P. v. Ochoa

Filed 1/18/17 P. v. Ochoa CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
GILBERT OCHOA,
Defendant and Appellant.
B265361
(Los Angeles County
Super. Ct. No. GA095685)
APPEAL from an order of the Superior Court of Los
Angeles County. Dorothy L. Shubin, Judge. Affirmed.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Mary Sanchez and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________

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Defendant and appellant Gilbert Ochoa appeals from an
order denying his motion to recall his sentence under Penal Code
section 1170, subdivision (d).1 Ochoa contends the court erred in
denying resentencing because his section 484e, subdivision (d)
felony offense for unlawful acquisition and possession of access
card account information fell under the recall provisions of
Proposition 47, the Safe Neighborhoods and Schools Act
(§ 1170.18, subds. (a)–(e)). We disagree and affirm.
BACKGROUND
On March 10, 2015, the Los Angeles County District
Attorney filed a one-count information against Ochoa charging
him with felony theft in violation of section 484e, subdivision (d)
for presenting an officer with a credit card not belonging to him
as a form of identification. On April 24, 2015, Ochoa filed a
motion to set aside the information under section 995, arguing
the district attorney had introduced insufficient evidence at the
preliminary hearing to charge him with a felony. The court
denied Ochoa’s motion. Following the denial, Ochoa pleaded no
contest and the court sentenced him to 16 months in state prison.
On June 9, 2015, Ochoa filed a motion to recall his sentence
under section 1170, subdivision (d). The court denied his motion.
Ochoa appealed.
DISCUSSION
The question whether a felony conviction for grand theft
under section 484e, subdivision (d) is eligible for reduction to a
misdemeanor under Proposition 47 has divided many of our sister
courts in the state, and our Supreme Court has granted review in
1 Undesignated statutory references are to the Penal Code.

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several of these cases. (See People v. Grayson (2015) 241
Cal.App.4th 454, review granted Jan. 20, 2016, S231757
(Grayson); People v. Cuen (2015) 241 Cal.App.4th 1227, review
granted Jan. 20, 2016, S231107 (Cuen); People v. Romanowski
(2015) 242 Cal.App.4th 151, review granted Jan. 20, 2016,
S231405 (Romanowski); People v. King (2015) 242 Cal.App.4th
1312, review granted Feb. 24, 2016, S231888 (King); People v.
Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9,
2016, S232212 (Thompson).) We agree with the reasoning of
three of those courts—Grayson, Cuen, and King—in concluding
that section 484e, subdivision (d) offenses are not eligible for
reduction to misdemeanors under Proposition 47.
Proposition 47 requires that nonserious, nonviolent crimes
like petty theft and drug possession be charged and punished as
misdemeanors rather than felonies. (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) Among
other amendments to the Penal Code, the initiative added section
490.2, subdivision (a), which states, “Notwithstanding Section
487[2] or any other provision of law defining grand theft,
obtaining any property by theft where the value of money, labor,
real or personal property taken does not exceed nine hundred
fifty dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor.” (§ 490.2, subd. (a) [inapplicable
exceptions not quoted].)
Section 484e is “part of a comprehensive statutory scheme
which punishes a variety of fraudulent practices involving access
2 With exceptions not relevant here, section 487 defines
grand theft as occurring “[w]hen the money, labor, or real or
personal property taken is of a value exceeding nine hundred fifty
dollars ($950).”

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cards.” (People v. Molina (2004) 120 Cal.App.4th 507, 512; see
§§ 484d–484j.) Section 484e, subdivision (d) focuses specifically
on the unauthorized acquisition or possession of access card
account information with the intent to use it fraudulently, not on
the theft of “money, labor, real or personal property” valued less
than $950, which is the crux of the section 490.2, subdivision (a)
offense. (Couzens et al., Cal. Practice Guide: Sentencing Cal.
Crimes (The Rutter Group 2015) Reduction of Penalties, § 25:4.)
Subdivision (d) thus provides, “Every person who acquires or
retains possession of access card account information with
respect to an access card validly issued to another person,
without the cardholder’s or issuer’s consent, with the intent to
use it fraudulently, is guilty of grand theft.”
Did Proposition 47, through section 490.2, reduce every
grand theft offense under section 484e, subdivision (d) to a
misdemeanor if the value involved can be shown to be less than
$950?
In interpreting a voter initiative like Proposition 47, “we
apply the same principles that govern statutory construction.”
(People v. Rizo (2000) 22 Cal.4th 681, 685 (Rizo); People v. Canty
(2004) 32 Cal.4th 1266, 1276 (Canty).) “ ‘ “Our role in construing
a statute is to ascertain the Legislature’s intent so as to
effectuate the purpose of the law.” ’ ” (Canty, at p. 1276.) We
begin by examining “the language of the statute enacted as an
initiative, giving the words their usual, ordinary meaning.”
(Ibid.) We construe the statutory language in the context of the
statute as a whole as well as the overall statutory scheme (Rizo,
supra, at p. 685), while also giving “ ‘significance to every word,
phrase, sentence, and part of an act in pursuance of the
legislative purpose.’ ” (Canty, supra, at p. 1276.) “If the language

