California Court of Appeal Jul 7, 2016 No. E064294Unpublished
Filed 7/7/16 P. v. Lowe CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064294
v. (Super.Ct.No. RIF1401259)
BUDDY LEE LOWE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed with directions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W.
Marshall and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant Buddy Lee Lowe appeals from the denial of his petition for
resentencing under Proposition 47, the Safe Neighborhoods and Schools Act. The trial
court concluded defendant’s felony convictions for second degree burglary of a gas
station (Pen. Code, § 459; all additional statutory references are to the Penal Code unless
(Molina), quoting People v. Butler (1996) 43 Cal.App.4th 1224, 1232; see §§ 484e-484j.)
By adopting section 484e, “The Legislature intended to provide broad protection to
innocent consumers.” (Molina, at p. 519.) The People contend the voters are presumed
to be aware of the broad consumer protection function behind section 484e, and we
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should not impute to the voters an intent to override the Legislature’s intent. But as
already noted, Proposition 47 clearly and unambiguously applies, without exception, to
all theft offenses, including offenses that were previously defined as grand theft.
(§ 490.2, subd. (a).) The voters specified that Proposition 47 is to be “broadly” and
“liberally” construed to effectuate its purposes. (Ballot Pamp., supra, text of Prop. 47,
§ 18, p. 74.) Therefore, unless we can discern a contrary intent, we must presume the
voters intended to reduce to a misdemeanor the offense of acquiring or retaining access
card account information.
Nor are we convinced our interpretation of section 490.2 undermines the intent
behind section 484e. Molina found section 484e, subdivision (d), was enacted “to
provide broad protection to innocent consumers” because the intent to defraud found in
section 484e is broader than the intent to alter a card found in the previous statute.
(Molina, supra, 120 Cal.App.4th at pp. 518-519.) By reducing section 484e,
subdivision (d), from grand theft to petty theft, Proposition 47 merely reduced the
punishment for acquiring or retaining access card account information and did not narrow
the broad scope of the offense.
As for the People’s characterization of section 484e, subdivision (d), as not purely a
theft crime, the People are correct a defendant may violate the statute by acquiring or
retaining access card account information with the intent to defraud, and there is no
requirement a defendant actually use the information and cause a loss. (Molina, supra,
120 Cal.App.4th at p. 516 [§ 484e, subd. (d) “does not require that the information
actually be used or that the account of an innocent consumer actually be charged or
14
billed”].) Fraudulent use of access card account information is a separate crime. (§ 484g.)
However, although mere retention of access card account information with the intent to
use it fraudulently might not fit the ordinary definition of theft (§ 484, subd. (a)), and
access card account information might not fit the ordinary definition of personal property,
we are not free to ignore the fact the Legislature expressly defined the offense as “grand
theft.” (§ 484e, subd. (d), italics added.)
Unlike with count 2, the trial court did not expressly state why it denied
defendant’s petition for resentencing on count 3. Because the People’s opposition to
defendant’s petition only argued the conviction on count 3 was not a qualifying felony,
we assume the trial court denied the petition with respect to count 3 because it concluded
a conviction under section 484e, subdivision (d), does not qualify as petty theft under
section 490.2. On appeal, the People do not argue the order should nonetheless be
affirmed because the value of the property exceeded $950. For the foregoing reasons, we
reverse the order.
As with defendant’s second degree burglary conviction on count 2, the record on
appeal does not reflect the value of the access card account information. On remand, the
trial court shall conduct a hearing to determine in the first instance what that value is and
determine whether defendant poses an unreasonable risk of danger to public safety.
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III.
DISPOSITION
The order denying defendant’s petition for reclassification and resentencing under
Proposition 47 is reversed. On remand, the trial court shall conduct a new hearing to
determine whether the value of the property acquired in counts 2 and 3 did not exceed
$950. If the trial court concludes the value did not exceed $950, and that defendant does
not pose an unreasonable risk of danger to public safety, it shall resentence defendant
pursuant to section 1170.18.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
CODRINGTON J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that second degree burglary based on theft by false pretenses and the crime of acquiring or retaining access card account information are eligible for resentencing under Proposition 47 if the value of the property involved is $950 or less.
Issues
Whether second degree burglary based on theft by false pretenses qualifies as shoplifting under Penal Code section 459.5.
Whether a conviction for acquiring or retaining access card account information under Penal Code section 484e, subdivision (d), qualifies as petty theft under Penal Code section 490.2.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“Defendant’s convictions for second degree burglary and for acquiring or retaining access card account information qualify for resentencing under Proposition 47 if the value of the property defendant acquired did not exceed $950”
“Because defendant entered a gas station with the intent to commit a larceny, his crime satisfied the intent for shoplifting under section 459.5 and he is entitled to reclassification and resentencing under section 1170.18.”
“On its face, section 490.2 applies to all theft convictions if the value of the property acquired did not exceed $950.”