People v. Grayson

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