Filed 10/17/17
                              CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Shasta)
                                               ----




THE PEOPLE,                                                      C082556

                 Plaintiff and Respondent,               (Super. Ct. No. 03F2470)

        v.

LEONARD DENNIS WARMINGTON,

                 Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Shasta County, Cara L. Beatty,
Judge. Reversed with directions.

      Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell,
Senior Assistant Attorney General, Max Feinstat, Carlos A. Martinez, and Stephen G.
Herndon, Deputy Attorneys General, for Plaintiff and Respondent.




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        Defendant Leonard Dennis Warmington appeals from the trial court’s order
denying his Penal Code section 1170.181 petition for redesignation of his felony
conviction for embezzlement (§ 503) to a misdemeanor. He contends the trial court erred
in finding his crime was not subject to section 1170.18 relief. We agree and shall reverse
the trial court’s order and remand with instructions to enter an order granting the
requested relief.
                                     BACKGROUND
        In December 2002, defendant, a courtesy clerk at a Redding Walmart, was
discovered to have stolen a television from the store, returned it for a $746.46 Walmart
gift card, and used the card to purchase various items. Confronted by a police officer,
defendant admitted stealing other items from the Walmart, including a recliner chair.
Defendant was ordered to return the items he stole. The value of the items stolen by
defendant and subsequently returned was $851.
        Defendant pleaded no contest to embezzlement in October 2003 and was placed
on three years’ formal probation in November 2003.
        In February 2016, defendant filed a section 1170.18 petition to redesignate his
offense as a misdemeanor. The trial court denied the petition without prejudice to filing a
new petition, on the ground that defendant’s crime was not eligible for relief.
                                       DISCUSSION
        Defendant contends the trial court erred in finding the crime of embezzlement was
not eligible for section 1170.18 relief. We agree.
        The passage of Proposition 47 created section 1170.18, which provides: “A
person who has completed his or her sentence for a conviction, whether by trial or plea,




1   Undesignated statutory references are to the Penal Code.



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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.” (§ 1170.18, subd. (f); see Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, p. 74.)
       Proposition 47 enacted section 490.2, which states in pertinent part:
“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 that such person may instead be
punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior
convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.” (§ 490.2, subd. (a).)
       Section 503 defines embezzlement as “the fraudulent appropriation of property by
a person to whom it has been intrusted.” Section 490a states, “[w]herever any law or
statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or
statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted
therefor.”
       After briefing was concluded, the California Supreme Court decided two cases
addressing sections 490.2 and 490a and their relationship to section 1170.18. (See
People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski); People v. Gonzales (2017)
2 Cal.5th 858 (Gonzales).) We asked for supplemental briefing on these cases. The
Attorney General concedes that the Supreme Court’s decisions “undermine most if not all
of the arguments advanced in the Respondent’s Brief.”
       Romanowski held that theft of access card account information (§ 484e, subd. (d))
was eligible for relief under section 1170.18. (Romanowski, supra, 2 Cal.5th at pp. 905-

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906.) In arguing that section 490.2 did not cover this crime, the Attorney General argued
that section 484e, subdivision (d)2 is not primarily a theft crime “because the statute ‘is
violated when someone acquires or retains possession of access card account
information issued to another person (and with the intent to use it fraudulently).’ ”
(Romanowski, at p. 912.) In rejecting this argument, the Supreme Court noted that taking
the information without the owner’s consent was theft. (Ibid.) Even if the owner initially
gave the access card information to the defendant, wrongful retention of that information
would still be subject to section 490.2.
       “Even when a defendant is voluntarily entrusted with someone else’s access card
information, any attempt to ‘retain[] possession’ of the information ‘without the
cardholder’s or issuer’s consent’ and ‘with the intent to use it fraudulently’ (§ 484e, subd.
(d)) would be a form of embezzlement, which is covered by section 484’s definition of
‘theft.’ (See §§ 503 [‘Embezzlement is the fraudulent appropriation of property by a
person to whom it has been intrusted’], 484 [‘Every person . . . who shall fraudulently
appropriate property which has been entrusted to him or her . . . is guilty of theft’]; see
also People v. Davis (1998) 19 Cal.4th 301, 304 [‘the formerly distinct offenses of
larceny, embezzlement, and obtaining theft by false pretenses were consolidated in 1927
into the single crime of ‘theft’ defined by Penal Code section 484’].) California’s
definition of ‘theft’ also includes theft by false pretenses, which ‘unlike larceny has no
requirement of asportation.’ (People v. Williams (2013) 57 Cal.4th 776, 787; see also
§ 484 [‘Every person . . . who shall knowingly and designedly, by any false or fraudulent




