PEOPLE v. ROMANOWSKI

Respondent’s Petition for Review

Cal.December 22, 2015

Ju the Supreme Court of the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. DANIEL ROMANOWSKI, Defendant and Appellant. $231405 SUPREME COURT DEC 22 2015 Case No._ Frank A. McGuire Clerk Qeputy Second Appellate District, Division Eight, Case No. B263164 Los Angeles County Superior Court, Case No. MA064403 The Honorable Christopher G. Estes, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General SUSAN SULLIVAN PITHEY Supervising Deputy Attorney General MAryY SANCHEZ Deputy Attorney General State Bar No. 162541 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2364 Fax: (213) 897-6496 Email: DocketingLAAWT@édo}.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented ......... cc ccceccceseeneceececeeeeteeseeesesnseeesegueeneesesevauesessaeserssaaneaes 1 Reasonfor Granting Review..........::ccccceesecteeeetereeees cesdeceussesenetecsaeenenntees 1 Statement of the Case.........cccccccceceeecsecensecscececetcteceteeenenseaterssateesnsagaeneeenees2 FNS*000)0|EEEESET SESS ET ESESSSOTESSSSSEOSISSSSOSOSSSSOSTESSSOSOSS 3 This Court shouldgrant review of the Court of Appeal’s decision that the Act applies to section 484e(d), because it creates a conflict with other published opinions on an - important question of statutory interpretation involving PLOPOSItION 47 ooo.cert e ence tees eee ene een eersseseenaeerseseeenseeeneeere 3 CONnCIUSION.......ccccccsccccssceeececceseeeseeeveceeaeeeesenaneceeeeeesesaeanasaeaeanerseseaneeatersegeess 9 TABLE OF AUTHORITIES CASES Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251 vecccccescssssesssseessssesssesssseessseees People v. Butler (1996) 43 Cal. App.4th 1224 ..cccccsssssseessssssesseveneesssesee People v. Cuen (2015) 241 Cal.App.4th 1227 ooo.ececeeeeteeeecnees People v. Floyd (2003) 31 Cal.4th 179 .cccccscssssssssessssssssssesssssssussesnsescessssesess People v. Grayson Page scoceesateeeetieeee 8 cccstesestessee 4.6 ccetatesitesens 2,8 Leeeevevensnatereees 5 (2015) 241 Cal.App.4th 454 oe.Seeeecaneateateceeatcaesseceeneeeseeespassim People v. King (Dec, 2, 2015, B261784) —- Cal. App.4th _ [2015 Cal. App. LEXIS 1100] ...cccccsssscsssseesseceeessneeeeee People v. Molina ccstetsess 2,7,8 (2004) 120 Cal.App.4th 507 ...cescccscscscssessssseessessssusesesseesenees 4,5, 6,8 People v. Park (2013) 56 Cal4th 782...ceceeenseserseeeetseeeeetereeenees Quarterman v. Kefauver (1997) 55 CalApp.4th 1366 00.eceeeereeeenees Robert L. v. Superior Court (2003) 30 Cal4th 894.00cecrererseeeeeeetsaeessierenens ii beeeeteentesensenaes 4 eceeseneseseneneees 5 bieceeeenetenses 4,5 STATUTES Penal Code § ABAeccceccecncete renee tererenestterenesenneeriiesereneeniesiissieesrsesennrerias 3,4,8 § AB4O(d) ooo cececceccceeesteensestestnaeetenessenaeesseeseerseeessersnateseatspassim § ABA oceccecctcecereceneeeceteeeeeeneenneeereecniatscsrssesseersesnsteessseeesseneneaeenggs 7 SBT oiccccccceccetceteetteeeneee reeset tener enaee tees ennteeenneeriestieensreeetenereeneetas 4,5 00]0AEEESSE ESET SSCS TOSOEESSEOOSESSSSOOEOSpassim § 490.2(8) occ cceccccneeecececssececseeceteesreesseesensensieeeseesuseesseeeteeeenines besetseeees 3,6 § 667.5(D) ..cececceeccceeceseeeereeeeeene teense cseecneeneesecseeeestssneeeeeeeseesaeenaeeengenns 2 § LITO 8... cccece cn eereeteeeneeeneee cree cent eeeereeesseeecieenesseeeasereesneeeteeeninens 2 COURT RULES Cal. Rules of Court TUle 8.500 oie ccccccecccccesesccccesscccsuscssecesesseecsetseasecssecesesevseteeesenteseenuanesenss 1 Tule 8.500(D)(1) .... ccc eccecccceeceteceececeeecnrensseresensesnesseeeesescnenasenieeeenseeen 1 OTHER AUTHORITIES CALCRIM NO. 1952. oeccccccecscseevssuececesscaeeecceteceneeeeeesenseeeeseceesentessniseeensesavaneeeensereneees 5 Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text Of Prop. 47, § 3 occcece cnereereerseensseseresteensensestesereecnerirereneeenes 2 Proposition 47 0... cece cece see cssceeresteesecesestesarereecresneeneraeeneseeens 1, 2, 3,4, 8 ill TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The People ofthe State of California request that this Court grant review of the published decision of the Court of Appeal, Second Appellate District, Division Eight, in this matter. (See Cal. Rules of Court, rule 8.500.) The panel’s published opinion reversing the judgmentof the Los Angeles County Superior Court, filed November 13, 2015, is attached to ~ this Petition. ISSUE PRESENTED Whether Penal Code section 490.2, added by Proposition 47 and redefining grand theft to exclude property valued under $950, applies to the theft of access card account information as defined by Penal Code section 484e, subdivision (d)? REASON FOR GRANTING REVIEW Review ofthis case is necessary to secure uniformity of decision and to settle an important question of law. (Cal. Rules