P. v. Mountford

Filed 3/28/19 P. v. Mountford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID GORDON MOUNTFORD,
Defendant and Appellant.
B286803, B287202
(Los Angeles County
Super. Ct. Nos. BA359842,
BA435045)
APPEALS from orders of the Superior Court of Los Angeles
County, David M. Horowitz, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill, Heather B. Arambarri and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
____________________

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Defendant David Gordon Mountford was convicted of
fraudulent use of personal identifying information and fraudulent
possession of personal identifying information in violation of
Penal Code section 530.5, subdivisions (a) and (c)(2),1 and
offering a false or forged instrument in violation of section 115,
subdivision (a). Following the enactment of Proposition 47,
Mountford filed petitions for resentencing, claiming that his
convictions were eligible for reduction to misdemeanors. The
trial court denied the petitions, finding the convictions ineligible
for resentencing.2
On appeal, Mountford contends that the trial court erred
because his offenses should be treated the same as the theft
offenses enumerated in Proposition 47. We hold that Mountford’s
offenses are ineligible for resentencing under Proposition 47.3
BACKGROUND
I. Mountford’s February 28, 2010 Conviction
(No. B286803)
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We consider the appeals from the denial of both petitions
together, because both involve the same issues.
3 As we discuss below, the issue as to whether a felony
conviction for identity theft under section 530.5, subdivision (a),
can be reclassified as a misdemeanor under Proposition 47 is
currently pending before the California Supreme Court.

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On June 10, 2009, Mountford was an inmate at the Los
Angeles County Men’s Central Jail and was being held in a cell
with inmate John Bettancourt. Sheriff’s deputies heard
Bettancourt yell that Mountford was “stealing his information.”
When the deputies went to investigate, they found the two
inmates arguing. Bettancourt said that Mountford had looked at
Bettancourt’s booking paperwork—documents that contained his
driver’s license and Social Security numbers—and had written
down Bettancourt’s personal information on a piece of paper.
Bettancourt also said that Mountford had flushed that piece of
paper in the toilet. The deputies searched Mountford’s property
and found several pieces of paper with handwritten notes. One
piece of paper was a booking sheet from one of Mountford’s prior
arrests and listed Mountford’s alias. Another piece of paper
contained instructions on acquiring a fraudulent bank account in
another person’s name. Another bore a number that appeared to
be a debit or credit card number.
Deputies also discovered three pieces of a paper that
contained information on other inmates. The first piece of paper
had the birth date, driver’s license number and Social Security
number of inmate John Bowlin. The second piece of paper was a
booking sheet with handwritten notes reflecting the birth date
and Social Security number of inmate Michael Eiring. The third
piece of paper had handwritten notes regarding the booking
number and address of former inmate Miguel Mancia. Bowlin
told the deputies that he did not know Mountford and had not
given him his personal information. Eiring said that he had
given Mountford his personal information because Mountford had
promised him a job once he was released from jail.

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On October 30, 2009, the People charged Mountford with
identifying information theft with a prior identity theft
conviction, in violation of section 530.5, subdivision (c)(2). The
People also alleged that Mountford had served four prior prison
terms within the meaning of section 667.5, subdivision (b). On
February 18, 2010, Mountford pleaded no contest to the charged
offense, and the trial court dismissed the prior conviction
allegations. The court then sentenced Mountford to the middle
term of two years in state prison.
II. Mountford’s August 3, 2015 Conviction (No. B287202)
On September 8, 2013, Mountford was arrested by sheriff’s
deputies following a vehicle pursuit. Inside the vehicle, deputies
discovered a blank quitclaim deed with Samantha Greer’s notary
stamp and signature on it, and a number of forged documents—
including a quitclaim deed—with Valentina Andreetta’s name on
it. When deputies spoke to Andreetta, she stated that she did not
know Mountford and had not quitclaimed her residence to him.
She said that her residence had been burglarized and documents
may have been taken at that time. She added that she had
allowed a friend to stay with her, and the friend may have known
Mountford. Deputies also spoke to Greer, who stated that the
signature on the blank quitclaim deed was not hers, and she
never notarized the Andreetta quitclaim deed. A title search of
Andreetta’s property revealed a quitclaim deed in Mountford’s
name.4
4 We grant Mountford’s August 16, 2018 request to
augment the record with copies of the probation officer’s report
and forged quitclaim deed.

