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Name: People v. Truong
Case #: B263744
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/05/2017
Summary

Defendant cannot be convicted of acquisition or possession of access card account information (Pen. Code, § 484e, subd. (d)) and receiving stolen property (Pen. Code, § 496) based on the acquisition or possession of the same property. Police executed a search warrant at Truong’s home and found stolen credit cards and a list of Wells Fargo customers and their account numbers. She was convicted of acquisition or possession of access card account information (Pen. Code, § 484e, subd. (d)), fraudulent possession of identifying information of multiple persons (identity theft) (Pen. Code, § 530.5, subd. (c)(3)), and two counts of receiving stolen property (one count for the cards and one count for the account information). She raised a number of issues on appeal, including an argument that it was improper to convict her of both access card theft and receiving the same property. Held: Reversed on this point. Penal Code section 496, subdivision (a) provides that “no person may be convicted both [of receiving stolen property] and the theft of the same property.” Section 484e is “one of seven statutes imparting special statutory definitions of ‘theft’ that apply in the context of access card offenses.” (People v. Love (2008) 166 Cal.App.4th 1292, 1299.) Section 484e categorizes acquisition or possession of access card account information as “grand theft.” Here, the court concluded that Truong’s conviction under section 484e, subdivision (d) constituted a conviction for “theft” of the same property which was the basis for one of the receiving stolen property convictions. Accordingly, one receiving conviction must be reversed.

Defendant was properly convicted of both identity theft (Pen. Code, § 530.5, subd. (c)(3)) and receiving stolen property. Truong also argued that it was improper to convict her of both identity theft and receiving stolen property based on her possession of the Wells Fargo customer account information. The court here disagreed. Section 530.5, subdivision (c)(3) provides that “[e]very person who, with the intent to defraud, acquires or retains possession of the personal identifying information . . . of 10 or more other persons is guilty of a public offense.” Unlike section 484e, section 530.5 is “outside the statutory scheme governing theft offenses.” It is not found in the “Larceny” chapter of the Penal Code; instead, it is found in the chapter dealing with “False Personation and Cheats.” Furthermore, identity theft “shares few, if any, of the elements of theft by larceny.” It does not require an intent to permanently deprive and instead requires an intent to defraud.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B263744.PDF