of Court, rule 8.500(b)(1).) The Court of Appealheld that Proposition 47 (or “the Act”) reduces the offense of theft of access card account information under Penal Code section 484e, subdivision (d)' (“§ 484e(d),”etc.), to a misdemeanor whenthe theft involves property valued at less than $950. (Slip opn.at pp. 2, 4.) In so doing,the court expressly disagreed with the opinionsin People v. Grayson (2015) 241 Cal-App.4th 454, 458-459 (“Grayson”) and ' All further undesignated code references are to the Penal Code. People v. Cuen (2015) 241 Cal.App.4th 1227, 1231-1232 (“Cuen”),’ which reached the opposite conclusion. (Slip opn. at pp. 2, 5-9; see also People v. King (Dec. 2, 2015, B261784)__ Cal.App.4th __ [2015 Cal. App. LEXIS 1100, * 8] [disagreeing with Romanowski], orderedpublished Dec.10, 2015.) Review ofthis case is necessary to secure uniformity of decision so that trial courts know whether Proposition 47 applies to violations of section 484e(d). This is also an important question of law because it involvesthe interpretation of section 490.2, and whether this newly enacted statute applies to the acquisition and retention of access card information with the intent to use it fraudulently, as set forth in section 484e(d). That the question will be implicated in many cases is exemplified by the number of published opinions addressingit. STATEMENT OF THE CASE Appellant pled no contest to a charge of access card theft, in violation of section 484e(d), and admitted a prior prison termallegation under section 667.5(b). (1CT6-7; Slip opn.at p. 2.) He was sentencedto serve four years in county jail. (ICT8.) After appellant was sentenced, the electorate passed Proposition 47, which reduced certain nonviolent, nonserious crimes fromfelonies to misdemeanors and permitted those serving sentences for felony convictions that would be misdemeanors under the Act to petition for resentencing. (§ 1170.18; see also Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) The Act did not address the crime of access card theft. It did, however, raise the threshold between petty and grand theft to $950. (§ 490.2.) Analogizing to that provision, and arguing that 2A petition for review wasfiled in Cuen on December10, 2015,in §$231107. the value of the access card theft in his case did not exceed $950, appellant filed a petition for resentencing under the Act. The People opposed the petition because the underlying charge was ineligible for relief, and the petition was denied. (1CT 10, 14; Slip opn. at p. 3.) The sentencing court stated that section 484e(d) “focuses on obtaining the access card information with the intent to use it,” and was therefore “more akinto. . . identity theft” than to grand theft. (IRT 2-3; Slip opn. at p. 3.) Appellant appealed, contending that his conviction undersection 484e(d) must be reduced to a misdemeanor pursuant to Proposition 47. (AOB 6-13.) The Court of Appeal agreed, holding that under the plain languageofsection 490.2(a), theft of access card information under section 484e(d) falls under Proposition 47 when the value of the access card information is less than $950. (Slip opn. at pp. 4, 7.) The matter was remandedto the trial court for a determination of the value of the property taken. (Slip opn. at p. 10.) In dicta, the Court of Appeal suggestedthatit was the prosecution’s burden to prove the value of access card information under section 484e(d). (Slip opn. at pp. 8-9.) Following respondent’s petition for rehearing, the Court of Appeal modified its opinion to remove any language suggesting it was the prosecution’s burden to provevalue, and denied the petition for rehearing. ARGUMENT THIS COURT SHOULD GRANT REVIEWOF THE COURTOF APPEAL’S DECISION THAT THE ACT APPLIES TO SECTION 484k(D), BECAUSE IT CREATES A CONFLICT WITH OTHER PUBLISHED OPINIONS ON AN IMPORTANT QUESTION OF STATUTORYINTERPRETATION INVOLVING PROPOSITION 47 Proposition 47 wasintended to apply to petty theft and drug possession crimes, not to identity theft crimes covered undersection 484e. Section 484eis part of a “‘comprehensive statutory scheme which punishes 399 a variety of fraudulent practices involving access cards.’” (People v. Molina (2004) 120 Cal.App.4th 507, 512; People v. Butler (1996) 43 Cal.App.4th 1224, 1232.) Whether the voters intended Proposition 47 to apply to identity theft crimes covered undersection 484eis ultimately a question ofstatutory construction. The Court of Appeal’s decisionthat the Act applied to section 484e(d) misconstruesthe statutory language and thus creates a conflict with other published opinions. Proposition 47 provides, in relevant part: “Notwithstanding Section 487 or any otherprovision of law defining grand theft, obtaining any property by theft where the value of the money,labor, real or personal