People v. Weir

Filed 3/29/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D073626
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD273683 &
SCD259797)
ZACHARY WEIR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Amalia
Meza, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta
and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury trial, defendant Zachary Weir was convicted of four counts of felony
possession of personal identifying information (Pen. Code, § 530.5, subds. (c)(1) &
(c)(2)).1 On appeal, Weir contends that his felony convictions should have been
classified as misdemeanors under Proposition 47's enactment of section 490.2 defining
petty theft.2
The issue of which offenses are and are not subject to reclassification under
Proposition 47 is currently a matter of debate in our courts, as evidenced by the number
of such cases pending review in our high court. (See People v. Sanders (2018) 22
Cal.App.5th 397, rev. granted July 25, 2018, S248775 (Sanders); People v. Jimenez
(2018) 22 Cal.App.5th 1282, rev. granted July 25, 2018, S249397 (Jimenez); People v.
Brayton (2018) 25 Cal.App.5th 734, rev. granted Oct. 10, 2018, S251122 (Brayton).)
This case requires us to interpret section 530.5, subdivision (c) (section 530.5(c)) and
determine whether a conviction under subsections (1) and (2) of this subdivision should
be reduced to a misdemeanor under section 490.2's petty theft provision. As we explain,
we conclude section 530.5(c) is not subject to reclassification under Proposition 47
because section 490.2 only reclassifies theft offenses, a violation of section 530.5(c) is a
nontheft offense, and to conclude otherwise would be contrary to Proposition 47's intent.
1 Subsequent statutory references are to the Penal Code unless otherwise specified.
2 Weir also filed a petition for a writ of habeas corpus asserting that he qualifies for
pretrial diversion pursuant to section 1001.36, which was enacted in 2018. Because we
conclude that this statute applies retroactively, we are separately issuing an order to show
cause concurrent with this opinion that is made returnable before the Superior Court of
San Diego County to determine in the first instance whether he qualifies for diversion
under section 1001.36. (See, e.g. In re M.S. (Mar. 11, 2019, B280998) __ Cal.App.5th
__.)
2
FACTUAL AND PROCEDURAL BACKGROUND
This appeal follows a trial involving four counts of possession of personal
identifying information (§ 530.5(c)(1)) that also served as an evidentiary hearing on a
probation matter involving possession of a weapon at a penal institution (§ 4502, subd.
(a)).
While in custody for unrelated charges, Weir was found in possession of an object
that could be used as a weapon. The San Diego District Attorney filed an information
charging him with possession of a weapon at a penal institution (§ 4502, subd. (a)). Weir
pleaded guilty to the offense and was placed on probation in March 2016.
In September 2017, police officers stopped Weir for smoking on the boardwalk
and riding a bicycle without lights. Officers conducted a valid search and found inside
his backpack an accordion folder containing the identifying information of four
individuals, including identification cards, a AAA card, a bank deposit record with an
account number, a social security card, military records, and medical records. Weir was
arrested and his probation summarily revoked.
The San Diego District Attorney filed an information charging Weir with four
felony counts of obtaining personal identifying information with intent to defraud
(§ 530.5(c)(1)), each with allegations of a prior conviction for a similar offense
(§ 530.5(c)(2)). A jury convicted Weir on all four counts. The court sentenced him to a
total of five years eight months in county jail, comprised of the four counts of possession
of personal identifying information, one count of possession of a weapon at a penal
institution, and two prior prison enhancements.
3
DISCUSSION
Weir contends that because no evidence was presented regarding whether the
value of the personal identifying information in his possession exceeded $950, his
convictions under section 530.5(c)(1) and (c)(2) should be reduced to misdemeanor
convictions under section 490.2's petty theft provision. As we will explain, offenses
under section 530.5 are not theft offenses and do not fall within the scope of section
490.2. Weir's felony convictions are therefore ineligible for reclassification as
misdemeanor petty theft.
