May a felony conviction for the unauthorized use of personal identifying information of another (Pen. Code, § 530.5, subd. (a)) be reclassified as a misdemeanor under Proposition 47 on the ground that the offense amounted to Penal Code section 459.5 shoplifting?
Opinion By: Justice Cuéllar (unanimous decision)
Held: A felony conviction for misuse of personal identifying information (Pen. Code, § 530.5, subd. (a)) cannot be reduced to misdemeanor shoplifting under Proposition 47. On two occasions in 2016, Jimenez entered a commercial check-cashing store during business hours to cash a check from OuterWall, Inc., made payable to himself. Each check contained OuterWall’s personal identifying information in the form of an account number. OuterWall had not issued the checks in Jimenez’s name, nor did Jimenez have permission to possess, issue, or use the checks. Jimenez was convicted of two felony counts of misusing personal identifying information (Pen. Code, § 530.5, subd. (a)). In 2017, the trial court granted Jimenez’s motion to reclassify his convictions as misdemeanor shoplifting (Pen. Code, § 459.5) under Proposition 47. The Court of Appeal affirmed. The District Attorney filed a petition for review. Held: Reversed. Proposition 47 added section 459.5, which created the crime of misdemeanor shoplifting and provides that no person charged with shoplifting may also be charged with theft or burglary of the same property. Section 530.5, subdivision (a), prohibits willfully obtaining and using the personal identifying information of another person for an unlawful purpose. Although section 530.5, subdivision (a) is sometimes referred to as “identity theft,” the gravamen of the offense is the unlawful use of a victim’s identity, and it does not mention theft. After analyzing both statutes and applying principles of statutory construction, the Supreme Court concluded section 459.5 does not encompass misuse of identifying information. Sections 459.5 and 530.5 are fundamentally different and reflect different legislative rationales. Section 530.5 addresses harms reaching well beyond theft and, therefore, its purpose reaches far beyond what Proposition 47 pulled into its orbit.
When a defendant is charged with misuse of personal identifying information (Pen. Code, § 530.5, subd. (a)) and the conduct includes an act of shoplifting, section 459.5, subdivision (b) does not preclude the 530.5, subdivision (a) charge. Jimenez argued that his conduct was similar to the conduct of the defendant in People v. Gonzales (2017) 2 Cal.5th 858, and therefore must be charged as shoplifting. The Supreme Court disagreed. In Gonzales, the defendant entered a commercial establishment and cashed two stolen checks containing another person’s bank account information. The Supreme Court held that the defendant’s conviction for burglary was eligible for reduction under Proposition 47 because his conduct constituted shoplifting under section 459.5. Section 459.5, subdivision (b) states that an act of shoplifting as defined in subdivision (a) “shall” be charged as shoplifting and no person who is charged with shoplifting may be charged with theft or burglary of the same property. “What triggers section 459.5, subdivision (b)’s bar is not only whether a defendant’s course of conduct includes an act of shoplifting, but also whether the charged crime is burglary or theft of the same property.” Only if the offense is eligible for reduction under Proposition 47 must a court consider whether a defendant’s conduct fulfills the elements of shoplifting. Section 530.5, subdivision (a) is not a theft offense and contains none of the elements of section 459.5, subdivision (a). The court clarified Gonzales did not hold that the only permissible charge in a case with analogous facts is shoplifting (even when there is no conviction for burglary or theft). Unlike the defendant in Gonzales, Jimenez was not charged with a burglary or theft offense. Forcing the prosecution to charge misdemeanor shoplifting when a defendant’s course of conduct happens to include entry into a commercial establishment with intent to commit larceny would lead to odd results. That Jimenez committed shoplifting in the course of identity theft does not alter the fact that he committed identity theft. The court also distinguished People v. Romanowski (2017) 2 Cal.5th 903. [Editor’s Note: The court disapproved People v. Brayton (2018) 25 Cal.App.5th 734 to the extent it conflicts with the holding in this case.] This case was decided on 3/2/2020.
