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Name: People v. Love
Case #: C055398
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/16/2008

A violation of fraudulent use of a credit card under Penal Code section 484g, subdivision (a) does not require a completed acquisition. Appellant, a dental office receptionist, tried to use a patient’s credit card to buy a gift card, but the store cancelled the order and prevented the gift card from being issued. Appellant argued her conviction had to be reversed because she only committed an attempted fraudulent use of the card. The appellate court affirmed. Section 484g, subdivision (a) has two elements: (1) that defendant use the access card or account information, and (2) that she do so for obtaining something of value. Therefore, a defendant can be convicted of the offense even if she is not successful in obtaining the property. The prohibition of dual convictions for theft and receipt of the same property barred appellant from being convicted of fraudulent use of a credit card and receiving stolen property. Appellant was convicted of both using the victim’s stolen credit card information for obtaining a laptop (Pen. Code, sec. 484g, subd. (a)), and receiving the same laptop as stolen property (Pen. Code, sec. 496, subd. (a)). The court held that one of the two convictions had to be stricken, based on the rule that one cannot be charged with theft and receipt of the same property. Penal Code section 484g, subdivision (a) is a “theft” crime, a special statutory definition of theft in the Penal Code 484 series, so the dual conviction prohibition applies. Since the subject of the “theft” in a Penal Code section 484g crime is the money, goods or services obtained (here, the laptop), appellant cannot be convicted under section 484g as to that money, goods or services, and also under Penal Code section 496 for receiving them. Appellant’s grand theft conviction had to be reduced to misdemeanors because the jury never determined the amount taken. Appellant was also convicted of three counts of theft by use of credit card information (Pen. Code, sec. 484g, subd. (a)) and one count of embezzlement (Pen. Code, sec. 508, statutorily a form of theft under Pen. Code, sec. 490), all sentenced as felony grand theft. Penal Code section 484g, subdivision (a) provides that if the aggregate value of thefts under that section in a six-month period is over $400, the convictions are grand theft, and otherwise they are petty theft. Penal Code section 508 has a similar provision over 12 months for embezzlement from a single employer. The jury here was never asked to determine either a degree of the theft (grand or petty), and it was also never asked to determine the value of the items. Under Penal Code section 1157, a jury’s failure to find the degree of a crime divided into degrees means the crime is deemed of the lesser degree (with exceptions immaterial here). The Court of Appeal invoked that provision, found that these four convictions were misdemeanor petty thefts, and reduced them accordingly.