Filed 4/17/18

                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D072875

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCE331514)

MISHA YVANNE SANDERS,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Lisa R.

Rodriguez, Judge. Affirmed.

        Randy Mize, Public Defender, Angela Bartosik, Chief Deputy, Michael Begovich

and Robert L. Ford, Deputy Public Defenders.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H.

Russell, Deputy Attorneys General, for Plaintiff and Respondent.
         In 2014, Misha Yvanne Sanders pleaded guilty to two counts of commercial

burglary (Pen. Code,1 § 459) and two counts of identity theft (§ 530.5, subd. (a)). The

court sentenced Sanders to a determinate term of three years eight months.

         In 2017, Sanders filed a petition under Proposition 47 (Safe Neighborhoods and

Schools Act, § 1170.18) 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" under section 459.5. The court denied

the petition with regard to the violations of section 530.5.

         Sanders appeals contending the offenses under section 530.5 must be deemed

petty thefts since the amounts of money or merchandise taken in the burglaries

(shoplifting) was less than $950. She asserts that in light of the court's opinions in People

v. Page (2017) 3 Cal.5th 1175 (Page) and People v. Romanowski (2017) 2 Cal.5th 903

(Romanowski), we should find the violations of section 530.5 to be theft offenses and

thus subject to the determination they amount to petty theft within the meaning of section

490.2.

         We will find the violations of section 530.5, subdivision (a) are not theft offenses.

They are not specified in section 1170.18, and are not subject to reclassification under

that section. Nor do we believe the decisions in Page, supra, 3 Cal.5th 1175 and

Romanowski, supra, 2 Cal.5th 903 compel adoption of Sanders's interpretation of those




1        All further statutory references are to the Penal Code unless otherwise specified.
                                               2
decisions. Accordingly, we will reject Sanders's contention and affirm the trial court's

decision.

                                STATEMENT OF FACTS

       The facts of the offenses are not in dispute and are taken from the probation

officer's report.

       It is sufficient to note Sanders discovered a credit card on the ground. The card

belonged to someone else. Sanders used the card to obtain cigarettes and a beverage at a

7-11 store. She also obtained cash at a Burger King restaurant. The total amount of

charges made by Sanders on the credit card were $174.61.

                                       DISCUSSION

       Simply put, Sanders contends that since the burglary charges have 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 therefore must be reduced to misdemeanors and dismissed. As we will point out,

even though section 530.5 violations are often referred to as "identity theft," they are not

theft offenses. Theft is not an element of the offense. The offense is not in the theft

chapter (chapter 5) of the Penal Code, but is instead listed in chapter 8 dealing with false

personation. The gravamen of the section 530.5, subdivision (a) offense is the unlawful

use of a victim's identity. Moreover, as we will discuss, there were multiple victims in

the offenses charged. The entry into commercial establishments to obtain property by

false pretenses victimized the merchant, and not the cardholder. The cardholder is a

victim because her identity was unlawfully used.

                                              3
        Additionally, we will point out that section 530.5, subdivision (a) is not one of the

listed offenses in section 1170.18 as being subject to reclassification. We will also note

that section 473 (forgery) as revised in Proposition 47, specifically excludes cases where

the person is convicted of both forgery and identity theft in section 530.5 from the $950

minimum threshold.

                                     A. Proposition 47

        Proposition 47 was approved by the voters in November 2014. The proposition

reduced the punishment for a number of theft related offenses to misdemeanors where the

requisite minimum dollar value of the items taken has not been proved. Additionally,

section 1170.18, subdivision (a) creates a procedure which permits a previously

convicted defendant to petition the trial court for reclassification of the convicted

offenses and for resentencing.

        The court in Page, supra, 3 Cal.5th at pages 1181 to 1182 summarized the

pertinent portions of the reclassification provisions relevant to our analysis. The court

said:

           "Proposition 47's resentencing provision, section 1170.18,
           subdivision (a), provides, in pertinent part: '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 ("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 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, as those
           sections have been amended or added by this act.' The cited
           provisions include section 490.2, subdivision (a), added by
           Proposition 47, which provides in pertinent part: 'Notwithstanding

                                              4
          [Penal Code] 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 . . . .' [¶] Under these provisions, a
          person serving a sentence for grand theft under Penal Code section
          487 or another statute expressly defining a form of grand theft (e.g.,
          Pen. Code, §§ 484e, 487a, 487i) is clearly eligible for resentencing
          under section 1170.18 if he or she can prove the value of the
          property taken was $ 950 or less. (See People v. Romanowski (2017)
          2 Cal.5th 903, 910–914 (Romanowski) [defendant convicted for theft
          of access card information under Pen. Code, § 484e eligible for
          resentencing].)"