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On April 3, 2015, the People filed a felony complaint
against Mountford, accusing him of procuring and offering a false
or forged instrument (§ 115, subd. (a); count 1), two counts of
identity theft (§ 530.5, subd. (a); counts 2 & 4), and two counts of
forgery (§ 470, subd. (a); counts 3 & 5). The complaint alleged
seven prior felony convictions within the meaning of
section 667.5, subdivision (b).
On July 2, 2015, Mountford pleaded no contest on counts 1
and 2 in exchange for 16-month concurrent sentences on the two
counts. At the August 3, 2015 sentencing hearing, Mountford
agreed to make restitution to Andreetta in the amount of
$4,184.04. The trial court sentenced him to the low term of 16
months on the two counts and dismissed the remaining counts
pursuant to the plea agreement.
III. Mountford’s Proposition 47 Petitions
On October 16, 2017, Mountford petitioned for resentencing
pursuant to Proposition 47 as to both cases. In the first petition,
he sought to reduce the February 28, 2010 conviction to a
misdemeanor. In the second, he sought to reduce the August 3,
2015 convictions of “P.C. 470 & P.C. 530.5” to misdemeanors
(although he was not convicted on § 470 forgery charges but for
offering a false or forged instrument in violation of § 115).
On October 27, 2017, Mountford filed a motion to reduce a
charge to a misdemeanor pursuant to Proposition 47 as to the
August 3, 2015 section 530.5 conviction. Underneath the section
number, he wrote, “Get Credit.” He also filed a second
Proposition 47 petition as to the section 530.5 conviction.
At the November 16, 2017 hearing on the petitions, the
People objected to granting the petitions. The trial court denied

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the petitions on the ground the identity theft convictions were not
eligible for Proposition 47 relief. Mountford timely appealed as to
both petitions.
DISCUSSION
I. Relevant Section 530.5 Provisions
Under section 530.5, subdivision (a), “[e]very person who
willfully obtains personal identifying information . . . of another
person, and uses that information for any unlawful purpose,
including to obtain, or attempt to obtain, credit, goods, services,
real property, or medical information without the consent of that
person, is guilty of a public offense . . . .” If convicted under this
subdivision, the defendant “shall be punished by a fine, by
imprisonment in a county jail not to exceed one year, or by both a
fine and imprisonment, or by imprisonment pursuant to
subdivision (h) of Section 1170.”
Under section 530.5, subdivision (c)(1), “[e]very person who,
with the intent to defraud, acquires or retains possession of the
personal identifying information . . . of another person is guilty of
a public offense . . . .” If convicted under this subdivision, the
defendant “shall be punished by a fine, by imprisonment in a
county jail not to exceed one year, or by both a fine and
imprisonment.” Under subdivision (c)(2) of section 530.5, a
person who violates subdivision (c)(1) and “has previously been
convicted of a violation of this section, upon conviction therefor
shall be punished by a fine, by imprisonment in a county jail not
to exceed one year, or by both a fine and imprisonment, or by
imprisonment pursuant to subdivision (h) of Section 1170.”

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II. Proposition 47 Overview
In November 2014, California voters enacted Proposition
47, The Safe Neighborhoods and Schools Act. (People v. Gonzales
(2017) 2 Cal.5th 858, 863.) One purpose of Proposition 47 is “ ‘to
reduce the number of nonviolent offenders in state prisons,
thereby saving money and focusing prison on offenders
considered more serious under the terms of the initiative.’
[Citations.] [Proposition 47] also expressly states an intent to
‘[r]equire misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless the
defendant has prior convictions for specified violent or serious
crimes.’ ” (Gonzales, supra, at p. 870.)
Proposition 47 reduced certain theft-related offenses from
felonies or wobblers to misdemeanors, unless the offenses were
committed by certain ineligible offenders. (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1091.) To that end, Proposition 47
created the new crime of shoplifting, which is defined as
“entering a commercial establishment during regular business
hours with the intent to commit ‘larceny’ of property worth $950
or less.” (People v. Gonzales, supra, 2 Cal.5th at p. 862; see
§ 459.5, subd. (a).) Section 459.5, subdivision (b), expressly limits
charging on shoplifting: “Any act of shoplifting as defined in
subdivision (a) shall be charged as shoplifting. No person who is
charged with shoplifting may also be charged with burglary or
theft of the same property.” (See Gonzales, supra, at p. 863.)5
5 Proposition 47 did not amend section 459, which states in
part: “Every person who enters any house, room, apartment . . .
with intent to commit grand or petit larceny or any felony is
guilty of burglary. . . .”

