The balances in bank accounts linked to stolen debit cards may be considered in determining the fair market value of the stolen cards. Caretto pleaded no contest to two counts of receiving stolen property (Pen. Code, § 496) after he was found with two stolen debit cards. After Proposition 47 amended section 496 to provide that receiving stolen property valued at $950 or under is a misdemeanor, Caretto filed a motion during his probation violation proceedings requesting that these offenses be reduced to misdemeanors. The trial court concluded that the value of the cards was the amount of money in the accounts linked to the cards, which exceeded $950, and denied the motion to reduce the felony offenses to misdemeanors. Caretto filed a writ of mandate and the California Supreme Court ultimately transferred the matter to the Court of Appeal to reconsider the issue in light of People v. Romanowski (2017) 2 Cal.5th 903, which was decided after the trial court proceedings in this case. Held: Petition granted. In determining the value of stolen access card information, the court in Romanowski held that the “reasonable and fair market value” test for theft crimes requires courts to identify how much stolen access card information would sell for, and this can include illegal sales. After analyzing Romanowski, the Court of Appeal concluded that “a host of evidence could be relevant to the fair market value of stolen access cards, from actual fraudulent charges and the balances in linked accounts to expert testimony on the illegal market for stolen cards.” Although the trial court here was entitled to credit the victim’s statement about the amount of money in his accounts to infer that the stolen debit cards would have been valued in the marketplace at or near the balances in the linked accounts, Caretto should be given an opportunity to present evidence consistent with Romanowski in order to rebut the People’s showing.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B265256A.PDF