The fair market value of stolen access card information is a factual question that involves various factors and unauthorized charges do not necessarily reflect the minimum fair market value. Prior to the passage of Proposition 47, Liu was convicted of five counts of theft of access card information under Penal Code section 484e, subdivision (d) (among other offenses). The trial court denied Liu’s Proposition 47 petition to resentence these offenses as misdemeanors. While Liu’s appeal was pending, the California Supreme Court decided People v. Romanowski (2017) 2 Cal.5th 903, which addressed Proposition 47’s application to section 484e, subdivision (d). Applying Romanowski, the Court of Appeal affirmed in part and reversed in part the trial court’s order. The court based its decision on the value of what Liu had obtained with the victims’ access card information, concluding that the stolen access card information would sell for at least the value of the property obtained by a defendant who used the information. The Supreme Court granted review. Held: Vacated and remanded. The value of stolen access card information is determined by how much the stolen access card information would sell for in the illicit market. A range of methods may be used to make this determination and various factors may be considered, such as: (1) the access card’s credit limit or the account balance, if knowable when the defendant engages in the acquisition or retention of information that serves as the basis for criminal liability under section 484e, subdivision (d); (2) the amount of account information possessed by the defendant; (3) how much the value of the information has been diminished because of its sale in illicit markets; (4) how recently the information was stolen; and (5) the prevalence of comparable information on the illicit market. Here, the record only consisted of evidence of the amounts Liu unlawfully charged to her victims’ accounts. This amount is not likely to reflect the fair market value. The matter was remanded for further factfinding in the trial court.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S248130.PDF