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Under Proposition 47, a defendant may be eligible for
misdemeanor resentencing or redesignation under section
1170.18 if the offense would have been a misdemeanor had
Proposition 47 been in effect at the time of the offense, and he or
she would have been guilty of a misdemeanor under Proposition
47.6 (§ 1170.18, subds. (a) & (f); People v. Gonzales, supra, 2
Cal.5th at pp. 863, 875.) For eligible convictions, resentencing or
redesignation under Proposition 47 “is required unless ‘the court,
in its discretion, determines that resentencing the petitioner [or
reclassifying the conviction as a misdemeanor] would pose an
unreasonable risk of danger to public safety.’ (§ 1170.18,
subd. (b).)” (Gonzales, supra, at p. 863.)
III. Current Split of Authority
Shortly after Mountford filed his opening brief in appeal
No. B286803, the California Supreme Court granted review in
6 Under section 1170.18, subdivision (a), “[a] person who,
on November 5, 2014, was serving a sentence for a conviction . . .
of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section . . . had this
act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment
of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of
the Penal Code.” Under section 1170.18, subdivision (f), “[a]
person who has completed his or her sentence for a conviction . . .
of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court
that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as misdemeanors.”

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cases addressing the impact, if any, of Proposition 47 on charges
of unauthorized use and fraudulent possession of personal
identifying information under section 530.5. (See People v.
Jimenez (2018) 22 Cal.App.5th 1282, 1292-1293 [conviction for
unauthorized use of personal identifying information was
properly reduced to misdemeanor shoplifting], review granted
July 25, 2018, S249397 (Jimenez); People v. Sanders (2018) 22
Cal.App.5th 397, 400 [unauthorized use of personal identifying
information is not a theft offense and should not be considered as
petty theft or reduced to misdemeanor], review granted July 25,
2018, S248775 (Sanders).)7 The People urge us to follow
Sanders, as well as People v. Liu (2018) 21 Cal.App.5th 143,
review granted June 13, 2018, S248130 (Liu).8 Conversely,
7 According to the California Supreme Court, Jimenez
presents the following issue: “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?” The case was fully briefed
on November 15, 2018. The court deferred briefing in Sanders
pending its decision in Jimenez.
8 According to the California Supreme Court, Liu presents
the following issue: “For the purpose of determining whether a
conviction for theft of access card information in violation of
Penal Code section 484e, subdivision (d), is eligible to be reduced
to a misdemeanor under Proposition 47 when the information has
been used to obtain property, is the value of the access card
information limited to the fair market value of the information
itself on the black market or can the value of the property
obtained by the use of the information be considered? (See People
v. Romanowski (2017) 2 Cal.5th 903, 914.)” The case was fully
briefed on January 7, 2019.

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Mountford argues that Jimenez, as well as People v. Romanowski,
supra, 2 Cal.5th 903 (Romanowski), are the better cases to follow.
A. Sanders and Liu
In Sanders, supra, 22 Cal.App.5th 397, the defendant used
a credit card she found on the ground to buy cigarettes and a
beverage at a convenience store and to get cash at a fast food
restaurant. The total amount of charges made by the defendant
on the credit card were $174.61. The defendant pleaded guilty to
two counts of commercial burglary (§ 459) and two counts of
identity theft (§ 530.5, subd. (a)). The defendant subsequently
filed a petition under Proposition 47 to reclassify all of her
convictions as misdemeanors and to dismiss the identity theft
counts. The trial court granted the petition as to the burglary
counts, reasoning they qualified as “shoplifting” offenses under
section 459.5, but denied the petition with regard to the
violations of section 530.5. On appeal, the defendant argued that
since the burglary charges had been reclassified as misdemeanor
shoplifting and the amount of goods taken from the merchants
was under $950, the section 530.5 violations must be considered
as petty thefts and thus reduced to misdemeanors and dismissed.
(Sanders, supra, at pp. 399-400.)
The Fourth District disagreed. “Identity theft is not
actually a theft offense,” the court observed. “Rather it seeks to
protect the victim from the misuse of his or her identity.”
(Sanders, supra, 22 Cal.App.5th at p. 405.) Thus, the court held,
the defendant’s violation of the identity theft statute “was not a
theft as it relates to the cardholder. It was an unlawful use, one
of several unlawful uses set forth in the statute. To the extent
there was a theft . . . , it was against the property interest of the

