Filed 2/1/16 P. v. Chilton CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144770
v.
DEANNA LYNN CHILTON,                                                 (Sonoma County
                                                                     Super. Ct. No. SCR-647720)
         Defendant and Appellant.


         Does Penal Code1 section 490.2, subdivision (a), enacted as part of Proposition 47,
reclassify the violation of section 484e, subdivision (d) (§ 484e(d)) as a misdemeanor?
Appellate courts that have considered the question are split.2 We conclude a violation of
section 484e(d) is a misdemeanor.


         1   Further statutory references are to the Penal Code.
         2
         After the briefing was complete, three published cases addressed the question,
and we asked the parties for supplemental briefing. Since then, the Supreme Court has
granted review in all three cases. (People v. Romanowski (2015) 242 Cal.App.4th 151,
review granted Jan. 20, 2016, S231405 [violation of section 484e(d) is now a
misdemeanor provided offense involves property valued at less than $950]; People v.
Grayson (2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757
[Proposition 47 does not affect section 484e(d)]; People v. Cuen (2015) 241 Cal.App.4th
1227, review granted Jan. 20, 2016, S231107 [same].)
      In addition, at least two other courts have weighed in on the issue. (People v. King
(2015) 242 Cal.App.4th 1312 [Proposition 47 does not affect section 484e(d)]; People v.
Thompson (2015) 243 Cal.App.4th 413 [violation of section 484e(d) is a misdemeanor]
(Thompson).)


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          Because the trial court in this case reached the opposite conclusion, we reverse.
                      FACTUAL AND PROCEDURAL BACKGROUND
          On March 12, 2014, defendant Deanna Lynn Chilton was arrested at the Graton
Casino for fraudulent use of an access card. She had entered the casino and tried to
retrieve money from an ATM using a fraudulent access card. When this did not work,
defendant went to the cashier’s cage and requested cash using a Univision MasterCard.
The cashier identified the card as fraudulent after calling the service number on the card.
Sheriff’s deputies searched defendant’s purse and found several access cards, including
18 cards that had no name on them, two cards from closed companies, and three cards
that had fraudulent numbers.3
          On July 11, 2014, the Sonoma County District Attorney filed a two-count
complaint against defendant charging her with, in count 1, acquiring and retaining
possession of access card account information for an access card validly issued to another
person, without consent and with the intent to use it fraudulently (§ 484e(d)), and in
count 2, using, with the intent to defraud and for the purpose of obtaining money, goods,
services, and anything else of value, an access card and access card information that had
been altered, obtained, and retained in violation of sections 484e and 484f (§ 484g, subd.
(a)). As to count 2, it was further alleged the value of all money, goods, services, and
other things of value did not exceed $950. Count 1 was a felony, and count 2 was a
misdemeanor.
          On October 20, 2014, the parties reached a plea agreement, under which defendant
would plead no contest to count 1, violation of section 484e(d), and the prosecutor would
agree to a disposition of three years’ probation with 30 days in county jail and would not
object to reducing the conviction to a misdemeanor after 18 months of successful
probation. The trial court accepted defendant’s plea of no contest to count 1 and set
sentencing for December 17, 2014.


          3   Because defendant entered a plea, the facts are based on the probation officer’s
report.


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       On November 4, 2014, voters passed Proposition 47, the Safe Neighborhoods and
Schools Act (Proposition 47), which went into effect the next day. (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 designates certain drug and theft-
related offenses that had been felonies or wobblers as misdemeanors, except in cases
where the offenses were committed by certain ineligible defendants. (Id. at p. 1091.) As
relevant to defendant’s case, Proposition 47 added section 490.2, which provides,
generally, “obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars . . . shall be punished
as a misdemeanor.” (§ 490.2, subd. (a).)
       Defendant’s sentencing was continued into the next year, and at a hearing on
February 20, 2015, the prosecutor indicated the district attorney would move to withdraw
the plea. Five days later, the district attorney filed the motion to withdraw the plea,
arguing the intervening passage of Proposition 47 rendered the plea agreement
unenforceable because the count to which defendant pleaded guilty was no longer a
felony. The district attorney explained Proposition 47 “result[ed] in a multitude of crimes
being punishable only as misdemeanors when they were previously punishable as
felonies” and acknowledged “section 484e(d) is one of those crimes.”
       Defendant opposed the motion to withdraw the plea, arguing case law did not
provide authority for the remedy sought by the district attorney. She agreed with the
district attorney’s position that Proposition 47 reclassified offenses under section 484e(d)
as misdemeanors and argued her “current conviction should, therefore, be made a
misdemeanor.”
       On April 1, 2015, the trial court held a hearing. At the outset, the court stated
there was “a Prop 47 petition issue,” and it did not believe Proposition 47 applied to
defendant’s conviction. Apparently, there had been previous unreported discussions in
chambers during which the trial court indicated it disagreed with the parties’
understanding that a violation of section 484e(d) was now a misdemeanor under
Proposition 47. It is not clear from the record what the trial court meant by “Prop 47