Because the facts are not in dispute, our task is to determine whether Proposition
47 applies to a conviction under section 530.5(c)(1) and (c)(2). This presents a pure
question of law, subject to de novo review. (People v. Bush (2016) 245 Cal. App. 4th 992,
1003.) The court's role in interpreting a statute is "to ascertain the Legislature's intent so
as to effectuate the purpose of the law." (People v. Barba (2012) 211 Cal. App. 4th 214,
222 (Barba).)
We begin with the plain language of the statute, then look to the statute's purpose,
legislative history, public policy, and statutory scheme to " ' " 'select the construction that
comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.' " ' " (Barba, supra, 211
Cal.App.4th at p. 222.) The same principles of statutory construction are applied when
interpreting a voter initiative. (People v. Canty (2004) 32 Cal. 4th 1266, 1276).
4
I
Proposition 47's Purpose and Scope
"Approved by the voters in 2014, Proposition 47 (the 'Safe Neighborhoods and
Schools Act') reduced the punishment for certain theft- and drug-related offenses, making
them punishable as misdemeanors rather than felonies. To that end, Proposition 47
amended or added several statutory provisions, including new . . . section 490.2, which
provides that 'obtaining any property by theft' is petty theft and is to be punished as a
misdemeanor if the value of the property taken is $950 or less." (People v. Page (2017) 3
Cal.5th 1175, 1179 (Page).)
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, except that such person may instead
be punished pursuant to subdivision (h) of Section 1170 if that
person has one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290."
Proposition 47's addition of section 490.2 specifically reduced punishment for the
"category of theft crimes . . . that could previously be 'charged as grand theft' simply
because 'the crime involves the theft of certain property' " by creating a $950 threshold
regardless of the type of property involved. (People v. Romanowski (2017) 2 Cal.5th
903, 910 (Romanowski), citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
analysis of Prop. 47 by Legis. Analyst, p. 35 (Voter Information Guide).) This section
5
was added to target certain "nonserious and nonviolent property and drug offenses":
grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and
drug possession. (Ibid.) By requiring misdemeanors for these types of crimes,
Proposition 47 intended to focus prison spending on serious and violent offenses and
redirect savings to provide crime prevention and support services in schools, trauma
services for victims of crime, and mental health and substance abuse treatment for those
already in the justice system. (Voter Information Guide, supra, text of Prop. 47, § 2, at
p. 70.)
II
California Penal Code Section 530.5 is a Nontheft Offense
We must decide whether a violation of section 530.5(c)(1) and (c)(2) is considered
"obtaining any property by theft" and would constitute petty theft under section 490.2.
Section 530.5(c) reads:
"(1) Every person who, with the intent to defraud, acquires or retains
possession of the personal identifying information, as defined in
subdivision (b) of Section 530.55, of another person 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
both a fine and imprisonment.
"(2) Every person who, with the intent to defraud, acquires or retains
possession of the personal identifying information, as defined in
subdivision (b) of Section 530.55, of another person, and who has
previously been convicted of a violation of this section, upon
conviction therefor shall be punished by a fine, by imprisonment in a
county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170.
6
"(3) Every person who, with the intent to defraud, acquires or retains
possession of the personal identifying information, as defined in
subdivision (b) of Section 530.55, 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 both a fine and imprisonment, or by imprisonment
pursuant to subdivision (h) of Section 1170."
Subdivision (a) of this statute also proscribes use of personal identifying
information for "any unlawful purpose." "Personal identifying information" is defined in
section 530.55, subdivision (b), and encompasses any "name, address, telephone number,
health insurance number, taxpayer identification number . . . checking account number,
PIN (personal identification number) or password, alien registration number, government
passport number, date of birth, unique biometric data . . . credit card number of an
individual person, or an equivalent form of identification."
Although a violation of section 530.5 is commonly referred to as identity theft, the
plain language of the statute designates a violation of this section a nontheft offense.3
The statute prohibits a person from acquiring, retaining, or using information, rather than
taking it, an indicator that the Legislature was concerned with possession or use rather
than with theft.4 Moreover, a violation of section 530.5 does not require the offender to
3 "[U]se of the shorthand term 'identity theft' to describe the offense made
punishable in section 530.5 does not 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.)