Also relevant here is that the proposition amended the forgery statute, section 473, to

make forgeries misdemeanors unless the threshold amount of loss is more than $950.

Subdivision (b) of section 473 provides:

          "(b) Notwithstanding subdivision (a), any person who is guilty of
          forgery relating to a check, bond, bank bill, note, cashier's check,
          traveler's check, or money order, where the value of the check, bond,
          bank bill, note, cashier's check, traveler's check, or money order does
          not exceed nine hundred fifty dollars ($950), shall be punishable by
          imprisonment in a county jail for not more than one year, 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. This
          subdivision shall not be applicable to any person who is convicted
          both of forgery and of identity theft, as defined in Section 530.5."
          (Italics added.)

Under the amended section where a defendant is convicted of both forgery and violation

of section 530.5 the minimum dollar amount for felony classification does not apply.

       Finally, we find it significant that section 530.5 is not one of the listed offenses in

section 1170.18 which is subject to the $950 loss limitation for felony sentencing.


                                              5
Although the absence of specific listing of the offense in section 1170.18 provides some

guidance, we recognize our Supreme Court has applied section 490.2 as created in

Proposition 47 to nonlisted offenses. (Romanowski, supra, 2 Cal.5th 903 [§ 484e]; Page,

supra, 3 Cal.5th 1175 [Veh. Code, § 10851].)

                                B. Romanowski and Page

       Sanders relies heavily on the opinions in Romanowski, supra, 2 Cal.5th 903 and

Page, supra, 3 Cal.5th 1175 for her position that offenses under section 530.5,

subdivision (a) should be treated as theft offenses, at least when the offender uses another

person's identity to obtain small amounts of property from banks and other merchants.

We do not think either case compels or even supports her argument.

       In Romanowski the court dealt with the offense of theft of an access card under

section 484e. The offense is not listed in section 1170.18, however, the court found that

theft of an access card is a form of grand theft. As such, the offense comes within the

scope of section 490.2, created by Proposition 47. (Romanowski, supra, 2 Cal.5th at

pp. 907-908.)

       Section 490.2, subdivision (a) provides:

          "(a) 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."


                                             6
       In Page, supra, 3 Cal.5th 1175, the court addressed a different offense, which was

also an offense not specified in section 1170.18. There the court dealt with Vehicle Code

section 10851, the unlawful taking and driving of a vehicle. Again, the court concluded

that at least as to those cases where the vehicle was taken with the intent to steal it must

fall within the scope of section 490.2. Thus, the court concluded such offenses involving

thefts must be of a vehicle valued greater than $950 in order to be treated as a felony.

          "By its terms, Proposition 47's new petty theft provision, section
          490.2, covers the theft form of the Vehicle Code section 10851
          offense. As noted, section 490.2, subdivision (a), mandates
          misdemeanor punishment for a defendant who 'obtain[ed] any
          property by theft' where the property is worth no more than $ 950.
          An automobile is personal property. 'As a result, after the passage of
          Proposition 47, an offender who obtains a car valued at less than
          $ 950 by theft must be charged with petty theft and may not be
          charged as a felon under any other criminal provision.' [Citation.]"
          (Page, supra, 3 Cal.5th at p. 1183.)

       Both Supreme Court opinions are based on the conclusions that the offenses at

issue were in whole or in part based upon theft from the victim. It is the theft nature of

the offenses that brings the offense within Proposition 47's monetary threshold for felony

punishment.

       As we will discuss below, we are satisfied that section 530.5, subdivision (a) is not

a theft based offense. Theft is not an element of the offense. It is the use of the victim's

identity that supports the application of the statute. Thus, we do not believe either

Romanowski, supra, 2 Cal.5th 903 or Page, supra, 3 Cal.5th 1175 support the appellant's

arguments in this case.




                                              7
                                     C. Identity Theft

       Central to appellant's arguments is the claim that section 530.5, subdivision (a) is

at least partially a theft offense. The argument continues that at least where the victim's

identity is used to obtain property from someone else, it should be treated as a theft

offense subject to section 490.2. That predicate leads appellant to claim that when she

used the victim's card to obtain property from a merchant by false pretenses, she

committed shoplifting under section 459.5 and the use of the card must be treated as petty

theft. The basic problem is appellant's acts of stealing from merchants do not amount to a

theft from the cardholder. The cardholder was harmed by the unlawful use of her card

and thefts from the merchants do not make the cardholder a victim of those thefts.