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petition issue” as the only motion pending was the district attorney’s motion to withdraw
the plea.
       At the hearing, the prosecutor abandoned her original position and agreed with the
trial court that Proposition 47 did not apply to defendant’s conviction under 484e(d). The
prosecutor stated, however, she was prepared to argue the motion to withdraw the plea if
the court changed its mind and determined an offense under section 484e(d) was now a
misdemeanor.
       After hearing the parties’ arguments, the court reaffirmed its belief Proposition 47
did not affect section 484e(d). The court ruled, “The Court is going to deny the Prop 47
petition. . . . [T]he Court does not find that it is Prop 47 eligible and would deny the Prop
47 petition that’s pending.”4
       The trial court then sentenced defendant pursuant to the plea agreement. The court
suspended imposition of sentence and placed defendant on formal probation for three
years. Defendant filed a notice of appeal the next day.
                                      DISCUSSION
       As a preliminary matter, we consider appellate jurisdiction and what exactly
defendant is asking us to review in this appeal. In her statement of appellate jurisdiction,
defendant asserts her appeal is of “[a]n order denying a petition for recall of sentence and
resentencing pursuant to . . . section 1170.18.” After initial review of the record, we
could find no order made after the judgment as required for a petition under section
1170.18, and we asked the parties to address the basis for appellate jurisdiction.
       In response, defendant continues to describe her appeal as relating to “the petition
for recall of sentence and resentencing,” but it does not appear from the record that she
ever filed a petition under section 1170.18. This makes sense because Proposition 47

       4  Again, it is not clear what the trial court meant by “Prop 47 petition.” The court
may have been referring to defendant’s position (and the district attorney’s initial
position) that her conviction under section 484e(d) was now a misdemeanor under
Proposition 47. On the other hand, the Attorney General claims the court used the phrase
“the Prop 47 petition” inaccurately to refer to the district attorney’s motion to withdraw
the plea.


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went into effect before defendant was sentenced. As a result, she was entitled to
application of the law as amended by Proposition 47 at her sentencing. There was no
need for her to “petition” for postjudgment relief from the trial court.5
       Defendant argued below that her conviction should be a misdemeanor based on
Proposition 47. The trial court rejected this argument and treated her conviction under
section 484e(d) as a felony at sentencing. Thus, contrary to defendant’s characterization,
this is an appeal from a judgment of conviction (that is, the order granting probation), not
an appeal from an order on a postjudgment petition. (§ 1237, subd. (a).) Contrary to the
Attorney General’s position, we have appellate jurisdiction to review the judgment. (Cal.
Const., art. VI, § 11, subd. (a); § 1235, subd. (b).)6
       Now that appellate jurisdiction is established, we turn to the main issue in this
appeal, whether section 490.2, as enacted by Proposition 47, reclassified a violation of
section 484e(d) as a misdemeanor.
       “In interpreting a voter initiative . . . we apply the same principles that govern
statutory construction. [Citation.] Thus, ‘we turn first to the language of the statute,
giving the words their ordinary meaning.’ [Citation.] The statutory language must also
be construed in the context of the statute as a whole and the overall statutory scheme.
[Citation.] When the language is ambiguous, ‘we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.’
[Citation.] If a penal statute is still reasonably susceptible to multiple constructions, then




       5 Indeed, there is no “petition” procedure applicable to defendant’s situation. The
petition procedures of section 1170.18 are available to “[a] person currently serving a
sentence for a conviction” (§ 1170.18, subd. (a)) or “[a] person who has completed his or
her sentence for a conviction” (id., subd. (f)), not to persons, like defendant, who had not
yet been sentenced when Proposition 47 went into effect.
       6  The Attorney General also argues defendant had the burden to establish
eligibility for relief under section 1170.18, and she failed to meet her burden. Because
this appeal does not involve a petition under section 1170.18, this argument is without
merit.