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is clear and unambiguous, we follow the plain meaning of the
measure.” (Ibid.) However, “ ‘the “plain meaning” rule does not
prohibit a court from determining whether the literal meaning of
a measure comports with its purpose or whether such a
construction of one provision is consistent with other provisions
of the statute.’ ” (Ibid.) Finally, “[w]e do not presume that the
Legislature performs idle acts, nor do we construe statutory
provisions so as to render them superfluous.” (Shoemaker v.
Myers (1990) 52 Cal.3d 1, 22.) And we must avoid any
construction that renders related statutes a nullity. (People v. Le
(2000) 82 Cal.App.4th 1352, 1359; see People v. Tanner (1979) 24
Cal.3d 514, 520.)
In Romanowski, Division Eight of this district declared that
theft of access card account information under section 484e,
subdivision (d) falls within the initiative and is to be treated no
differently than other theft offenses eligible for reduction to
misdemeanors under Proposition 47. (Romanowski, supra, 242
Cal.App.4th at p. 154, review granted.) The court reasoned that
because “grand theft involving property valued at less than $950
is a misdemeanor, and acquiring or retaining possession of access
card information is defined as grand theft, then acquiring or
retaining possession of access card information valued at less
than $950 is a misdemeanor.” (Romanowski, at p. 156.) In
Thompson, Division Four of this district agreed with Romanowski
that “[t]he plain language of section 490.2, subdivision (a)
unequivocally expresses an intention that Proposition 47 apply to
all Penal Code sections defining ‘grand theft,’ ” including section
484e, subdivision (d). (Thompson, supra, 243 Cal.App.4th at
pp. 418–419, review granted.)

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The key to the Romanowski court’s analysis is its implicit
assumption that the value of the access card information is less
than $950, even as it acknowledged that “section 484e,
subdivision (d) requires no proof of actual loss and valuing the
mere acquisition and possession of access card information may
be difficult.”3 (Romanowski, supra, 242 Cal.App.4th at p. 159,
review granted.) Thompson made the presumption explicit by
holding “that the value of access card account information is
necessarily less than $950 because the intrinsic value of
acquiring and retaining access card account information is
minimal, unless used.” (Thompson, supra, 243 Cal.App.4th at
p. 423, review granted.)
Our colleagues in Division Six of this district took a
different approach in Grayson, finding that sections 490.2 and
487 presume a quantifiable monetary loss, which is not
contemplated or even relevant to an offense under section 484e,
subdivision (d). (Grayson, supra, 241 Cal.App.4th at p. 459,
review granted.) Describing the elements of a section 484e,
subdivision (d) offense, Grayson observed, “It is not necessary
‘that anyone actually be defrauded or actually suffer a financial,
legal, or property loss as a result of the defendant’s acts.’
[Citations.] Section 484e(d) ‘punishes the theft of an access card
[or information] with the intent to use it.’ [Citation.] It does not
punish the use of the card to acquire ‘money, goods, services, or
any other thing of value.’ ” (Ibid.) The court noted the absence of
3 Romanowski dismissed the access card valuation problem
with the suggestion that the black market price of the access card
information might be used to determine whether a section 484e
offense should be a felony or a misdemeanor. (Romanowski,
supra, 242 Cal.App.4th at p. 158, review granted.)