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merchants who were defrauded by [the defendant’s] presentation
of the card as belonging to her, a false pretense.” (Ibid.)
Consequently, while the defendant was entitled to have her
commercial burglary offense reclassified as shoplifting, she was
not entitled to have her nontheft section 530.5 offenses
reclassified under Proposition 47. (Sanders, supra, at p. 406.)
In Liu, supra, 21 Cal.App.5th 143, Division Eight of this
court held that a conviction of identity theft in violation of section
530.5 is not eligible for resentencing under Proposition 47. The
defendant had been convicted of 22 theft-related counts arising
from her scam of offering loan services to immigrants. (Id. at
p. 146.) Of specific relevance here, the jury convicted the
defendant of violating section 530.5, subdivision (c)(3), the
fraudulent acquisition and retention of the personal identifying
information of 10 or more people.9 The trial court denied the
defendant’s petition for resentencing on that count. The Court of
Appeal affirmed. (Liu, supra, at p. 146.)
The Liu court first framed the issue: “We must decide
whether section 530.5 constitutes ‘grand theft’ or ‘obtaining any
property by theft’ within the meaning of section 490.2,
subdivision (a).”10 (Liu, supra, 21 Cal.App.5th at p. 150.) The
9 Section 530.5, subdivision (c)(3), provides: “Every 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, and upon conviction therefor,
shall be punished by a fine, by imprisonment in a county jail not
to exceed one year, or by both a fine and imprisonment, or by
imprisonment pursuant to subdivision (h) of Section 1170.”
10 Section 490.2 addresses petty theft and provides that
“obtaining any property by theft where the value of the money,

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court noted that while “section 484e explicitly defines theft of
access card information as grand theft” “section 530.5 does not
define its crimes as grand theft, but [instead] describes them as
‘public offense[s].’ ” (Id. at p. 151.) Therefore, the court noted,
“section 530.5 addresses harms much broader than theft.” (Id. at
p. 152.) The court concluded: “We are not persuaded that section
530.5 defines a ‘nonserious’ crime within the meaning of
Proposition 47, given the far-reaching effects of the misuse of a
victim’s personal identifying information.” (Id. at p. 153.)
Indeed, although the crime is commonly referred to as
“ ‘identity theft,’ ” the gravamen of a section 530.5 offense is the
unlawful use of a victim’s identity, not theft. (Sanders, supra, 22
Cal.App.5th at p. 400.) To that end, the California Legislature
did not categorize section 530.5 as a theft offense and did not
include it among the offenses listed in title 13, chapter 5 of the
Penal Code entitled “Larceny.” It is instead included in title 13,
chapter 8 of the Penal Code—“False Personation and Cheats.”
(See People v. Truong (2017) 10 Cal.App.5th 551, 561 [violation of
section 530.5 “is not a theft offense”].) Identity theft is also
distinguishable from theft offenses because the potential harm to
victims flowing from the use of personal identifying information
far exceeds the value of any actual property obtained by the
misuse of the information. “ ‘Identity theft victims’ lives are often
severely disrupted.’ ” (People v. Valenzuela (2012) 205
Cal.App.4th 800, 808, quoting Sen. Com. on Public Safety,
Analysis of Assem. Bill No. 2886 (2005-2006 Reg. Sess.) as
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” unless the defendant has
one or more specified prior convictions.