2 Section 484e, subdivision (d) states in pertinent part: “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.”



                                              4
representation or pretense, defraud any other person of money, labor or real or personal
property . . . is guilty of theft’].) So even if we assume that section 490.2 only reduces
punishment for crimes that require the definition set out in section 484, theft of access
card information falls within that definition.” (Romanowski, supra, 2 Cal.5th at pp. 912-
913.)
        In Gonzales, the Supreme Court held that a second degree burglary conviction for
entering a bank to cash a stolen check for less than $950 was subject to the crime of
shoplifting created by Proposition 47, section 459.5.3 (Gonzales, supra, 2 Cal.5th at
p. 862.) The question in Gonzales was whether section 459.5 applied to theft by false
pretenses or was limited to theft by larceny. (Gonzales, at p. 864.) The Supreme Court
noted that cases consistently applied section 490a to the burglary statute, section 459,
replacing section 459’s use of the term “larceny” with the term “theft.”4 (Gonzales, at
p. 867.) Although section 459.5 defined its crime as “shoplifting,” section 490a applied
to it as well. Section 459.5 referred to section 459 and used the term “larceny,”
indicating “the electorate intended ‘larceny’ to have the same meaning in both



3  Section 459.5, subdivision (a) states: “Notwithstanding Section 459, shoplifting is
defined as entering a commercial establishment with intent to commit larceny while that
establishment is open during regular business hours, where the value of the property that
is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any
other entry into a commercial establishment with intent to commit larceny is burglary.
Shoplifting shall be punished as a misdemeanor, except that a person with one or more
prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section
1170.”


4 Section 459 states in pertinent part, “Every person who enters . . . with intent to commit
grand or petit larceny or any felony is guilty of burglary.”



                                              5
provisions.” (Gonzales, at p. 869.) There were no exceptions to section 490a’s provision
that any statutory reference to larceny, embezzlement, or stealing shall be interpreted as
referring to the term “theft.” (Gonzales, at p. 869.) Applying section 490a to section
459.5 was also “consistent with the electorate’s stated reason for enacting Proposition 47.
‘One of Proposition 47’s primary purposes 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.’ [Citation.]” (Gonzales, at
p. 870.)
       Following Gonzales and Romanowski, it is clear that section 503 defines a form of
theft that is covered by section 490.2. As the Supreme Court noted in Romanowski,
section 503 and the theft statute, section 484, use identical language in defining the
offenses. Any doubt that embezzlement is a form of theft is resolved by section 490a, as
interpreted in Gonzales. While section 503 does not define a form of grand theft, it
nonetheless defines a form of theft. Since section 490.2 applies to “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)” (§ 490.2, subd. (a)), it applies to
section 503.
       Since the record clearly shows defendant embezzled less than $950 from Walmart
and he was not otherwise disqualified, his crime was eligible for section 1170.18 relief,
and the trial court was required to “designate the felony offense . . . as a misdemeanor.”
(§ 1170.18, subd. (g).)




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                                     DISPOSITION
       The trial court’s order is reversed. The matter is remanded with directions for the
trial court to enter an order designating defendant’s embezzlement conviction as a
misdemeanor.



                                                   /s/
                                                 Blease, Acting P. J.


We concur:



  /s/
Robie, J.



  /s/
Duarte, J.




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