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we ordinarily adopt the ‘ “construction which is more favorable to the offender . . . .” ’ ”
(People v. Rizo (2000) 22 Cal.4th 681, 685–686.)
       Section 490.2, subdivision (a), provides, “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, except” in cases where the defendant has a prior disqualifying conviction.
       Section 484e(d) 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.” (Italics added.)
       The plain language of the voter initiative supports the conclusion Proposition 47
applies to violations of section 484e(d). Section 490.2, subdivision (a), expressly applies
to theft crimes notwithstanding “any other provision of law defining grand theft.” Thus,
section 490.2, subdivision (a), is intended to reclassify all grand theft provisions as petty
theft unless the value of the property taken exceeds $950. (Thompson, supra, 243
Cal.App.4th at p. ___ [2015 WL 9437524, *2].) Because section 484e(d) is a “provision
of law defining grand theft,” it follows that section 490.2, subdivision (a), applies to a
section 484e(d).
       The overall statutory scheme and voters’ intent also support this conclusion.
Defendant quotes the “Findings and Declarations” of Proposition 47, which provide
“[t]he People enact the Safe Neighborhood and Schools Act to ensure that prison
spending is focused on violent and serious offenses, maximize alternatives for
nonserious, nonviolent crime, and to invest the saving generated from this act into
prevention and support programs in K-12 schools, victim services, and mental health and
drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)
Further, the “[p]urpose and [i]ntent” of the Proposition 47 is, among other things, to
“[r]equire misdemeanors instead of felonies for non-serious, nonviolent crimes like petty
theft and drug possession, unless the defendant has prior convictions for specified violent


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or serious crimes.” (Id., § 3, p. 70.) Proposition 47 also provides the “act shall be
broadly construed to accomplish its purposes” and “shall be liberally construed to
effectuate its purposes.” (Id., §§ 15 & 18, p. 74.) The offense of acquiring or retaining
access card account information with fraudulent intent where the value of the property
taken does not exceed $950 is a nonserious and nonviolent theft crime. Construing
section 490.2, subdivision (a), as reclassifying a violation of section 484e(d) as petty theft
and a misdemeanor, therefore, serves the purposes of Proposition 47.
       The Attorney General’s arguments against applying Proposition 47 to section
484e(d) are not persuasive. She asserts, “Despite its title, section 484e(d) is not purely a
‘theft’ crime. Rather, the statute criminalizes the unauthorized acquisition or retention of
access card account information with the intent to defraud; it does not require a theft, per
se, or that anyone actually be defrauded or suffer a monetary loss as a result of the
defendant’s acts.” She notes the purpose of section 484e(d) is to protect consumers. But
this argument ignores the fact that section 484e(d) provides that a person who commits
the offense “is guilty of grand theft.” Thus, regardless of the statute’s purpose and
regardless of whether a violation of section 484e(d) is understood to be “purely” a theft
crime or a theft, “per se,” the offense is, by statutory definition, “grand theft.”
(Thompson, supra, 243 Cal.App.4th at p. 422 [rejecting argument that section 484e(d) “is
not a pure theft crime because the essence of the violation is the ‘acquisition or retention’
of access card information”; “regardless of the ‘essence’ of section 484e[(d)], it defines a
grand theft offense”].)
       The Attorney General also argues section 490.2, subdivision (a), does not apply to
defendant’s conviction because a violation of section 484e(d) is “merely the possession
of information” and does not involve “theft” of “money, labor, real or personal property.”
In Thompson, supra, 243 Cal.App.4th 413, the Court of Appeal addressed the question
now before us and rejected a similar argument that “personal property” does not include
access card account information. (See also People v. Kozlowski (2002) 96 Cal.App.4th
853, 869 [intangible PIN code constitutes property for purposes of kidnapping for
extortion].) Writing for the majority in Thompson, Justice Epstein explained: “Access