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amended May 26, 2006, pp. O-P.) “ ‘[I]dentity theft in the
electronic age is an essentially unique crime, not simply a form of
grand theft. [¶] . . . Grand theft is typically a discrete event, not
a crime that creates ripples of harm to the victim that flow from
the initial misappropriation.’ [Citation.]” (Ibid.)
B. Jimenez and Romanowski
In Jimenez, supra, 22 Cal.App.5th 1282, Division Six of this
court affirmed a trial court order granting a defendant’s motion
to reduce his convictions for identity theft to misdemeanors. In
Jimenez, the defendant entered a commercial check-cashing
business and cashed two stolen checks valued at less than $950
each. Prosecutors charged the defendant with two counts of
felony identity theft pursuant to section 530.5, subdivision (a).
After he was convicted of both charges, the defendant moved to
reduce the convictions to misdemeanors. The trial court granted
the motion. (Jimenez, supra, at pp. 1285-1286.) The Court of
Appeal affirmed. Relying on Romanowski, supra, 2 Cal.5th 903,
as well as People v. Gonzales, supra, 2 Cal.5th 858 and People v.
Garrett (2016) 248 Cal.App.4th 82, the Court of Appeal concluded
that the defendant’s convictions qualified as misdemeanor
shoplifting offenses under Proposition 47. (Jimenez, supra, at
pp. 1292-1293.)11
11 In People v. Garrett, supra, 248 Cal.App.4th 82, the
defendant entered a store and tried to buy merchandise with a
stolen credit card. (Id. at p. 84.) After pleading no contest to
commercial burglary, the defendant petitioned for resentencing
under Proposition 47. (Id. at p. 86.) The trial court denied the
petition, but the Sixth District reversed, rejecting the
prosecution’s argument that because the defendant intended to

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In Romanowski, supra, 2 Cal.5th 903, the Supreme Court
held theft of access card information in violation of section 484e,
subdivision (d), is not excluded from Proposition 47 relief. In so
holding, the court rejected the prosecution’s argument that the
offense of theft of an access card (§ 484e) was enacted in order to
protect consumers and thus should be exempt from the petty
theft statute (§ 490.2) in Proposition 47. (Id. at pp. 913-914.) The
defendant in Romanowski pleaded no contest to felony theft of
access card information in violation of section 484e, subdivision
commit felony identity theft, the shoplifting statute did not apply.
(Id. at pp. 86-90.) “[E]ven assuming [the] defendant intended to
commit felony identity theft, he could not have been charged with
burglary under . . . section 459 if the same act—entering a store
with the intent to purchase merchandise with a stolen credit
card—also constituted shoplifting under [s]ection 459.5.” (Id. at
p. 88.) Based on this reasoning, the Court of Appeal concluded
that use of a stolen credit card to purchase merchandise valued
at $950 or less constituted shoplifting under section 459.5. (Id. at
p. 90.)
In People v. Gonzales, supra, 2 Cal.5th 858, the defendant
entered a bank and cashed two checks, each valued at less than
$950. (Id. at p. 862.) After pleading guilty to second degree
burglary, the defendant petitioned for resentencing under
Proposition 47. The trial court denied his petition and the Court
of Appeal affirmed, but the Supreme Court reversed. (Ibid.) The
Supreme Court concluded that the electorate “intended that the
shoplifting statute apply to an entry to commit a nonlarcenous
theft. Thus, [the] defendant’s act of entering a bank to cash a
stolen check for less than $950, traditionally regarded as a theft
by false pretenses rather than larceny, now constitutes
shoplifting under the statute. [The d]efendant may properly
petition for misdemeanor resentencing under . . . section
1170.18.” (Ibid.)

