Filed 3/8/16 P. v. Shorter CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B263972

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA054743)
         v.

ANTHONY SHORTER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Steven R. Van Sicklen, Judge. Affirmed.

         James Koester, 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, Assistant Attorney General, Mary Sanchez and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       In an information filed by the Los Angeles County District Attorney’s Office,
defendant and appellant Anthony Shorter was charged with three counts of first degree
burglary (counts 1, 2, & 6; Pen. Code, § 459),1 three counts of receiving stolen property
(counts 3, 4, & 7; § 496, subd. (a)), and one count of theft (count 5; § 484e). It was
further alleged as to all counts that appellant had served one prior prison term (§ 667.5,
subd. (b)) and had suffered three prior “strike” convictions (§§ 667, subds. (b)-(j),
1170.12). And, it was alleged as to counts 1 through 6 that appellant suffered three prior
serious felony convictions (§ 667, subd. (a)(1)).
       On September 25, 2003, a jury convicted appellant on all counts, and the three
prior serious felony allegations and “strike” allegations were found true. Appellant’s
total prison sentence was 90 years to life.
       On February 27, 2015, appellant filed a petition for recall and resentencing
pursuant to section 1170.18, subdivisions (a) and (f). The trial court granted his petition
as to counts 3, 4, and 7. It denied the petition as to count 5. Appellant’s total prison
sentence remained 90 years to life.
       Appellant timely filed a notice of appeal. He argues that his theft conviction under
section 484e, subdivision (d) [theft of access cards or account information], must be
reduced to a misdemeanor pursuant to Proposition 47.2
       We affirm.




1      All further statutory references are to the Penal Code unless otherwise indicated.

2       Because this is an appeal from a denial of a petition for recall and resentencing,
the trial court’s adjudication of the underlying conviction is not part of the record. As
such, we have omitted a statement of the facts that led to appellant’s conviction. The
facts are summarized in appellant’s prior appeal. (People v. Shorter (July 7, 2005,
B174700) [nonpub. opn.].)

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                                       DISCUSSION
I. Standard of Review
       In this appeal, we are asked to interpret sections 490.2 and 1170.18. We
independently determine issues of law, including the interpretation and construction of
statutory language. (People v. Love (2005) 132 Cal.App.4th 276, 284.) In so doing, we
keep in mind the following principles:
       “Our role in construing a statute is to ascertain the intent of the Legislature so as to
effectuate the purpose of the law.” (Alford v. Superior Court (2003) 29 Cal.4th 1033,
1040; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 [we interpret an
initiative’s language to effectuate the electorate’s intent].) “‘“When statutory language is
clear and unambiguous, there is no need for construction and courts should not indulge in
it.” [Citation.]’” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) “But if the language is
ambiguous, [the court] consider[s] extrinsic evidence in determining voter intent,
including the Legislative Analyst’s analysis and ballot arguments for and against the
initiative.” (Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space
Authority (2008) 44 Cal.4th 431, 444–445.)
II. Overview of Proposition 47
       Under section 1170.18, the resentencing provision created by the enactment of
Proposition 47, a person currently serving a felony sentence for an offense that
Proposition 47 made a misdemeanor may petition for a recall of that sentence and request
resentencing in accordance with the statutes added or amended by Proposition 47.
(§ 1170.18, subd. (a).) As is relevant to the issues in this appeal, these statutes include
sections 459.5, 473, 476a, 490.2, 496, and 666. (§ 1170.18, subd. (a).) Section 490.2,
also added by Proposition 47, provides, in relevant part: “‘[N]otwithstanding 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 . . . .’”



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III. Applicable Statutes
          Section 487 provides, in relevant part: “Grand theft is theft committed in any of
the following cases: [¶] (a) When the money, labor, or real or personal property taken is
of a value exceeding nine hundred fifty dollars ($950) . . . .” Section 484e, subdivision
(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.”
IV. Analysis
          At issue is whether section 484e, subdivision (d), falls within the scope of section
1170.18. We conclude that it does not.3 While section 1170.18, subdivision (a), clearly
lists several theft-related offenses, it does not include theft of access card information
under section 484e, subdivision (d). (People v. Hendrix, supra, 16 Cal.4th at p. 512.)
          Moreover, section 484e is part of a “‘comprehensive statutory scheme which
punishes a variety of fraudulent practices involving access cards.’” (People v. Molina
(2004) 120 Cal.App.4th 507, 512.) “The Legislature intended to provide broad protection
to innocent consumers.” (Id. at p. 519.) While appellant argues that the voters intended
to prohibit felony punishment for violations of section 484e, subdivision (d), when the
value of the property is not more than $950, (1) we presume that the voters were aware of
existing laws and judicial construction thereof, including section 484e and its broad
protection of consumers (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11), and (2) there
is no evidence that the voters intended for Proposition 47 to undercut this broad
protection to innocent consumers.




3      There is a split of authority as to whether section 490.2 applies to section 484e.
(See People v. Haywood (2015) 243 Cal.App.4th 515, 522, fn. 10.) The issue is pending
before our California Supreme Court. (See, e.g., People v. Cuen (review granted Jan. 20,
2016, G051368).)

                                                4
       We reject appellant’s contention that his crime should be reduced to a
misdemeanor because all theft crimes are covered by section 1170.18. But section 484e
is not purely a theft crime; it covers both acquisition or retention of access card
information. (People v. Molina, supra, 120 Cal.App.4th at p. 516 [“crime is possession
of access card account information with a fraudulent intent” and “does not require that
the information actually be used or that the account of an innocent consumer actually be
charged or billed”].) Thus, even if all theft crimes were within the scope of section
1170.18, which we do not hold, appellant’s crime would still not be included.
       Moreover, it is well-established that a specific statutory provision relating to a
particular subject controls over a more general provision. (Hughes Electronics Corp. v.
Citibank Delaware (2004) 120 Cal.App.4th 251, 270.) Section 484e, subdivision (d), is a
more specific statute, and it describes grand theft without reference to value. It has been
deemed serious enough to trigger felony punishment. (People v. Molina, supra, 120
Cal.App.4th at p. 518.) For this additional reason, appellant’s crime should not be
reduced to a misdemeanor.
       The rule of lenity, “whereby courts must resolve doubts as to the meaning of a
statute in a criminal defendant’s favor,” does not aid appellant. (People v. Avery (2002)
27 Cal.4th 49, 57.) That rule applies “‘only if the court can do more than guess what the
legislative body intended; there must be an egregious ambiguity and uncertainty to justify
invoking the rule.’” (Id. at p. 58.) No such ambiguity or uncertainty exists here.




                                              5
                                  DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                 _____________________________, J.
                                       ASHMANN-GERST


We concur:



______________________________, P. J.
           BOREN



______________________________, J.
           CHAVEZ




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