                                               7
cards and access card account information are personal property. Section 7 provides
definitions for words and phrases used in the Penal Code and defines ‘personal property’
as ‘includ[ing] money, goods, chattels, things in action, and evidences of debt.’
[Citation.] This definition has been broadly interpreted. [Citation.] Additionally,
Black’s Law Dictionary defines ‘personal property’ as ‘[a]ny moveable or intangible
thing that is subject to ownership and not classified as real property.’ ” (Thompson,
supra, 243 Cal.App.4th at p. 419.) Under the Black’s Law Dictionary definition,
intangible access card account information falls within the definition of personal
property. (Ibid.) And, as we have discussed, violation of section 484e(d) constitutes
“grand theft.”
       The Attorney General’s position appears to be that, even though section 490.2,
subdivision (a), is intended to apply to all provisions of law defining grand theft, it does
not apply to section 484e(d) because “grand theft” in violation of section 484e(d) is not
necessarily “theft” for purposes of section 490.2, subdivision (a). This reading of the two
statutes strikes us as strained and unnatural, and Proposition 47 must “be liberally
construed to effectuate its purposes.” (Ballot Pamp., supra, text of Prop. 47, § 18, p. 74.)
Moreover, when a criminal statute is reasonably susceptible to more than one
construction, “we ordinarily adopt the ‘ “construction which is more favorable to the
offender.” ’ ” (People v. Rizo, supra, 22 Cal.4th at pp. 685–686).
       We also reject the argument that section 484e(d) is not affected by Proposition 47
because the more specific statutory provision relating to a particular subject controls over
the more general provision. “The rule is that a ‘ “statute dealing with a narrow, precise,
and specific subject is not submerged by a later enacted statute covering the general
spectrum . . . unless the later statute expressly contradicts the original act or unless that
construction is absolutely necessary in order that all of the words of the later statute have
any meaning at all.” [Citations.]’ [Citation.] Each of these exceptions applies in this
case. The later statute, section 490.2, explicitly sweeps all earlier grand theft provisions
into its application, reclassifying them as petty theft unless the value of the property taken
exceeds $950. And the plain meaning of the statutory language, ‘[n]otwithstanding


                                               8
Section 487 or any other provision of law defining grand theft,’ (§ 490.2, subd. (a))
would be meaningless if it did not apply to all specific grand theft provisions. Therefore,
we cannot construe section 484e, subdivision (d) as a specific provision that controls over
section 490.2, subdivision (a). [Citation.]” (Thompson, supra, 243 Cal.App.4th at p.
419.)
        Finally, we address the Attorney General’s claim that application of section 490.2
to section 484e(d) “would be nonsensical because it is impossible to quantify the value of
access card account information.” Again, we find the reasoning of Thompson persuasive:
        “The value of the access card itself is slight, only the intrinsic value of the
plastic. [Citation.] The account information also has minimal intrinsic value, in
that it is only valuable if used. [Citations.]
        “An independent Penal Code provision, section 484g, prohibits the use of
access card or access card account information with an intent to defraud and
punishes such use as grand theft if the value of all money, goods, services, and
other things of value acquired through use of the card or account information
exceeds $950 in any six-month consecutive period. We note the apparent
dissonance between sections 484e, subdivision (d) and 484g. Acquiring and
retaining access card account information with an intent to defraud, before the
passage of Proposition 47, was punished as grand theft, without regard to value,
but using access card account information was punished as a misdemeanor, unless
the value exceeded $950. . . .[7]
        “We find 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. This finding is consistent with the

        7In Thompson, the court went on to observe, “had [the defendant] been charged
under section 484g, he would have been convicted of a misdemeanor because the value
of the goods he obtained with the access card did not exceed $950.” (Thompson, supra,
243 Cal.App.4th at p. 423.) Here, defendant was originally charged in count 2 under
section 484g for using an access card with intent to defraud, and the value of goods
obtained was alleged not to exceed $950. There is no question this was a misdemeanor.


                                                 9
objectives of Proposition 47 and reconciles any dissonance between sections 484e,
subdivision (d) and 484g. Furthermore, an individual who takes an access card or
access card account information and uses it to purchase property that exceeds $950
can still be punished for grand theft under section 484g.” (Thompson, supra, 243
Cal.App.4th at pp. 422-423.)
       Following Thompson, we conclude “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.) Accordingly, defendant’s conviction under section 484e(d), is now a
misdemeanor pursuant to section 490.2, subdivision (a).
       Given our conclusion, we reverse and remand for resentencing. In her response to
our request for supplemental briefing, the Attorney General belatedly requests that, if we
reverse the judgment, we remand to “to allow the People ‘to withdraw from the plea and
reinstate the previously-dismissed charges . . . .’ ” To the extent the Attorney General
requests an order of remand with particular instructions to the trial court regarding
withdrawal from the plea, we decline the request. We express no opinion on the merit of
a motion to withdraw the plea should the district attorney seek to renew her motion. (Cf.
Harris v. Superior Court (2015) 242 Cal.App.4th 244.)
                                      DISPOSITION
       The judgment is reversed and the case is remanded for further proceedings
consistent with this opinion.




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                                 _________________________
                                 Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.




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