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(d), and sought reduction of his sentence pursuant to section
1170.18. (Id. at p. 906.) The trial court denied his petition,
holding that Proposition 47 did not apply to theft of access card
information. Division Eight of this court reversed, holding that
theft in violation of section 484e, subdivision (d), was subject to
Proposition 47 by way of section 490.2, which reduces such a
violation to a misdemeanor if it involves property valued at less
than $950. (Ibid.) The court remanded the case so that the trial
court could determine whether the property involved was valued
at less than $950. (Ibid.) On review, the Supreme Court
affirmed, holding that the theft of access card information as
defined in section 484e, subdivision (d), was subject to
resentencing under Proposition 47. The crime fell within section
490.2, which “reduce[d] punishment for crimes of ‘obtaining any
property by theft’ that were previously punished as ‘grand theft’
when the stolen property was worth less than $950.” (Id. at
p. 909.)
IV. Fraudulent Possession of Personal Identifying
Information in Violation of Section 530.5,
Subdivision (c)(2) (No. B286803)
Although section 530.5, subdivision (c)(2), is not listed in
section 1170.18, nor was it amended by Proposition 47,
Mountford argues that his conviction is eligible for redesignation
as a misdemeanor under Proposition 47’s new petty theft statute,
section 490.2.12 (See Romanowski, supra, 2 Cal.5th at p. 906 [the
12 According to Mountford, whether his identity theft is
construed as petty theft pursuant to section 490.2, or shoplifting
pursuant to section 459.5, his conviction is eligible for
resentencing under Proposition 47.

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defendant convicted of violating § 484e eligible for misdemeanor
resentencing under § 490.2]; see also People v. Martinez (2018) 4
Cal.5th 647, 652 [the defendant convicted of violating Health &
Saf. Code, § 11379 eligible for misdemeanor resentencing under
§ 490.2]; People v. Page (2017) 3 Cal.5th 1175, 1184-1186 [the
defendant convicted of violating Veh. Code, § 10851 eligible for
misdemeanor resentencing under § 490.2]; People v. Soto (2018)
23 Cal.App.5th 813, 822.) We disagree and conclude that,
consistent with Sanders and Liu, Mountford is not entitled to
have his section 530.5, subdivision (c)(2), offense reclassified as a
misdemeanor under Proposition 47.13
As noted above, section 530.5 addresses harms much
broader than theft (Liu, supra, 21 Cal.App.5th at p. 152), and
section 530.5, subdivision (c), has no requirement that the
information be acquired or retained without the consent of its
owner, a hallmark requirement of a theft crime (Romanowski,
supra, 2 Cal.5th at p. 912; see also § 484, subd. (a)). The statute
is intended “to protect the victims of identity fraud, who cannot
protect themselves from fraudulent use of their identifying
information once it is in the possession of another, because they
cannot easily change their name, date of birth, Social Security
number, or address. [Citation.]” (People v. Valenzuela, supra,
205 Cal.App.4th at p. 807.) The harms these victims suffer go
“ ‘well beyond the actual property obtained through the misuse of
the person’s identity. Identity theft victims’ lives are often
severely disrupted,’ ” extending to damage to a victim’s credit
13 In light of the Supreme Court’s pending review of
Sanders and Liu, we cite these cases for their persuasive rather
than precedential value. (See Cal. Rules of Court, rules
8.1105(e)(1)(B), 8.1115(e)(1).)

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which may be difficult to repair, and even the commission of
“ ‘other crimes by using the victim’s identity, causing great harm
to the victim.’ ” (Id. at p. 808.) Given the wide-ranging effects of
the exploitation of a victim’s personal identifying information, we
are not persuaded that section 530.5 defines a “nonserious” crime
within the meaning of Proposition 47.
Neither Romanowski nor Jimenez compels a different
result. In Romanowski, the Supreme Court—faced with a crime
previously classified as grand theft—had to decide whether
stealing a particular type of property could constitute petty theft.
Specifically, the court was tasked with analyzing whether theft of
access cards in violation of section 484e was subject to
misdemeanor reduction pursuant to section 490.2. (Romanowski,
supra, 2 Cal.5th at p. 908.) The answer thus hinged on whether
section 484e was a theft crime. Noting first that section 484e was
defined as “grand theft” (§ 484e, subd. (d)), the court next
observed that “[s]ection 484e also resides in . . . chapter 5 of the
Penal Code, which is titled ‘Larceny.’ ” (Romanowski, supra, at
p. 908.) Based on the statutory definition and chapter placement,
the court concluded: “In just about every way available, the
Legislature made clear that theft of access card information is a
theft crime.” (Ibid.) Unlike section 484e, however, section 530.5
is defined as a “public offense” and contains no references to theft
or its hallmarks. Moreover, as noted above, “[s]ection 530.5 is
placed in the chapter of the Penal Code defining ‘False
Personation and Cheats,’ which includes crimes such as marriage
by false pretenses (§ 528) and falsifying birth certifications and
licenses (§§ 529a, 529.5).” (Liu, supra, 21 Cal.App.5th at p. 151.)
Thus, with regard to misuse of identity, the Legislature has used
“just about every way available,” to make clear that a violation of

