People v. Chi CA2/6

Filed 9/22/20 P. v. Chi CA2/6 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B283968 (Super. Ct. No. 2017008363) Plaintiff and Appellant, (Ventura County)

v. OPINION FOLLOWING MIGUEL ANGEL CHI, TRANSFER FROM SUPREME COURT Defendant and Respondent.

The People appealed the trial court’s order dismissing the three counts against Miguel Angel Chi for felony misuse of personal identifying information of another (Pen. Code, § 530.5, subd. (a)).1 After we affirmed the order, the California Supreme Court granted review. (People v. Chi (May 29, 2018, B283968) [nonpub. opn.], review granted Aug. 8, 2018, S249660.)

All statutory references are to the Penal Code. Citations 1

to Penal Code section 530.5, subdivision (a) shall appear as section 530.5(a).

Following its decision in a related case, People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez), the Supreme Court transferred the matter back to this court with directions to vacate our prior opinion and to reconsider the cause in light of Jimenez. Having done so, we conclude Jimenez requires reversal of the trial court’s order of dismissal. We therefore reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY On three occasions, Chi went into a commercial establishment during normal business hours and fraudulently used another person’s credit cards to make purchases valued at $950 or less. Specifically, Chi used the cards to purchase $251.55 worth of merchandise from Kohl’s, $578 worth of merchandise from Home Depot and some beverages from Stagecoach Liquor Store. The People filed a complaint charging Chi with three felony violations of section 530.5(a) for misuse of the victim’s personal identifying information plus a misdemeanor count of receiving stolen property (§ 496, subd. (a)). (People v. Chi, supra, B283968.) At the preliminary hearing, the magistrate declined to hold Chi to answer for the three section 530.5(a) charges. Relying primarily upon People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), the magistrate determined Chi’s use of the credit cards was analogous to the fraudulent use of a check, and that the identity theft violations “under the case law as it stands . . . are not eligible to be charged as [section] 530.5 felonies.” (People v. Chi, supra, B283968.) The People rejected the magistrate’s invitation to reduce the charges to misdemeanor shoplifting under section 459.5. Instead, they filed an information which again included the three felony section 530.5(a) counts. Chi moved to set aside the