Felony conviction for theft of access card information (Pen. Code, § 484e, subd. (d)) is eligible for resentencing under Proposition 47 to misdemeanor petty theft (Pen. Code, § 490.2) if the value of the access card information is $950 or less. Romanowski pleaded no contest to felony theft of access card account information. After Proposition 47 passed, he petitioned to have the felony conviction resentenced to misdemeanor petty theft. The superior court denied the petition, reasoning that Proposition 47 was inapplicable to theft of access card information. Romanowski appealed and the Court of Appeal reversed and remanded for a hearing to determine whether the value of the access card information exceeded $950. The Supreme Court granted review. Held: Affirmed. Proposition 47 reduced a number of drug and theft offenses from felonies or wobblers to misdemeanors and added a mechanism (Pen. Code, § 1170.18) so that eligible individuals who had already been convicted of felony offenses that would have been misdemeanors had Proposition 47 been in effect at the time of the offense could petition to have those felony offenses reduced to misdemeanors. Section 490.2 was added by Proposition 47 and provides that “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor.” (Pen. Code, § 490.2, subd. (a).) Section 484e, subdivision (d) provides that anyone committing theft of access card information “is guilty of grand theft.” After analyzing section 490.2’s language and its statutory context, the Supreme Court concluded “that the statute’s unqualified references to ‘obtaining any property by theft’ and ‘any . . . provision of law defining grand theft’ encompass theft of access card information.”

The value of stolen access card information is determined based on the “reasonable and fair market value” of the property, which requires courts to identify how much the information would sell for on a legal or illegal market. Romanowski argued that the value of access card information should be limited to the value of the plastic the cards were made from. The Attorney General argued that the difficulty in ascertaining the value of access card information is evidence the electorate did not intend for the offense to qualify as petty theft. The Court disagreed with both contentions. The Penal Code’s definition of theft requires courts to determine the value of property obtained by theft based on “reasonable and fair market value.” (Pen. Code, § 484, subd. (a).) Although section 484 states that the fair market value test applies “for the purposes of this section,” courts have required the fair market value test to be used for theft crimes that contain a value threshold. The court saw “no basis for an alternative approach to valuation either in the original statutory scheme or in the provisions enacted by Proposition 47.” While there might not be a legal market for stolen access card information, the reasonable and fair “black market” value can be used. “[O]ther jurisdictions have long used this approach to measure the value of stolen credit cards, stolen money orders, and stolen checks.” (Internal citations omitted.)

An evidentiary hearing may be required to determine whether the value of the property was $950 or less. The value of the stolen access card information was not an element of the offense at the time Romanowski was convicted. Citing Evidence Code section 500, the court concluded that the petitioner bears the burden of proving relevant facts in the context of a section 1170.18 petition to recall a sentence. “In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility . . . . But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal. Rules of Court, rule 4.551(f); [citation].)”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S231405.PDF