P. v. Lecou

Filed 10/17/16 P. v. Lecou CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PATRICK ROLAND LECOU,
Defendant and Appellant.
G051781
(Super. Ct. No. 13HF1295)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Thomas A.
Glazier, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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Patrick Roland Lecou appeals from the order denying his petition to have
his conviction for grand theft reduced to a misdemeanor pursuant to Penal Code section
1170.18.1
Lecou argues the trial court erred by concluding the particular species of grand
theft he was convicted of—the crime of selling, transferring, or conveying an access card
with intent to defraud and without the cardholder’s or issuer’s consent (§ 484e, subd. (a)),
does not qualify for resentencing relief. We find no error and affirm the order.
Section 490.2, the statute Lecou relies upon to establish his resentencing
eligibility, applies to theft offenses where the value of money, labor, or property
“obtain[ed] . . . by theft” does not exceed $950. But his offense did not involve obtaining
anything by theft. Instead, he was convicted of selling, transferring or conveying an
access card. Because the crime Lecou committed was not the type described in section
490.2, he made no showing it was eligible for resentencing relief under section 1170.18.
FACTS
On April 17, 2013, Lecou was charged by felony complaint with two
counts of second degree commercial burglary, both involving alleged entry into a Target
store with the intent to commit larceny, in violation of sections 459-460, subdivision (b)
(counts 1 and 2); one count of selling, transferring, or conveying an access card with
intent to defraud in violation of section 484e, subdivision (a) (count 3); and one count of
receiving stolen property in violation of section 496, subdivision (b) (count 4.). The
complaint further alleged Lecou had three prison priors within the meaning of section
667.5, subdivision (b), and that he also had a prior strike conviction of the type described
in sections 667, subdivisions (d) and (e)(1), and 1170.12, subdivisions (b) and (c)(1).
Lecou initially pleaded not guilty to the charges, but in May 2013 he
withdrew his not guilty plea and pleaded guilty to count 1 (alleging he committed second
degree commercial burglary in violation of sections 459-460, subd. (b)), and count 3
1
All further statutory references are to the Penal Code, unless otherwise
indicated.

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(alleging he sold, transferred or conveyed an access card with intent to defraud in
violation of section 484e, subd. (a)). He also admitted the prison and strike priors, and
received a stipulated sentence of three years in prison.
In January 2015, Lecou petitioned to have his convictions on both counts
reduced to misdemeanors, pursuant to section 1170.18. The district attorney opposed the
petition in part, arguing Lecou’s conviction for violating section 484e, subdivision (a),
was not eligible for reduction to a misdemeanor. The trial court agreed, granting Lecou’s
petition only to the extent of his conviction for second degree burglary.
DISCUSSION
Section 1170.18, enacted in 2014 as part of Proposition 47 (People v.
Rivera (2015) 233 Cal.App.4th 1085, 1092), states in pertinent part that “[a] person
currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under [Proposition 47] (‘this act’)
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 . . . this act.” (§ 1170.18, subd. (a).)
Subdivision (b) of section 1170.18 requires the court, “[u]pon receiving a
petition under subdivision (a),” to “determine whether the petitioner satisfies the criteria
in subdivision (a).” (§ 1170.18, subd. (b).)
Lecou contends the trial court erred by concluding his conviction for
violation of section 484e, subdivision (a), was not eligible for resentencing under section
1170.18 because the offense would not have qualified as a misdemeanor under
Proposition 47. We find no error in the court’s ruling.
Section 484e describes several distinct crimes involving access cards and
access card information: subdivision (a), the offense Lecou was convicted of, covers a
“person who, with intent to defraud, sells, transfers, or conveys, an access card, without
the cardholder’s or issuer’s consent”; subdivision (c) covers a “person who, with the

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intent to defraud, acquires or retains possession of an access card without the
cardholder’s or issuer’s consent, with intent to use, sell, or transfer it to a person other
than the cardholder or issuer”; and subdivision (d) covers a “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.” 2
(§ 484e, subds. (a), (c) & (d), italics added.) Although the
offense described in subdivision (c) of section 484e is characterized as a petty theft, the
other offenses, including the one Lecou was convicted of, are characterized as grand
theft.
In arguing that his violation of section 484e, subdivision (a), is eligible for
reclassification as a misdemeanor, Lecou relies on section 490.2—a provision added by
Proposition 47. Section 490.2, subdivision (a), redefines certain theft offenses—even
those expressly characterized as “grand theft”—as misdemeanors if they involve property
valued at less than $950: “Notwithstanding Section 487 or any other provision of law
defining grand theft, obtaining any property by theft where the value of the 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. . . .”
According to Lecou, section 490.2 applies to all “crimes defined as grand
theft” and requires that all such “grand theft” crimes—including his violation of section
484e, subdivision (a)—be redesignated as misdemeanors if the value of the property or
money taken does not exceed $950. But that is not the case.
In fact, section 490.2 does not apply to all crimes defined as “grand theft.”
Instead, it applies “[n]otwithstanding . . . any other provision of law defining grand
2
Subdivision (b) of section 484e covers a “person, other than the issuer, who
within any consecutive 12-month period, acquires access cards issued in the names of
four or more persons which he or she has reason to know were taken or retained under
circumstances which [otherwise violate the statute].”

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theft.” What it applies to is crimes defined by the act of “obtaining . . . property by
theft.” (§ 490.2, subd. (a), italics added.) “Theft,” in turn, is defined in section 484 in
terms of a “person who shall feloniously steal, take, carry, lead, or drive away the
personal property of another, or who shall fraudulently appropriate property which has
been entrusted to him or her, or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, labor or real or
personal property, or who causes or procures others to report falsely of his or her wealth
or mercantile character and by thus imposing upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or property or obtains the labor or
service of another.” (§ 484, subd. (a).)
And section 484e, subdivision (a), does not describe a crime in which
property is obtained by theft. Instead, it describes a crime committed when an access
card is sold, transferred, or conveyed. Completing that crime does not require the person
have obtained anything, by theft or otherwise. Consequently, section 484e, subdivision
(a), is not the type of crime that section 490.2 would reclassify as a misdemeanor if the
value of the property taken was $950 or less.
But even if section 484e, subivision (a), were the type of crime that could,
in theory, be reduced to a misdemeanor under section 490.2, we would reject Lecou’s
contention that it involved property valued at less than $950 in this case. He argues his
offense involved less than $950 because “he used the access card to obtain merchandise
that did not cost more than $950.” But that claim, even if it were supported by evidence
in the record, would not be relevant. The violation of section 484e, subdivision (a), has
nothing to do with the use of an access card to obtain merchandise.
Instead, it is section 484g which makes it a separate crime for a defendant
to actually use the access card or account information to “obtain[ ] money, goods,
services, or anything else of value.” And under that statute, if the value of the money,
goods, services, or anything else of value obtained by use of the access card or

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information exceeds $950 in any consecutive six-month period, the defendant is guilty of
grand theft. (§ 484g.) Thus, a defendant who uses access card information to obtain
goods may be charged with either grand theft or petty theft under section 484g,
depending upon the total value of the goods. Had Lecou been charged with a violation of
section 484g, the value of the goods he obtained using the access card would be the key
to assessing the seriousness of that crime.
By contrast, a violation of section 484e, subdivision (a), is a felony, without
regard to what the defendant may have otherwise done with the card he “sells, transfers,
or conveys.” (§ 484e, subd. (a).) We find no error in the trial court’s denial of Lecou’s
petition to reclassify that offense as a misdemeanor pursuant to section 1170.18.
DISPOSITION
The order is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.

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