4 The only language indicating a theft requirement appears in section 530.5,
subdivision (e), which reads, "Every person who commits mail theft, as defined in
Section 1708 of Title 18 of the United States Code, is guilty of a public offense. . . ."
This statute is titled "Theft or receipt of stolen mail matter generally" and distinguishes
7
take or possess another's property; it simply proscribes that person from retaining
information. It also lacks a numerical threshold distinguishing misdemeanor from felony
offenses, unlike many theft statutes that distinguish between grand and petty theft. (See,
e.g., §§ 486–488.) Finally, section 530.5 also does not explicitly categorize the crime as
theft or grand theft, defining the crime instead as a "public offense."
Although the plain language of the statute is clear, we turn to additional tools of
statutory construction for further guidance. (Lungren v. Deukmejian (1988) 45 Cal. 3d
727, 735 ["[T]he 'plain meaning' rule does not prohibit a court from determining whether
the literal meaning of a measure comports with its purpose or whether such a construction
of one provision is consistent with other provisions of the statute"].)
First, we note that section 530.5 is outside of the statutory scheme governing theft
offenses; the statute instead resides in the chapter of the Penal Code titled "False
Personation and Cheats." (See People v. Truong (2017) 10 Cal.App.5th 551, 561–562
[noting that a violation of section 530.5 is not a theft offense and that the Legislature did
not categorize it as such].)
Second, the history of the statute sheds light on its purpose and public policy.
Section 530.5 was initially enacted as part of a bill reforming credit reporting agency
practices and retail credit approval requirements to prevent consumers from opening
fraudulent credit accounts in another person's name. (Sen. Com. on Pub. Safety, Analysis
between the theft offense ("steals, takes, or abstracts, or by fraud or deception obtains")
and the nontheft offense ("buys, receives, conceals, or unlawfully has in his possession").
In this way, section 530.5(c) is more akin to the receipt of stolen mail, the nontheft form
of the federal offense.
8
of Assem. Bill No. 156 (1997–1998 Reg. Sess.) as amended July 3, 1997, § 3.) The
creation of a new crime under section 530.5 was considered necessary to provide a
previously unavailable remedy for the victim whose credit has been damaged. (Id. at
§ 4.) Therefore, the purpose of the statute is to remedy harm to the victim whose identity
has been misused rather than to punish the theft of property.5
In 2002, the Legislature amended section 530.5, adding what has now become
subdivision (c)(1) to punish not just the use of personal identifying information, but also
its acquisition with intent to defraud. (Stats. 2002, ch. 254, §1.) As originally amended,
retaining or acquiring possession of personal identifying information was a misdemeanor.
(Stats. 2002, ch. 254, §1, Sen. Rules Com., Office of Sen. Floor Analyses, Analysis of
Sen. Bill No. 1254 (2001–2002 Reg. Sess.) as amended June 28, 2002, pp. 2–3.) In 2006,
the Legislature again amended section 530.5 to add what is now subdivision (c)(2),
making the offense a wobbler if the offender has been convicted of a prior violation of
5 We note that Romanowski rejected a contention that section 484e was ineligible
for resentencing because of its special protection of consumers. (Romanowski, supra, 2
Cal.5th at p. 913.) We, however, are not asserting that section 530.5 has special
significance due to the class of victims it protects; rather, we conclude that the extent of
harm this section is designed to prevent is distinct from that caused by theft. Further,
Romanowski analogizes a reclassification of a violation of section 484e to a violation of
section 473, which allows reclassification of forgery convictions as misdemeanors under
the $950 threshold. (Romanowski, at p. 913.) In making this point, the Romanowski
court would not be able to conclude that forgery is comparable to possession of personal
identifying information because section 473 explicitly distinguishes between the two.
(§ 473, subd. (b) ["This subdivision shall not be applicable to any person who is
convicted both of forgery and of identity theft, as defined in Section 530.5."].)
