Filed 10/19/15

                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                       DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B262126
                                                          (Super. Ct. No. NA099665)
     Plaintiff and Respondent,                              (Los Angeles County)

v.

ERNEST GRAYSON,

     Defendant and Appellant.



                  Ernest Grayson seeks safe haven in the shadow cast by Proposition
47. (See Pen. Code, § 1170.18.)1 He was convicted of seven violations of section
484e, subdivision (d) (section 484e(d)) – unauthorized acquisition or retention of
access card account information of another.2 He was sentenced to two years in
county jail on each count; the terms were ordered to run concurrently. The trial
court denied appellant's post-judgment petition to reduce the offenses to
misdemeanors. (§ 1170.18, subds. (a)-(b).)


         1
             All statutory references are to the Penal Code.
         2
          An access card is "any card, plate, code, account number, or other means of
account access that can be used, alone or in conjunction with another access card, to
obtain money, goods, services, or any other thing of value, or that can be used to
initiate a transfer of funds, other than a transfer originated solely by a paper
instrument." (§ 484d, subd. (2).)
              Section 484e(d) defines each of appellant's offenses as "grand theft."
Section 490.2, adopted as part of Proposition 47, states that notwithstanding any
other provision defining grand theft, the theft of money, labor or property valued at
$950 or less shall be considered misdemeanor petty theft. (Id., subd. (a).) But
appellant did not take the victims' money, labor or property. He possessed access
card account information which posed a threat of identity theft and harm to the
victims. Because section 484e(d) does not require that victims actually be
defrauded or suffer a monetary loss, we conclude it falls outside the scope of
section 490.2. Accordingly, we affirm.
                                       FACTS
              Police officers apprehended appellant while he was driving a stolen
vehicle. A search of the backpack found inside the vehicle yielded three access
cards and four access account profiles that did not belong to appellant. The account
profiles were from hotel files containing the victims' addresses and photocopies of
their identification and access cards. No monetary losses were reported.
                                   DISCUSSION
              "On November 4, 2014, the voters enacted Proposition 47, 'the Safe
Neighborhoods and Schools Act' . . . , which went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085,
1089.) "Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by certain ineligible defendants.
These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors)." (Id., at p. 1091.)
              Proposition 47 added several sections to the Penal Code, including
section 490.2. (§ 1170.18, subd. (a).) Section 490.2, subdivision (a) provides that
"[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, or real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be



                                          2
considered petty theft and shall be punished as a misdemeanor," unless the person is
otherwise ineligible for misdemeanor sentencing. (See § 1170.18, subds. (a)-(b);
Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2015) § 25:3, pp. 25-6 to
25-7 (Couzens).)
              Appellant was convicted under section 484e(d), which is one of the
statutes defining "theft" in the context of access card offenses. (See §§ 484d-484j.)
It states that "[e]very 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." (§ 484e(d).) Appellant claims that because the value of the
access card account information he possessed was less than $950, his crimes should
be reclassified as misdemeanors based upon section 490.2. The People respond that
section 484e(d) was not affected by section 490.2 because Proposition 47 was not
intended to apply to the identity theft crime covered in section 484e(d). We agree
with the People.
              In distinguishing between grand and petty theft, section 490.2 focuses
on the monetary value of the property taken. It expressly references section 487,
which states that, with certain exceptions, grand theft is committed "[w]hen the
money, labor, or real or personal property taken is of a value exceeding nine
hundred fifty dollars ($950)." (Id., subd. (a).) The exceptions include, inter alia,
agricultural products, automobiles and firearms. (Id., subds. (b)-(d).) Under
Proposition 47, the taking of these items is no longer considered grand theft based
strictly upon their character. (§ 490.2, subd. (a).) The crimes are misdemeanors
unless the value of the property taken exceeds $950. (Ibid.; Couzens, supra, at
§ 25:4, p. 25-26.)
              Although section 490.2 purports to apply to all provisions defining
grand theft, it mentions only section 487. Sections 490.2 and 487, subdivision (a)
are similar in that they refer specifically to the value of the "money, labor, or real or