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any “authority suggesting the electorate intended to value the
risk of [access card theft] at $950 or less,” and concluded: “the
essence of a section 484e(d) violation is the acquisition or
retention of access card information with the intent to use it
fraudulently. [Citation.] Section 490.2 does not incorporate the
‘acquisition’ or ‘retention’ language of section 484e(d). Nor does it
refer specifically to section 484e(d) or any part of the
‘ “comprehensive statutory scheme which punishes a variety of
fraudulent practices involving access cards.” ’ ” (Ibid.)
Similarly, the court in Cuen found section 1170.18,
subdivision (a) to be unambiguous in its omission of the theft of
access card information from its list of several theft-related
offenses. (Cuen, supra, 241 Cal.App.4th at p. 1231, review
granted.) The court further found the application of section
490.2, subdivision (a) to theft of “money, labor, real or personal
property” to be unambiguous. (Ibid.) Refusing to stretch the
definition of “personal property” to include access card
information, Cuen held that “[t]heft of intangible access card
account information presents a qualitatively different personal
violation than theft of more tangible items.” (Ibid.; see also
People v. Molina, supra, 120 Cal.App.4th at pp. 518–519
[“Although access card account information is not defined in the
statute, the plain and commonsense meaning of the phrase
includes the name of the cardholder, the account number, the
expiration date and the magnetic stripe on the back of the card”].)
Finally, in King, Division Two of this district found the
language of section 484e, subdivision (d) to be “a clear and
unambiguous expression of the Legislature’s intent to punish (as
a felony) the mere unlawful acquisition or possession of an access
card or account information with the intent to use it fraudulently,

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with no added value or use elements.” (King, supra, 242
Cal.App.4th at p. 1318, review granted.) As King explained,
sections 490.2, subdivision (a) and 484e, subdivision (d) define
and punish two fundamentally different offenses: While section
490.2, subdivision (a) defines petty theft according to the value of
the property taken (that is, less than $950), section 484e,
subdivision (d) defines grand theft with reference to the
acquisition or possession of access card account information with
fraudulent intent. (Id. at p. 1316.) Section 484e, subdivision (d)
contains no reference to taking property or items of value; indeed,
the value of the acquisition or possession of access card account
information or of the information itself is not even an element of
the offense.4 (Ibid.) As King notes, however, use of an access
card to obtain “money, goods, services, or anything else of value”
is separately punishable under section 484g, which contains the
valuation element notably missing from section 484e,
subdivision (d).5 (Ibid.) King concluded that to apply section
4 King found “no language in sections 490.2 or 1170.18 that
suggests an intent to set punishment for violating section 484e,
subdivision (d) according to the ‘street value’ of credit cards and
account information,” thus rejecting the Romanowski and
Thompson courts’ approach of placing a valuation on the card or
account information itself to bring section 484e, subdivision (d)
grand theft under the ambit of Proposition 47. (King, supra, 242
Cal.App.4th at p. 1317, review granted.)
5 Section 484g provides in relevant part: “Every person
who, with the intent to defraud, (a) uses, for the purpose of
obtaining money, goods, services, or anything else of value, an
access card or access card account information that has been
altered, obtained, or retained in violation of Section 484e . . . or
(b) obtains money, goods, services, or anything else of value by

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490.2 to section 484e, subdivision (d) would require the court to
insert an element of valuation into the latter provision, thereby
effectively nullifying section 484e, subdivision (d) by
decriminalizing the unauthorized acquisition or possession of
access card account information with fraudulent intent. (Id. at
p. 1317.) This our colleagues in Division Two refused to do.
We, too, decline to insert a valuation element into the
definition of a section 484e, subdivision (d) offense, and we reject
the Romanowski and Thompson courts’ presumption that access
card information is necessarily worth less than $950 because
valuation of an intangible such as information may be highly
variable or impossible.
As part of a statutory scheme “intended to protect innocent
consumers from the injury, expense, and inconvenience arising
from the fraudulent use of their access card account information”
(People v. Molina, supra, 120 Cal.App.4th at p. 516), section 484e
describes a theft offense that does not depend on the value of the
property to establish a violation. Accordingly, for all the reasons
set forth in Grayson, Cuen, and King, we conclude that Ochoa’s
felony conviction for grand theft under section 484e,
subdivision (d) is not eligible for resentencing as a petty theft
under Proposition 47.
representing without the consent of the cardholder that he or she
is the holder of an access card and the card has not in fact been
issued, is guilty of theft. If the value of all money, goods,
services, and other things of value obtained in violation of this
section exceeds nine hundred fifty dollars ($950) in any
consecutive six-month period, then the same shall constitute
grand theft.”

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.

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