controls;
we presume the Legislature meant what it said. [Citation.] . . .”
[Citations.] We examine the statutory language in the context in
which it appears, and adopt the construction that best harmonizes
the statute internally and with related statutes. [Citations.]’ In
addition, we may examine the statute’s legislative history.
[Citation.]” (People v. Whitmer (2014) 230 Cal. App. 4th 906, 917.)
We apply the same basic principles of statutory construction when
interpreting a voter initiative. (People v. Canty (2004) 32 Cal. 4th
1266, 1276; People v. Rizo (2000) 22 Cal. 4th 681, 685.)
The subdivision defendant was convicted under, section 530.5,
subdivision (c)(3), provides that: “Every person who, with the
intent to defraud, acquires or retains possession of the personal
identifying information . . . of 10 or more other persons is guilty of a
public offense, and upon conviction therefor, shall be punished by a
fine, by imprisonment in a county jail not to exceed one year, or by
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both a fine and imprisonment, or by imprisonment pursuant to
subdivision (h) of Section 1170.” The statute also proscribes use of
personal identifying information “for any unlawful purpose,
including to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information . . . .” (§ 530.5, subd. (a).)
Personal identifying information includes the name, address,
telephone number, health insurance number, driver’s license or
identification number, place of employment, date of birth, birth
certificate, passport, account numbers, biometric data, and a host of
other information. (§ 530.55, subd. (b).)
Defendant equates section 530.5 with section 484e, which, as
discussed ante, the Romanowski court determined fell within the
ambit of Proposition 47. (Romanowski, supra, 2 Cal.5th at p. 917.)
However, section 484e explicitly defines theft of access card
information as grand theft. (§ 484e, subd. (d) [“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.”].) Therefore, it clearly
constitutes “[o]ne of those ‘other provision[s] of law defining grand
theft’ for which Proposition 47 reduced punishment.” (Romanowski,
at p. 908.)
Section 484e requires that the information be acquired or
retained without the cardholder’s consent. (§ 484e, subd. (d).) The
Romanowski court concluded that the “ ‘without . . . consent’
requirement confirms that theft of access card information is a
‘theft’ crime in the way the Penal Code defines ‘theft.’ ”
(Romanowski, supra, 2 Cal.5th at p. 912.)
Section 484e is placed in a chapter of the Penal Code titled
theft. (Romanowski, supra, 2 Cal.5th at. pp. 911-912.) The
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Legislature clearly intended that section 484e define a theft crime,
which is within the ambit of Proposition 47.
In contrast, section 530.5 does not define its crimes as grand
theft, but describes them as “public offense[s].” (§ 530.5.) Section
530.5 is placed in the chapter of the Penal Code defining “False
Personation and Cheats,” which includes crimes such as marriage
by false pretenses (§ 528), and falsifying birth certifications and
licenses (§§ 529a, 529.5). Section 530.5 also broadly proscribes the
use of the information “for any unlawful purpose” with the intent to
defraud, such as obtaining false driver’s licenses, birth certificates,
and passports, which could be used for a multitude of reasons
unrelated to any pecuniary gain, such as avoiding warrants, no fly
lists, and protective orders. (Id., subd. (a).) It also broadly
proscribes “intentional civil torts, including . . . invasion of privacy
by means of intrusion into private affairs and public disclosure of
private facts.” (People v. Bollaert (2016) 248 Cal. App. 4th 699, 711-
712.)
Section 530.5, subdivision (c) has no requirement that the
information be acquired or retained without the consent of its
owner. (§ 530.5, subd. (c).)3 By its plain terms, section 530.5
addresses harms much broader than theft.
At oral argument, defendant cited People v. Page (2017)
3 Cal.5th 1175 (Page), which was decided after briefing in this case
was completed. In Page, the court considered whether Proposition
47 applies to violations of Vehicle Code section 10851, taking or
driving a vehicle without the owner’s consent. The Supreme Court
3 In contrast to section 530.5, subdivision (c), under which
defendant was convicted, section 530.5, subdivision (a), punishing
the use of personal identifying information, does require that the
information be used without the consent of the person to whom the
information belongs.
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found that a violation of section 10851 may be eligible for
resentencing under Proposition 47 if the conviction was based on
theft of the vehicle rather than on posttheft driving or on a taking
without the intent to permanently deprive the owner of possession.
The court rejected the People’s argument that a defendant convicted
of section 10851 is presumptively ineligible for Proposition 47
resentencing simply because it is not expressly designated as a
“grand theft” offense. The court reasoned that the conduct it
criminalizes is theft, and it is obviously a form of grand (not petty)
theft because it is punishable as a felony. (Page, at pp. 1186, 1187,
1188.)
We do not find that Page is helpful to our analysis here. Page
simply reiterated the well-settled rule that a crime need not be
explicitly defined as “grand theft” for Proposition 47 to apply. (See,
e.g., Romanowski, supra, 2 Cal.5th at p. 910 [Prop. 47 applies to
statutes defining “ ‘any . . . provision of law defining grand theft’
” and statutes proscribing “ ‘obtaining . . . property by theft’ ”].) As
discussed above, section 530.5 is not defined as grand theft, and
does not proscribe “obtaining property by theft.” Section 530.5
addresses harms much broader than theft; and section 530.5,
subdivision (c) has no requirement that the information be acquired
or retained without the consent of its owner, a hallmark
requirement of a theft crime. (Romanowski, at p. 912; see also
§ 484, subd. (a).)
We also find that applying Proposition 47 to section 530.5 is
inconsistent with the purpose of the initiative, to “ensure that
prison spending is focused on violent and serious offenses, to
maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and
support programs in K-12 schools, victim services, and mental
health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 2, p. 70.) Section 530.5 seeks “to protect the
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victims of identity fraud, who cannot protect themselves from
fraudulent use of their identifying information once it is in the
possession of another, because they cannot easily change their
name, date of birth, Social Security number, or address.” (People v.
Valenzuela (2012) 205 Cal. App. 4th 800, 807.) Identity fraud
“creates ripples of harm to the victim that flow from the initial
misappropriation.” (Ibid.) We are not persuaded that section 530.5
defines a “nonserious” crime within the meaning of Proposition 47,
given the far-reaching effects of the misuse of a victim’s personal
identifying information.
DISPOSITION
The order denying the petitions is affirmed as to counts 2, 6,
14, and 25, and reversed and remanded as to counts 21 and 23, for
consideration of defendant’s eligibility of Proposition 47 relief as to
those counts.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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