9
the statute. (Stats. 2006, ch. 522, §2.) The 2006 amendment also criminalized the sale,
transfer, or conveyance of personal identifying information and mail theft. (Ibid.)
The Legislature's purpose in enacting both amendments was to provide additional
protection for victims due to their limited ability to prevent the use of their personal
information and the extent of the harm that results when their information is used. (Sen.
Com. on Pub. Safety, Analysis of Sen. Bill No. 1254 (2001–2002 Reg. Sess.) as amended
March 11, 2002, pp. 7–8 (Analysis of Sen. Bill No. 1254); Assembly Committee on Pub.
Safety, Analysis of Assem. Bill No. 2886 (2005–2006 Reg. Sess.) as introduced Feb. 24,
2006, p. 4.) Legislators recognized the victims' unique harm: "Victims cannot easily
change their name, birth date, social security number or address, and they should not
have to do so." (Analysis of Sen. Bill No. 1254, supra, at p. 8.) The Legislature's
continued expansion of the crime 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 is
the case in section 490.2.
The crime of having or using personal identifying information of another person
under section 530.5 is therefore distinguishable from the separate crime of stealing
property under some other provision proscribing theft. Each involves a distinct victim
and a distinct goal; section 530.5, as noted, protects the person whose information was
10
obtained rather than the person whose property was taken.6 The perpetrator need not
even be in possession of property that contains personal identifying information; he or
she can violate section 530.5(c) by simply retaining the information (by memory or
otherwise) and intending to use, or actually using, it to defraud the person whom it
identifies.7
This distinction convinces us that the offense in section 530.5(c) is punishable
because of the particular nature and effect of the crime—potential harm that far exceeds
the value of any property obtained by the subsequent misuse of the information, rather
6 The Senate Committee noted: "[A]ll existing related crimes, such as grand theft
(Penal Code Section 484), fraudulent use of access cards (Penal Code Sections 484d-
484i) and using another person's identification in a financial statement (Penal Code
Section 532) are crimes against parties other than the person whose identity has been
used; the victims are credit card companies, retailers, banks, and others. Thus, existing
law does not provide any remedy for the real victim: the person whose credit has been
damaged or ruined." (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 156 (1997–
1998 Reg. Sess.) as amended July 3, 1997.)
7 In support of the additional crime of possession of personal identifying
information, the United States Secret Service argued that "[s]uspects can avoid being
charged with mail theft or receiving stolen property by simply recording the victims'
identifiers and disposing of the source documents." (Sen. Com. on Pub. Safety, Analysis
of Sen. Bill No. 1254 (2001–2002 Reg. Sess.) as amended Mar. 11, 2002,
p. 16.)
11
than the comparatively isolated consequences associated with petty theft.8 An offense
under section 530.5 "is an essentially unique crime, not simply a form of grand theft. . . .
[¶] Grand theft is typically a discrete event, not a crime that creates ripples of harm to the
victim that flow from the initial misappropriation." (Sen. Com. on Pub. Safety, Analysis
of Assem. Bill No. 2886 (2005–2006 Reg. Sess.) as amended May 26, 2006, p. P.)9 In
8 The court in People v. Soto (2018) 23 Cal.App.5th 813, 822 (Soto) addressed the
ineligibility of aggravated forms of theft for reclassification under Proposition 47. In
Soto, the court refused to reclassify theft from an elder victim (§ 368, subd. (d)) under
section 490.2 because it was a "theft-plus" offense that required the additional necessary
elements that the victim be an elder or dependent adult and the defendant knew or
reasonably should have known that fact. (Soto, at pp. 823–824.) In reaching its decision,
the Soto court noted section 490.2 does not automatically extend to "any course of
conduct that happens to include obtaining property by theft worth less than $950." (Soto,
at p. 822.) Soto, however, did not decide whether a violation of section 530.5 would
amount to a theft offense. (Soto, at p. 823.) Even if we were to conclude that section
530.5(c) was a theft offense, the additional "intent to defraud" element of this subdivision
evinces the Legislative intent that it is a more aggravated form of theft and thus, would
still be ineligible for reclassification under Proposition 47. (See Soto, at p. 824.)
