Filed 5/7/13 P. v. Medina CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----
THE PEOPLE,                                                                          C070686

                   Plaintiff and Respondent,                     (Super. Ct. Nos. CR114211, CR094095,
                                                                               CR096061)
         v.

MARCO ANTONIO MEDINA,

                   Defendant and Appellant.


         After defendant Marco Antonio Medina was found to possess information from
stolen credit and ATM cards, a jury found him guilty of fraudulent possession of an
access card (Pen. Code,1 § 484e, subd. (d) -- count 1); and receiving stolen property
(§ 496, subd. (a) -- count 2).
         On appeal, defendant claims the prohibition upon dual convictions for theft and
receipt of the same property bars him from being convicted of both charges. The People
concede defendant’s conviction on count 2 was improper, and we agree.
                                                  BACKGROUND
         Oscar Ruiz, an acquaintance of defendant’s family, discovered one morning that
someone had stolen his wallet from the glove box of his truck. In his wallet was his bank
credit card and his credit union ATM card. Ruiz reported the theft to police.



1        Further unspecified statutory references are to the Penal Code.

                                                             1
         Later that day, deputies encountered defendant walking with Jasmeet Samra across
a motel parking lot toward a fast food restaurant. Samra told deputies his identification
was in the motel room, and they all went back to the room. In a trash can in the motel
room, deputies found Ruiz’s stolen credit card and his ATM card. A scrap of paper in the
room had the letters “Muf” and “Jess”; defendant’s nickname is “Muffin Man” and
another person in the room when deputies arrived was named Jessie.
         In defendant’s pants pocket was a card key that appeared identical to the motel
room card key in Samra’s possession and a folded piece of paper with Ruiz’s name and
the account information, pin number and expiration date from Ruiz’s credit and ATM
cards.
         Defendant was charged with acquiring Ruiz’s card access information without his
consent and with intent to defraud (§ 484e, subd. (d) -- count 1), and with receiving
stolen property, i.e., Ruiz’s stolen cards (§496, subd. (a) -- count 2).
         A jury found him guilty of both charges. The trial court ultimately selected the
receiving stolen property charge as the primary conviction, sentenced defendant to prison
for the upper term of three years, and committed him to jail under section 1170,
subdivision (h); it also sentenced defendant to a three-year (upper) term on the theft
conviction, to be served concurrently.2
                                        DISCUSSION
         Courts have long held that one cannot be convicted of theft and receipt of the same
property. (See People v. Love (2008) 166 Cal.App.4th 1292, 1298.) The Legislature
codified this common law rule in section 496, subdivision (a), which states in pertinent
part: “A principal in the actual theft of the property may be convicted pursuant to this



2     Defendant’s probation in two other cases was terminated by virtue of his
conviction in the present case, and he was sentenced on those two cases in the same
proceeding.

                                               2
section. However, no person may be convicted both pursuant to this section and of the
theft of the same property.” (See People v. Garza (2005) 35 Cal.4th 866, 871.)
        Section 496 plainly applies when a defendant is convicted of “theft.” Section
484e, subdivision (d) is one of seven statutes imparting special statutory definitions of
“theft” that apply in the context of access card offenses. (See §§ 484, 484d–484j.) Under
section 484e, subdivision (d), a defendant is “guilty of grand theft,” if he or she “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.” The crime of possessing access card account information
does not require that the information actually be used or that the account of an innocent
consumer actually be charged or billed. (People v. Molina (2004) 120 Cal.App.4th 507,
516.)
        Considering that sections 496 and 484e, subdivision (d) are within the same
statutory scheme and use the same term (“theft”), we presume that the Legislature
intended section 496, subdivision (a) to apply to section 484e, subdivision (d). (See
Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 371; cf. People
v. Love, supra, 166 Cal.App.4th at p. 1299 [§ 496, subd. (a) applies to § 484g, subd. (a)].)
        Because section 496 prohibits a defendant from being convicted of both “theft”
and receipt of the same property, we must determine what “property” is at issue when a
defendant commits theft under section 484e, subdivision (d). By the plain language of
the statute, there is only one reasonable conclusion: the “property” is the “card account
information” that defendant intended to use fraudulently. Here, the jury found defendant
possessed the account information from Ruiz’s credit card and ATM card for a fraudulent
purpose, and also found defendant had received the stolen credit card and ATM card.
These represent the same “property,” because it is the account information present in and
on the card, not the plastic that contains it, which has value. Other courts have also
rejected the notion that “access card account information” in section 484e, subdivision

                                              3
(d) should be construed as meaning “something other than the access card itself.” (E.g.,
People v. Molina, supra, 120 Cal.App.4th at pp. 517-519.)
         The parties agree that, under these circumstances, the remedy for defendant’s
having been improperly convicted of both theft and receipt of the same property is to
strike his receiving stolen property conviction on count 2. (See, e.g., People v. Love,
supra, 166 Cal.App.4th at pp. 1300-1301.) We agree, and shall direct the trial court to do
so.
         In view of our conclusion, we do not address defendant’s alternative contention
that section 654 should have applied to stay his sentence on the receiving stolen property
count.
                                       DISPOSITION
         Defendant’s conviction on count two is reversed and the corresponding sentence is
vacated. The matter is remanded for resentencing, and the trial court is directed to
prepare an amended abstract of judgment accordingly. The trial court shall forward a
certified copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation and to the Yolo County Sheriff’s Department. The judgment is affirmed in
all other respects.



                                           ROBIE        , Acting P. J.



We concur:



         MURRAY          , J.



         DUARTE         , J.

                                              4