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section 530.5 is not a theft offense. (Romanowski, supra, 2
Cal.5th at p. 908; see Sanders, supra, 22 Cal.App.5th at p. 400;
People v. Truong, supra, 10 Cal.App.5th at p. 561.)
Furthermore, Romanowski did not have to determine
Proposition 47 eligibility for “a pure ‘theft-plus’ offense, i.e., one
that is not identified as grand theft and requires additional
necessary elements beyond the theft itself.” (People v. Soto, supra,
23 Cal.App.5th at p. 822.)14 In fact, “[n]othing in Romanowski
. . . suggests that section 490.2 extends to any course of conduct
that happens to include obtaining property by theft worth less
than $950.” (Ibid.) Indeed, as noted by Soto, a different
conclusion would lead to absurd results. For example, robbery is
the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his
will, accomplished by means of force or fear. Theft is a lesser
included offense of robbery. If a robber took property worth less
than $950, an over-expansive reading of Romanowski might
construe this crime as petty theft under section 490.2. “Such a
construction would thwart Proposition 47’s objective to reduce
sentences for nonviolent crimes while shifting spending toward
more serious offenses.” (Id. at p. 823.)15
14 The “theft-plus” offense at issue in Soto was theft from
an elder, in violation of section 368, subdivision (d), that occurred
when the defendant used his grandmother’s birth date and social
security number to obtain a line of credit in her name. (People v.
Soto, supra, 23 Cal.App.5th at p. 816.)
15 People v. Segura (2015) 239 Cal.App.4th 1282 is also
illustrative. There, a defendant convicted of conspiracy argued
that he was eligible for resentencing because he had conspired
with his codefendants to commit a theft. The Fourth District

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In order to find a defendant guilty of violating section
530.5, subdivision (c)(2), the People must prove the defendant
acquired or kept the personal identifying information of another
person, and did so with the intent to defraud another person, and
that the defendant has a prior section 530.5 conviction. (See
CALCRIM No. 2041.) Thus, even if we categorized this
particular crime as a theft offense, these additional elements
render Mountford’s crime a “theft-plus” offense much in the same
way as robbery or conspiracy to commit theft and place his
conviction outside the scope of section 490.2. (See People v. Soto,
supra, 23 Cal.App.5th at p. 824.) In sum, a violation of section
530.5, subdivision (c)(2), is neither defined as a theft offense nor
encompasses conduct that entails theft and nothing more. As a
result, we conclude the crime does not fall within the scope of
section 490.2, subdivision (a), even if the amount obtained is
under $950.16 (See Soto, supra, at p. 824.)
disagreed. Applying Proposition 47 to theft—but not conspiracy
to commit theft—did not lead to an absurd result because
conspiracy crimes “present a greater evil than crimes committed
by an individual,” warranting different treatment. (Id. at
p. 1284.) Here, while theft is typically a discrete event, identity
theft “ ‘creates ripples of harm to the victim that flow from the
initial misappropriation.’ ” (People v. Valenzuela, supra, 205
Cal.App.4th at p. 808.) Consequently, this crime presents a
greater evil than a common theft offense and deserves different
treatment.
16 Nor does the crime fall within the scope of section 459.5.
In Jimenez, the court of appeal held that theft by false
pretenses—and by analogy section 530.5, subdivision (a)—now
constitutes shoplifting under section 459.5, subdivision (a).
(Jimenez, supra, 22 Cal.App.5th at p. 1291, citing People v.