9 The court in People v. Valenzuela (2012) 205 Cal. App. 4th 800, 808 (Valenzuela),
cited the same committee report in concluding that a violation of 530.5(c)(1) is a "unique
theft crime" rather than a possession crime. Valenzuela relied on the statute's distinction
between acquiring or retaining personal identifying information in subdivision (c), on the
one hand, and selling, conveying, or transferring that information in subdivision (d), on
the other, in concluding that the former is not a possession offense. (Valenzuela, at pp.
807–808.) We are unpersuaded by Valenzuela because, in our view, it ignores the plain
language of subdivision (c): the offense described therein deals with the "possession
of . . . personal identifying information" rather than with the taking of the same, and is
therefore a nontheft offense, as we have noted. Indeed, there is no requirement in section
(c) that the offender even obtain the information unlawfully (i.e., by theft). (See Sen.
Com. on Pub. Safety, Analysis of Assem. Bill No. 245 (2001–2002 Reg. Sess.) as
amended May 1, 2001, at p. 9 [giving an example of a receptionist who obtains
information lawfully (i.e., with a person's authorization), only to later use such
information unlawfully, which unlawful use would nonetheless constitute a violation of
section 530.5].)
12
this way, possession of another person's identifying information is a "greater evil" than
petty theft, similar to the greater harm posed by crimes of conspiracy. (People v. Segura
(2015) 239 Cal. App. 4th 1282, 1284.)
III
Section 530.5 is not Eligible for Resentencing Under Proposition 47
A. Proposition 47 as Applied by the California Supreme Court
Our high court has interpreted the scope of Proposition 47's shoplifting and petty
theft provisions; it held that a felony burglary conviction for cashing stolen checks worth
less than $950 required resentencing as a misdemeanor under Proposition 47's enactment
of section 459.5 defining shoplifting.10 (People v. Gonzales (2017) 2 Cal.5th 858, 862
(Gonzales).)
10 Section 459.5, subdivision (a), defines the crime of shoplifting 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)." Gonzales in dicta suggested
that the defendant also could not be charged with felony burglary under the theory that he
entered with the intent to commit identity theft, because subdivision (b) of this statute
"prohibits alternate charging and ensures only misdemeanor treatment for the underlying
described conduct . . . if the property intended to be stolen is the same property at issue in
the shoplifting charge." (Gonzales, supra, 2 Cal.5th 858 at p. 876.) Gonzales is not
controlling here, as defendant Weir did not use the personal identifying information he
had obtained to steal any property, and he was not charged with a separate theft offense.
Therefore, his offense was not eligible for resentencing under section 459.5, subdivision
(a) as misdemeanor shoplifting, as was the case of the defendant in Gonzales.
13
Our high court in Romanowski subsequently held that theft of access card
information under section 484e qualified for misdemeanor treatment under section 490.2.
(Romanowski, supra, 2 Cal.5th at pp. 905–906.) The court in Romanowski reasoned a
violation of section 484e was a theft crime because the statute defines the crime as "grand
theft" and is placed in the chapter of the Penal Code titled "Larceny." (Romanowski, at
p. 908.) Because section 490.2 applied to the category of theft crimes that could
previously be charged as grand theft due to the type of property involved, the
Romanowksi court concluded this statute's reference to " 'any . . . provision of law
defining grand theft' encompass[es] theft of access card information." (Romanowski, at
p. 910.)
Romanowski is not controlling in the instant case. Unlike Romanowski, which
involved a crime explicitly categorized as grand theft and which clearly falls within
section 490.2 subdivision (a)'s reclassification of "any other provision of law defining
grand theft," section 530.5(c) is not defined as grand theft, does not constitute a theft
offense, and is found in the False Personation and Cheats chapter, as opposed to the
Larceny chapter where section 484e is located. Finally, the breadth of information at
stake in section 530.5 is much greater than that in section 484e. Section 530.55's
definition of "personal identifying information," as applied to section 530.5, encompasses
an expansive list amounting to much more than just access card information as addressed
14
in section 484e, making an offense under 530.5 much more serious than an offense under
section 484e.11
Our high court in Page addressed whether a violation of Vehicle Code section
10851 was eligible for resentencing under Proposition 47.12 (Page, supra, 3 Cal.5th at
pp. 1179–1180.) Page reiterated the rule that section 490.2 is not confined to offenses
designated as grand theft but includes other theft offenses as well. (Page, at p. 1186.)