                                            3
personal property" obtained by the theft. In other words, both statutes presume a
loss to the victim that can be quantified to assess whether the value of the money,
labor or property taken exceeds the $950 threshold. Section 484e(d) does not
contemplate such a loss.
              The elements of a section 484e(d) offense are (1) the acquisition or
retention of the account information of an access card issued to someone else,
(2) without the consent of the cardholder or issuer of the card and (3) with the intent
to use that information fraudulently. (See CALCRIM No. 1952; People v. Molina
(2004) 120 Cal.App.4th 507, 512.) It is not necessary "that anyone actually be
defrauded or actually suffer a financial, legal, or property loss as a result of the
defendant's acts." (CALCRIM No. 1952; see Molina, at pp. 511-516.) Section
484e(d) "punishes the theft of an access card [or information] with the intent to use
it." (Couzens, supra, at § 25:4, p. 25-26.) It does not punish the use of the card to
acquire "money, goods, services, or any other thing of value." (§ 484d, subd. (2);
see Couzens, supra, at § 25:4, p. 25-26 [section 484e(d) does not require "that
goods be actually acquired or attempted to be acquired"].)
              This distinction is underscored by section 484g,3 which makes it a
separate crime for the defendant to actually use the access card or account
information to "obtain[] money, goods, services, or anything else of value." Under
this statute, if the value of the money, goods, services or anything else of value

       3
         Section 484g provides: "Every person who, with the intent to defraud,
(a) uses, for the purpose of obtaining money, goods, services, or anything else of
value, an access card or access card account information that has been altered,
obtained, or retained in violation of section 484e or 484f, or an access card which
he or she knows is forged, expired, or revoked, or (b) obtains money, goods,
services, or anything else of value by representing without the consent of the
cardholder that he or she is the holder of an access card and the card has not in fact
been issued, is guilty of theft. If the value of all money, goods, services, and other
things of value obtained in violation of this section exceeds nine hundred fifty
dollars ($950) in any consecutive six-month period, then the same shall constitute
grand theft."


                                            4
obtained by use of the access card or information exceeds $950 in any consecutive
six-month period, the defendant is guilty of grand theft. (Ibid.) Thus, a defendant
who uses access card information to obtain goods valued at more than $950 may be
charged with grand theft under both section 484e(d) and section 484g. A defendant
who uses the information to obtain goods worth $950 or less is subject to charges of
grand theft under section 484e(d) and petty theft under section 484g. (See People v.
Smith (1998) 64 Cal.App.4th 1458, 1470-1471.)
              Appellant maintains that the harm caused by the unauthorized
acquisition or retention of access card information is minimal, but the possession of
that information with fraudulent intent poses a significant risk of identity theft and
financial loss to the victim. By prohibiting the acquisition or retention of that
information, section 484e(d) "protect[s] innocent consumers from the injury,
expense and inconvenience arising from the fraudulent use of their access card
account information." (People v. Molina, supra, 120 Cal.App.4th at p. 516.)
Appellant cites no authority suggesting the electorate intended to value the risk of
such injury at $950 or less or to otherwise undercut the "broad protection to
innocent consumers" afforded by section 484e(d). (Molina, at p. 519.)
              In sum, the essence of a section 484e(d) violation is the acquisition or
retention of access card information with the intent to use it fraudulently. (See
Couzens, supra, at § 25:4, p. 25-26.) Section 490.2 does not incorporate the
"acquisition" or "retention" language of section 484e(d). Nor does it refer
specifically to section 484e(d) or any part of the "'comprehensive statutory scheme
which punishes a variety of fraudulent practices involving access cards.'" (People
v. Molina, supra, 120 Cal.App.4th at p. 512; People v. Butler (1996) 43 Cal.App.4th
1224, 1232.) We conclude there was no intent to apply section 490.2 to section
484e(d) to reduce the offense to a misdemeanor, and that the trial court properly
determined appellant was ineligible for reduction of his sentence.




                                           5
                                  DISPOSITION
             The order denying the petition for recall of sentence is affirmed.
             CERTIFIED FOR PUBLICATION.




                                         PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                                         6
                                James D. Otto, Judge
                        Superior Court County of Los Angeles
                         ______________________________


             Mae G. Alberto, 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, Senior Assistant Attorney General, Zee Rodriguez
and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
