In determining eligibility for Proposition 47 relief, the trial court may consider the value of the property obtained using the access card information to determine its reasonable and fair market value. In 2013, a jury convicted Liu of 22 theft-related counts connected to her plan of offering loan services to immigrants. Liu later filed six petitions seeking to have her felony sentences recalled and redesignated as misdemeanors under Proposition 47 (Pen. Code, § 1170.18, subd. (a)), which the trial court denied. Liu appealed. Held: Affirmed in part, reversed and remanded in part. Proposition 47 reduced the penalties for certain drug and theft-related offenses and reclassified those offenses as misdemeanors rather than felonies. (Pen. Code, § 1170.18.) Penal Code section 484e, subdivision (d) prohibits the acquisition or retention of access card account information without the cardholder’s consent, with the intent to use the card fraudulently. This offense qualifies for Proposition 47 relief where the value of the property taken does not exceed $950. (People v. Romanowski (2017) 2 Cal.5th 903, 917.) In order to determine the value of the access card information, the trial court may use the “reasonable and fair market value” test and may review evidence of illegal sales to determine how much stolen access card information is worth. Where, as here, the access card information was actually used to procure goods or services, the unauthorized charges are proof of at least the minimum value of the access card information. The Court of Appeal affirmed the convictions supported by testimony and restitution orders that established the value taken was over $950, and reversed and remanded two convictions in which the record did not establish that the value of the access card information exceeded $950.
Trial court properly denied Proposition 47 petition related to conviction for unlawfully possessing personal identifying information of another person (Pen. Code, § 530.5, subd. (c)). Liu argued that her conviction for obtaining the identifying information of ten or more people under section 530.5, subdivision (c) qualified for Proposition 47 relief because the crime constitutes grand theft within the meaning of Penal Code section 490.2. The Court of Appeal compared the statutory language of section 530.5 to the language of section 484e, which the Romanowski court determined fell within the ambit of Proposition 47 because it explicitly defines theft of access card information as grand theft and requires the property be taken without the owner’s consent. Section 530.5, subdivision (c) does not define its crimes as grand theft, and has no requirement that the information be acquired or retained without the owner’s consent. The court further determined that section 530.5 addressed harms much broader than theft, and applying Proposition 47 to section 530.5 was inconsistent with the purpose of the initiative. The trial court’s denial of relief was affirmed.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B279393.PDF