Page distinguished between the theft form and nontheft form of Vehicle Code section
10851: taking the vehicle with the intent to permanently deprive the owner of possession
would be a theft crime, but posttheft driving of the vehicle or taking the vehicle with the
intent to deprive the owner only temporarily of possession would not constitute theft.
(Page, at p. 1183.) The court held that Proposition 47's enactment of section 490.2
covered the theft form of the offense. (Page, at p. 1183.)
11 In dicta, the Romanowski court hinted that a defendant who was voluntarily
entrusted with another's access card information and subsequently retained possession of
that information without the cardholder's consent and with the intent to defraud would be
guilty of embezzlement, a theft crime under section 484. (Romanowski, supra, 2 Cal.5th
at p. 912 [quoting section 484: " 'Every person . . . who shall fraudulently appropriate
property which has been entrusted to him or her . . . is guilty of theft' "].) Because
defendant Weir in the instant case was not entrusted with the personal identifying
information he retained, the categorization of his crime as embezzlement is not at issue
here.
12 Vehicle Code section 10851, subdivision (a) reads in part: "Any person who
drives or takes a vehicle not his or her own, without the consent of the owner thereof, and
with intent either to permanently or temporarily deprive the owner thereof of his or her
title to or possession of the vehicle, whether with or without intent to steal the vehicle . . .
is guilty of a public offense."
15
Page supports our interpretation of section 490.2. Page's reclassification of
vehicle theft under Vehicle code section 10851 is unsurprising given section 490.2's
express reference to section 487's definition of grand theft, which includes vehicle theft
under subdivision (d)(1). In making its determination, Page made sure to distinguish
between the theft form and nontheft forms of the statute and implied that the nontheft
forms of the statute would not be eligible for reclassification under Proposition 47.
(Page, supra, 3 Cal.5th at p. 1187 [noting a "violation of Vehicle Code section 10851 is
therefore eligible for resentencing . . . if the vehicle was worth $950 or less and the
sentence was imposed for the theft of the vehicle"] (italics added).) We conclude that
possession of personal identifying information under section 530.5(c) is akin to the
posttheft driving of the vehicle mentioned in Page, as both offenses do not require the
offender to steal the property or information from its owner; instead, they punish the
subsequent act of driving the vehicle, as mentioned in Page, or of retaining personal
identifying information, as in the instant case. Therefore, Page supports our conclusion
that Weir's nontheft offense under section 530.5(c) is ineligible for Proposition 47
reclassification.
Weir nonetheless relies on Page, arguing that the prosecution's theory that he
possessed the personal identifying information to commit theft makes the convictions
eligible for reclassification. Although it is not entirely clear, it appears Weir is arguing
that Page's distinction between the theft and nontheft forms of a Vehicle Code section
10851 offense are analogous to two separate theories proceeding under section 530.5—
one theory being that the offender possessed the information with the intent to commit
16
fraud or theft, and the other being that the offender did not possess the information for
either of those purposes. We find this argument unavailing. Unlike the statute at issue in
Page, section 530.5(c)(1) and (c)(2) do not contain both a theft and nontheft offense.
Rather, the "intent to defraud" is an element of the nontheft offense, so the prosecution
had to proceed on a fraud theory to convict Weir of the offense. Therefore, proceeding
on this theory does not turn the convictions into theft offenses and does not make them
eligible for misdemeanor resentencing.
