Defendant who was convicted of theft from an elder or dependent adult (Pen. Code, § 368, subd. (d)) is not eligible for reduction of the offense to a misdemeanor under Proposition 47. In 2006, Soto pleaded guilty to theft from an elder exceeding $400 (Pen. Code, § 368, subd. (d)) after he used his grandmother’s identifying information to open a new credit card on her account and used the card to make unauthorized purchases. In 2017, Soto filed a Proposition 47 petition to reduce his felony conviction to a misdemeanor. The trial court denied the petition, deeming the underlying conviction categorically ineligible for reclassification. Soto appealed. Held: Affirmed. Proposition 47 reduced the punishment for certain theft and drug offenses. It added Penal Code section 490.2, which provides that notwithstanding Penal Code section 487 or any other provision defining grand theft, obtaining any property by theft where the value of the property does not exceed $950 is petty theft and shall be punished as a misdemeanor. Eligible defendants who have already completed a felony sentence may petition to reclassify their convictions as misdemeanors. (Pen. Code, § 1170.18, subd. (f).) While the California Supreme Court has concluded that section 490.2 applies to several types of theft offenses that were not amended by Proposition 47 or listed in section 1170.18, the court has not yet extended section 490.2 to theft crimes that (1) are not classified as grand theft and (2) include additional elements beyond the theft itself (a “theft-plus” offense). The Court of Appeal here concluded that section 490.2 does not extend to theft-plus offenses. Because a violation of section 368, subdivision (d) requires additional elements beyond the theft (that the victim was an elder or dependent adult and that the defendant knew or reasonably should have known that fact) it is outside the scope of section 490.2. The court affirmed the order denying Soto’s petition with prejudice.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D072319.PDF