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V. Use of Personal Identifying Information in Violation
of Section 530.5, Subdivision (a), and Offering a
False or Forged Instrument in Violation of
Section 115 (No. B287202)
For the reasons set forth above, we conclude that
Mountford’s conviction of the use of personal identifying
information in violation of section 530.5, subdivision (a), was not
an offense within the scope of Proposition 47. Therefore,
Mountford was not eligible for resentencing on that count.
With respect to Mountford’s conviction of offering a false or
forged instrument in violation of section 115, Mountford contends
he is eligible for resentencing on that count, and the trial court
erred in failing to rule on it. Mountford’s first Proposition 47
Gonzales, supra, 2 Cal.5th at p. 876.) The Court of Appeal
believed the result was mandated because “Jimenez’s conduct is
identical to Gonzales’s conduct. They both entered a commercial
establishment during business hours for the purpose of cashing
stolen checks valued at less than $950 each.” (Jimenez, supra, at
p. 1289, citing Gonzales, supra, at pp. 862, 868-869.) Here,
Mountford’s conduct in no way resembled Jimenez’s or Gonzales’s
conduct. Furthermore, Gonzales established that a charged
violation of section 459, second degree burglary, based upon a
theory that the defendant entered with the intent to cash a stolen
check, would be shoplifting under Proposition 47. (See Gonzales,
supra, at p. 862.) But Mountford was not charged with burglary
or theft. He was charged with and convicted only of acquiring
and retaining possession of personal identifying information of
another person with the intent to defraud.
Given our conclusion that Mountford’s offense is ineligible
for reduction under Proposition 47, there is no need for an
evidentiary hearing to determine whether the value of the
property associated with his offense was less than $950.

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petition referred to two convictions, which he erroneously
identified as “P.C. 470 & P.C. 530.5.” His second petition
referred only to section 530.5. The trial court’s oral ruling
denying the petitions in both cases referred only to section 530.5.
The minute order for the hearing stated that the court found
Mountford’s conviction of violating section 115, subdivision (a),
was an ineligible offense. As Mountford points out, where there
is a conflict between the court’s oral ruling and the minute order,
the oral ruling is controlling. (People v. Farell (2002) 28 Cal.4th
381, 384, fn. 2; People v. Mullins (2018) 19 Cal.App.5th 594, 612.)
Mountford thus requests that we remand the case back to the
trial court for a ruling as to his section 115 conviction.
We conclude that violation of section 115 is not an eligible
offense. Therefore, a remand is unnecessary.
Section 115, subdivision (a), provides: “Every person who
knowingly procures or offers any false or forged instrument to be
filed, registered, or recorded in any public office within this state,
which instrument, if genuine, might be filed, registered, or
recorded under any law of this state or of the United States, is
guilty of a felony.” The section falls within title 7 of the Penal
Code, “Of Crimes Against Public Justice,” chapter 4, “Forging,
Stealing, Mutilating, and Falsifying Judicial and Public Records
and Documents.” Theft falls within Penal Code, title 13, “Of
Crimes Against Property,” chapter 5, “Larceny.”
“ ‘[S]ection 115 was designed to prevent the recordation of
spurious documents knowingly offered for record. [Citation.]’
[Citation.] ‘ “The core purpose of . . . section 115 is to protect the
integrity and reliability of public records.” [Citations.]’ ” (People
v. Denman (2013) 218 Cal.App.4th 800, 808.) It contains no
requirement that the document offered for recording have been

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taken from the owner without the owner’s consent, the hallmark
of theft. (Romanowski, supra, 2 Cal.5th at p. 912.) The crime is
the recordation of the false document itself, not the theft of any
property in order to accomplish the offense or as a result of the
offense. Thus, section 115 does not fall within the scope of
Proposition 47. (See People v. Page, supra, 3 Cal.5th at pp. 1186-
1187 [Proposition 47 applies to offenses criminalizing conduct
constituting theft of property valued at $950 or less].)
No remand is necessary for the trial court to rule on
whether Mountford’s section 115 conviction meets the eligibility
requirements of Proposition 47. As a matter of law, it does not.
(See People v. Lynn (2015) 242 Cal.App.4th 594, 598-599 [where
defendant not ineligible for resentencing as a matter of law,
remand required to determine eligibility for resentencing under
Proposition 36]; cf. People v. Baker (2018) 20 Cal.App.5th 711,
721.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED
JOHNSON, J.
We concur:

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ROTHSCHILD, P. J. WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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