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Name: People v. King
Case #: B261784
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 12/10/2015

Possession of access card information is not subject to reduction to a misdemeanor under Proposition 47 regardless of the amount fraudulently taken. In June 2014, King pleaded no contest to a grand theft violation of Penal Code section 484e, subdivision (d). Preliminary hearing testimony revealed that King attempted to purchase an iPad (valued at less than $700) with someone else’s credit card. Following the passage of Proposition 47 in November 2014, King petitioned to have his felony reduced to a misdemeanor. (See Pen. Code, § 1170.18.) The trial court found his offense did not qualify for reduction and denied the request. King appealed. Held: Affirmed. Penal Code section 484e, subdivision (d) provides that it is grand theft to acquire or retain another person’s access card account information without the account holder’s consent, with the intent to use it fraudulently. Penal Code section 490.2, which was added by Proposition 47, states that notwithstanding section 487 or any other provision of law defining grand theft, obtaining any property by theft where the property taken does not exceed $950 is to be punished as a misdemeanor, i.e., it defines petty theft according to the value of the items taken. However, the taking of items of a particular value is not an element of section 484e, subdivision (d). The conduct described in section 484e, subdivision (d) is grand theft to which section 490.2 does not apply (disagreeing with the contrary holding in People v. Romanowski (2015) 242 Cal.App.4th. 151).