       Perhaps the confusion which arises in evaluating crimes under section 530.5 is the

fact it is referred to as "identity theft." As the court observed in People v. Truong (2017)

10 Cal.App.5th 551, 561: "Although commonly referred to as 'identity theft' [citation],

the Legislature did not categorize the crime as a theft offense. Thus, while section 484e

is found–along with section 496–in part 1, title 13, chapter 5, 'Larceny,' section 530.5 is

in chapter 8, 'False Personation and Cheats.' " In Romanowski, supra, 2 Cal.5th at pages

908 to 909, the court considered the significance of the legislative decision to place

section 484e in chapter 5. The court found the legislative decision informative and

supportive of the court's ultimate conclusion that theft of an access card was a "grand

theft" offense, subject to the $950 limitation of section 490.2.

       Here the facts of the offenses are not in dispute. Our task is to examine the legal

conclusion regarding the scope of section 530.5, which is subject to our independent

                                              8
review. (People v. Barba (2012) 211 Cal.App.4th 214, 222 (Barba).) In Barba, the court

said:

           " ' " ' "[The court's] role in construing a statute is to ascertain the
           Legislature's intent so as to effectuate the purpose of the law.
           [Citation.]" ' " [Citation.]' [Citation.] ' " ' "[W]e begin with the
           words of a statute and give these words their ordinary meaning.'
           [Citation.] 'If the statutory language is clear and unambiguous, then
           we need go no further.' [Citation.] If, however, the language
           supports more than one reasonable construction, we may consider 'a
           variety of extrinsic aids, including the ostensible objects to be
           achieved, the evils to be remedied, the legislative history, public
           policy, contemporaneous administrative construction, and the
           statutory scheme of which the statute is a part.' [Citation.] Using
           these extrinsic aids, we "select the construction that comports most
           closely with the apparent intent of the Legislature, with a view to
           promoting rather than defeating the general purpose of the statute,
           and avoid an interpretation that would lead to absurd
           consequences.' " ' " (Barba, supra, at p. 222.)

        Section 530.5, subdivision (a) provides:

           "Every person who willfully obtains personal identifying
           information, as defined in subdivision (b) of Section 530.55, 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, 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."

        Section 530.55, subdivision (b) defines "personal identifying information" as:

           "[A]ny name, address, telephone number, health insurance number,
           taxpayer identification number, school identification number, state
           or federal driver's license, or identification number, social security
           number, place of employment, employee identification number,
           professional or occupational number, mother's maiden name,
           demand deposit account number, savings account number, checking
           account number, PIN (personal identification number) or password,
           alien registration number, government passport number, date of

                                              9
           birth, unique biometric data including fingerprint, facial scan
           identifiers, voiceprint, retina or iris image, or other unique physical
           representation, unique electronic data including information
           identification number assigned to the person, address or routing
           code, telecommunication identifying information or access device,
           information contained in a birth or death certificate, or credit card
           number of an individual person, or an equivalent form of
           identification."

       The elements of identity theft include (1) that the person willfully obtain personal

identifying information belonging to someone else; (2) that the person use that

information for an unlawful purpose; and (3) that the person who uses the identifying

information does so without the consent of the person whose personal identifying

information is being used. (Barba, supra, 211 Cal.App.4th at p. 223.)

       Identity theft is not actually a theft offense. Rather it seeks to protect the victim

from the misuse of his or her identity. In People v. Valenzuela (2012) 205 Cal.App.4th

800, the court said:

           "[T]he crimes of identity theft, and complementary statutory
           provisions, were created because the harm suffered by identity theft
           victims went well beyond the actual property obtained through the
           misuse of the person's identity. Identity theft victims' lives are often
           severely disrupted. For example, where a thief used the victim's
           identity to buy a coat on credit, the victim may not be liable for the
           actual cost of the coat. However, if the victim was initially unaware
           of the illicit transaction, the damage to the person's credit may be
           very difficult to repair. The perpetrator could commit other crimes
           by using the victim's identity, causing great harm to the victim.
           Thus, identity theft in the electronic age is an essentially unique
           crime, not simply a form of grand theft." (Id. at p. 808.)

       Our analysis of the statute and the cases interpreting it lead us to conclude Sanders

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

                                               10
there was a theft within the scope of the Proposition 47 limitations in section 490.2, it

was against the property interest of the merchants who were defrauded by appellant's

presentation of the card as belonging to her, a false pretense.

       The crime of shoplifting as defined in section 459.5 was the entry into a

commercial establishment, during regular business hours with the intent to commit theft

of less than $950. The cardholder's property rights were not implicated by that offense,

but her identity was unlawfully used. Appellant has received the benefit of Proposition

47's recasting of certain forms of commercial burglary. She is not, however, entitled to

have her nontheft offenses of violating section 530.5, subdivision (a) reclassified under

Proposition 47. The trial court correctly denied the motion to reclassify and resentence

the "identity theft" counts.

                                        DISPOSITION

       The trial court's order denying the petition to reclassify the section 530.5,

subdivision (a) offenses is affirmed.


                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



HALLER, J.



IRION, J.




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