B. Treatment of Section 530.5 and Proposition 47 by Other Courts
The issue of whether a violation of section 530.5, subdivision (a) (530.5(a)) is
eligible for reclassification under Proposition 47 is currently pending before our high
court.13 (See Jimenez, supra, 22 Cal.App.5th 1282, rev. granted [reclassifying a section
530.5(a) offense as a misdemeanor under section 459.5]; Sanders, supra, 22 Cal.App.5th
397, rev. granted [finding a violation of section 530.5(a) a nontheft offense and ineligible
for reclassification under 490.2]; Brayton, supra, 25 Cal.App.5th 734, rev. granted
[reclassifying a section 530.5(a) offense as a misdemeanor under section 459.5].)
13 Section 530.5(a) partly reads: "Every person who willfully obtains personal
identifying information, as defined in subdivision (b) of Section 530.55, 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."
17
Jimenez involved a defendant who entered a check-cashing business and cashed
two checks in his name, neither of which were issued to him. (Jimenez, supra, 22
Cal.App.5th at pp. 1285–1286, rev. granted.) He was convicted of two felony violations
of section 530.5(a). (Id. at p. 1286.) Relying on Gonzales, the court in Jimenez
concluded that the convictions were properly reduced to misdemeanor shoplifting
offenses under Proposition 47's enactment of section 459.5. (Id. at p. 1285.) Jimenez did
not address whether the same offense would constitute petty theft under section 490.2.
(Id. at p. 1293, fn. 6.) Because Jimenez addresses section 530.5 and reclassification
under section 459.5, its holding is inapposite here.
The issue in Sanders is more analogous to the instant case. The defendant in
Sanders was convicted of two burglary violations of section 459 as well as two felony
violations of section 530.5(a). (Sanders, supra, 22 Cal.App.5th at p. 399, rev. granted.)
This court concluded that the burglary convictions were properly reclassified under
section 459.5 as shoplifting offenses, but that the nontheft offenses under section 530.5
were ineligible for reclassification under section 490.2. (Id. at pp. 405–406.) For the
reasons stated above, we agree with Sanders' characterization of section 530.5.
18
The only case to address an offense under 530.5(c) is People v. Liu (2018) 21
Cal.App.5th 143, 152, review granted on other grounds (Liu). The court in Liu concluded
that a subsection (c)(3) offense was a nontheft offense. Unlike other offenses that fall
within the scope of Proposition 47 and section 490.2, the Liu court found that section
530.5 "is not defined as grand theft, and does not proscribe 'obtaining property by theft.' "
(Liu, at p. 152.) "By its plain terms, section 530.5 addresses harms much broader than
theft." (Ibid.) Therefore, the Liu court was "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." (Id. at p. 153.)
We find meaningful guidance from Sanders and Liu and refuse to classify section
530.5 as a nonserious theft crime within the meaning of Proposition 47. (Sanders, supra,
22 Cal.App.5th at p. 406, rev. granted; Liu, supra, 21 Cal.App.5th at p. 153.) Our
analysis of the statute's plain language and purpose leads us to conclude that section
530.5 describes a nontheft offense. A violation of that section is therefore ineligible for
reclassification as petty theft under section 490.2.
Our conclusion is further supported by Proposition 47's amendment of section
473. Proposition 47 added section 473, subdivision (b) to allow misdemeanor treatment
of a forgery offense with a value of $950 or less, with the qualifier that "[t]his subdivision
shall not be applicable to any person who is convicted both of forgery and of identity
theft, as defined in Section 530.5." This provision further illustrates that section 530.5 is
regarded as a serious crime that falls outside the scope of Proposition 47's reclassification
scheme.
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Reclassifying section 530.5 nontheft offenses as misdemeanors regardless of the
nonmonetary ramifications would be contrary to Proposition 47's intent. Pending further
guidance from our Supreme Court, we are hesitant to take such an expansive view of
section 490.2 as to allow this reclassification. The Legislature clearly can amend either
statute if it disagrees with our interpretation, but as an intermediate Court of Appeal, we
refuse to usurp the role of the Legislature by rewriting statutes. (People v. Bunn (2002)
27 Cal. 4th 1, 14–15.)
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
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