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Name: People v. Thompson
Case #: B261625
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/24/2015
Subsequent History: Review granted 3/9/2016: S232212

Possession of access card information is subject to reduction to a misdemeanor under Proposition 47. In 2011 Thompson pleaded no contest to grand theft (Pen. Code, § 484e, subd. (d)) and was sentenced to prison. After the passage of Proposition 47 in November 2014, Thompson petitioned to have his felony reduced to a misdemeanor (Pen. Code, § 1170.18). The trial court denied the petition, finding his offense ineligible for reduction. Thompson appealed. Held: Reversed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. It also added Penal Code section 490.2, which provides that, notwithstanding section 487, or any other provision of law defining grand theft, obtaining any property by theft is a misdemeanor where the value of the property taken does not exceed $950. Section 484e, subdivision (d) provides that it is grand theft to acquire or retain another person’s access card account information without the account holder’s consent with the intent to use it fraudulently. The “grand theft” defined in section 484e, subdivision (d) is subject to reduction based on section 490.2, as its plain language unequivocally expresses the intent that Proposition 47 apply to all Penal Code sections that define “grand theft,” not just those theft provisions that are based on value (disagreeing with contrary holdings in People v. Cuen (2015) 241 Cal.App.4th 1227 and People v. Grayson (2015) 241 Cal.App.4th 454.) This is evident from the Proposition 47 official ballot pamphlet which states the measure would limit when theft of property valued at $950 or less could be charged as grand theft and that such offenses would no longer be charged as grand theft simply because of the type of property involved. Further, if it was intended that theft under section 484e, subdivision (d) be excluded from Proposition 47, section 490.2’s introductory language would not be so broad.

The value of access card account information was necessarily less than $950 because the intrinsic value of acquiring and retaining access card account information is minimal, unless used. Penal Code section 484g prohibits the use of access cards to defraud and punishes such use as grand theft only when the value of the property illegally acquired exceeds $950 in a six-month period. It therefore resolves the dissonance between sections 484e, subdivision (d) and 484g to include section 484e, subdivision (d) within the coverage of Proposition 47 where the amount taken is $950 or less. “[A]n individual who takes an access card or access card account information and uses it to purchase property that exceeds $950 can still be punished for grand theft under section 484g.” Here, Thompson’s use of the access card involved less than $950 and was therefore a misdemeanor (disagreeing with the “black market” valuation method enunciated in People v. Romanowski (2015) 242 Cal.App.4th. 151). [Editor’s Note: After this case was decided, the California Supreme Court granted review in Cuen (S231107), Grayson (S231757), and Romanowski (S231405) on 1/20/2016.]