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Name: People v. Cuen
Case #: G051368
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 10/30/2015
Subsequent History: Review granted 1/20/2016: S231107

Felony theft of access cards is not eligible for reduction to a misdemeanor under Proposition 47. In 2014, Cuen pled no contest to two counts of theft of access cards (Pen. Code, § 484e, subd. (d)), among other offenses. He received a three-year split sentence. After the passage of Proposition 47 in November 2014, he petitioned for reduction of his offenses to misdemeanors. (Pen. Code, § 1170.18.) The trial court denied his request with respect to the theft of access cards, finding those offenses “outside the letter and spirit of Proposition 47.” Cuen appealed. Held: Affirmed. Section 1170.18, subdivision (a) lists the offenses subject to reduction under Proposition 47, and section 484e, subdivision (d) is not listed. Section 490.2, which was added by Proposition 47, provides that obtaining property by theft is a misdemeanor if the value of the item taken does not exceed $950, regardless of section 487 or any other statutory provision defining grand theft. Sections 1170.18, subdivision (a) and 490.2 are unambiguous; the former enumerates the offenses subject to reduction to misdemeanors and the latter applies to theft of “money, labor, real or personal property.” “Theft of intangible access card account information presents a qualitatively different personal violation than theft of more tangible items.” Further, section 484e, subdivision (d) is the more specific statute that describes grand theft without reference to value and is therefore not subject to reduction.