property taken does not exceed nine hundredfifty dollars ($950) shall be considered petty theft andshall be punished as a misdemeanor.. . .” (§ 490.2.) As pertinent here, grand theft is committed “[wJhen the money, labor, or real or personalproperty takenis of a value exceeding nine hundredfifty dollars ($950).” (§ 487.) Access card theft under section 484e(d), which the Act does not mention, is defined as follows: “Every person who acquires orretains possession ofaccess card account information with respectto an access card validly issued to anotherperson, without the cardholder’s or issuer’s consent, withthe intent to use it fraudulently, is guilty of grand theft.” (§ 484e(d).) The interpretation ofa ballot initiative is governed by the samerules that apply in construingastatute enacted by the Legislature. (Peoplev. Park (2013) 56 Cal.4th 782, 796.) First, the languageof the statute is given its ordinary and plain meaning. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 (“Robert L.”).) Second, the statutory language is construed in the context of the statute as a whole and within the overall statutory schemeto effectuate the voters’ intent. (/bid.) Where the statutory languageis clear and unambiguous,there is no need for statutory constructionor to resort to legislative materials or other outside sources. (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) On the other hand, where the language is ambiguous, a reviewing court will look to “other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” (Robert L., supra, 30 Cal.4that _ p. 900; People v. Floyd (2003) 31 Cal.4th 179, 187-188 [ballot pamphlet information is valuable aid in construing the intent of voters].) The plain language of section 484e(d) demonstratesthat the offense is not primarily a “theft” crime, but rather involves the acquisition or retention of access card information. (See People v. Molina, supra, 120 Cal.App.4th at pp. 516, 519; see also CALCRIM No. 1952.)° As the court in Grayson reasoned,it is not necessary that anyone actually be defrauded or suffer a loss as a result of the defendant’s acts. (Grayson, supra, 241 Cal.App.4th at p. 457, 459; People v. Molina, supra, 120 Cal.App.4th at p. 516.) The language of section 490.2 does not include the “acquisition or retention” language ofsection 484e(d). Moreover, although section 490.2 refers to section 487 and “any other provision of law defining grand theft,” it does notrefer specifically to section 484e(d), or indeed, any part ofthe > CALCRIMNo. 1952 providesin part: The defendant is charged [in Count| with (acquiring/ [or] retaining) the account information of an access card [in violation of Penal Code section 484¢(d)]. To prove that the defendant is guilty of this crime, the People must provethat: 1. The defendant (acquired/ [or] retained) the account information of an access card that was validly issued to someone else; 2. The defendant did so without the consent of the cardholder or the issuer of the card; AND 3. When the defendant (acquired/ [or] retained) the account information, (he/she) intended to use that information fraudulently. “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, supra, 43 Cal.App.4th at p. 1232.) Thus, section 484e(d) does not fall within the meaning of section 490.2. (Grayson, supra, 241 Cal.App.4that p. 460.) In the opinionin this case, however, the Court of Appeal rejected that reasoning, stating that “[t]he plain language”of section 490.2(a) supports the conclusion that section 484e(d) falls under the Act. (Slip opn. at p. 5.) The Court of Appeal here reasoned as follows: (I}f grand theft involving property valued at less than $950is a misdemeanor, and acquiring or retaining possession of access card informationis defined as grand theft, then acquiring or retaining possession of access card information valuedatless than $950 is a misdemeanor. Thus, by its plain terms, section 490.2, subdivision (a) reduces a violation of section 484e, subdivision (d) to a misdemeanorifit involves property valued at less than $950. (Slip opn.at p. 5.) This reasoning is at odds with that of the Grayson court: 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 personal property”obtained bythe theft. In other words,both statutes presumea loss to the victim that can be quantified to assess whetherthe value of the money, labor or property taken exceeds the $950 threshold. Section 484e(d) does not contemplate such a loss. (Grayson, supra, 241 Cal.App.4th at pp. 458-459.) Put differently, Graysondirectly conflicts with the Court of Appeal’s analysis inthis case that the language ofsection 490.2 is “unambiguous and unqualified.” (Slip opn. at pp. 4-5.) Review should be grantedto settle the conflict regarding these differing interpretations of section 490.2. The Court of Appeal here also disagreed with Grayson’s analysis that section 484e(d) does not punish the use of the card to acquire money, labor or property. (Grayson, supra, 241 Cal.App.4th at p. 459.) Graysonrelied on section 484¢, “which makes it a separate crime for the defendantto actually use the access card or account information to ‘obtain{] money, goods, services, or anything else of value.’ (§ 484g.) Underthis statute,if the value of the money, goods, services or anything else of value obtained byuse of the access card or information exceeds $950 in any consecutive six-month period, the defendantis guilty of grand theft.” (Grayson, supra, 241 Cal.App.4th at p. 459.) “Thus, a defendant whousesaccess 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.” ([bid.) The Court of Appeal in this case rejected Grayson’s analysis: “We fail to see how the existence of a separate crime for use ofaccess card information has any impact on whetherthe electorate intended to bring the theft of access card information itself under the umbrella of Proposition 47.” (Slip opn. at p. 7.) The Court of Appeal reasonedthat “the value of the access card information itself’ could “easily” exceed $950 on the “black market.” (Slip opn.at p. 7.) This reasoning, however, wasrecently rejected in People v. King, supra, 2015 Cal. App. LEXISat * 8, which found “no languagein sections 490.2 or 1170.18 that suggests an intent to set punishment forviolating section 484e, subdivision (d) according to the ‘street value’ of credit cards and account information.” Thus, the Court of Appeal’s rejection of Grayson’s analysis is also at odds with King. In enacting the statutory scheme of whichsection 484eis a part, “[t]he Legislature intended to provide broad protection to innocent consumers.” (People v. Molina, supra, 120 Cal.App.4th at p. 519.) The statutory design makes some conductrelating to access cards and account informationpetty theft and other conduct involving access cards and account information grand theft. The Court of Appeal’s analysis ignores that the plain language of section 484e(d) describes conduct that is “grand theft” without respect to any monetary value. Additionally, the Court of Appeal in Cuen observed that “‘[A] specific statutory provision relating to a particular subject controls over a more general provision.’” (Cuen, supra, 241 Cal.App.4th at p. 1231, quoting Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 270.) The Cuen court reasoned that because section 484e(d) “is the more specific statute, and it describes grand theft without reference to value[,]” it should then be “deemed serious enoughto trigger felony punishment.” (Cuen, supra, 241 Cal.App.4th at p. 1232.) The Court of Appeal here did not specifically address this principle of statutory construction. In consequence, lowercourts are left with inconsistent guidance on that point. In sum, there are now three published opinionsthat find that Proposition 47 doesnot apply to violations of section 484e(d): Grayson, Cuen, and King. The Court of Appeal’s decision hereis the outlier, andif not corrected, will sow confusion in thetrial courts. CONCLUSION Respondent’spetition for review should be granted. Dated: December 21, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General SUSAN SULLIVAN PITHEY Supervising Deputy Attorney General MARY SANGHEZ Deputy Attémey General Attorneysfor Respondent MS:mol LA2015601806 61785126.doc CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Roman font and contains 2,341 words. Dated: December 21, 2015 KAMALAD. HARRIS Attorney General of California Deputy Attorney General Attorneysfor Respondent ATTACHMENT 1 (Opinion) Filed 11/13/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL - SECOND DIST SECOND APPELLATE DISTRICT F I L E D DIVISION EIGHT Nov 13, 2015 JOSEPH A. LANE,Clerk cmortelliti Deputy Clerk THE PEOPLE, B263164 Plaintiff and Respondent, (Los Angeles County Super. Ct.No. MA064403) V. DANIEL ROMANOWSKI, Defendant and Appellant. APPEALfrom a judgment ofthe Superior Court of Los Angeles County, Christopher G. Estes, Judge. Reversed and remanded. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. KamalaD. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent. ok KK OK OK On November4, 2014, voters enacted Proposition 47, “The Safe Neighborhoods and Schools Act.” It was intendedto “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated fromthis act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, Proposition 47 reduced most possessorydrug offenses and thefts of property valued at less than $950to straight misdemeanors and created a process for persons currently serving felony sentences for those offenses to petition for resentencing for misdemeanors. (See Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Aug. 2015) p. 6 (hereafter Couzens & Bigelow, Proposition 47).) Of the manyquestions raised by Proposition 47’s passage, we address this one: Did Proposition 47 reduce the offense of theft of access card information under Penal Code section 484e, subdivision (d)! to a misdemeanor, providedthe theft involved property valuedat less than $950? Recently, Division Three of the Fourth District and Division Six ofthis district answered in the negative. (People v. Cuen (Oct. 8, 2015, G051368) __Cal.App.4th [2015 WL 6597437] (Cuen); People v. Grayson (2015) 241 Cal.App.4th 454 (Grayson).) Finding nothing in the statutes enacted or amended by Proposition47 or the voters” intent behind the initiative to suggest theft of access card information should be treated any differently than other theft offenses subject to reduction under Proposition 47, we disagree with Grayson and Cuen. Becausethetrial court found Proposition 47 did not apply, we reverse and remandforthetrial court to determine whether appellant’s theft involved property valuedat less than $950 in order to trigger the resentencing provisions ofProposition 47. PROCEDURAL BACKGROUND . On September 29, 2014, appellant Daniel Romanowskipled no contestto theft in violation of section 484e, subdivision (d) and admitted a prior prison term pursuant to section 667.5, subdivision (b). He was sentenced to four years in county jail, consisting of the upper term ofthree years for the theft and one yearfor the prison term 1 Undesignated statutory citations are to the Penal Code unless otherwise noted. t o enhancement. On March 10, 2015,he filed a petition for resentencing pursuant to Proposition 47. The People opposed, arguing section 484e, subdivision (d) was akin to identity theft and not subject to Proposition 47. Appellant respondedthat a violation of section 484e, subdivision (d) is defined as grand theft and Proposition 47 definesall grand thefts involving property valuedat less than $950 as misdemeanors, so Proposition 47 should apply. The court agreed with the People that section 484e, subdivision (d) was akin to identity theft under section 530.5, which was beyondthe scope of Proposition 47. It therefore denied appellant’s petition. Appellant timely appealed. DISCUSSION As enacted by Proposition 47, section 1170.18 created a procedure by which eligible defendants currently serving felony sentences for certain drug possession and theft offenses maypetition to recall their sentences and seekresentencing to reduce those offenses to misdemeanors. As one court succinctly explained it, “Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance withthe statutes that were added or amended by Proposition47. (§ 1170.18, subd.(a).) Aperson whosatisfies the criteria in section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a misdemeanor. . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of dangerto public safety.’ (§ 1170.18, subd. (b).) Subdivision (c) ofsection 1170.18 defines the term ‘unreasonable risk of danger to public safety,’ and subdivision (b) ofthe statute lists factors the court must consider in determining ‘whether a newsentence would result in an unreasonable risk of danger to publicsafety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.) This case requires us to determinethe effect, if any, of Proposition 47 on the substantive offense of grand theft of access card information defined in section 484e, subdivision (d). Section 484eidentifies four crimes involving access cards and access card information, three of which are deemed grand theft. Subdivision (d) provides, “Every person who acquiresor 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 ofgrandtheft.” (§ 484e, subd. (d), italics added.) Added by Proposition 47, section 490.2, subdivision (a) redefines all grand theft offenses as misdemeanorsif they involve property valued at less than $950: “Notwithstanding Section 487 [(defining grand theft)] or any other provision oflaw defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundredfifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor... .” (Italics added.) Our question is whether section 490.2, subdivision (a) applies to grand theft defined in section 484e, subdivision (d). This is an issue ofinitiative interpretation, and we applythe same rules governing statutory interpretation. (People v. Canty (2004) 32 Cal.4th 1266, 1276; People v. Rizo (2000) 22 Cal.4th 681, 685.) “*“Our role in construingastatute is to ascertain the Legislature’s intent so as to effectuate the purpose ofthe law.”’” (Canty, supra, at p. 1276.) “Ourfirst task is to examine the language of the statute enacted as aninitiative, giving the words their usual, ordinary meaning.” (Ibid) We must construe the languagein the context ofthe statute as a whole and the overall statutory scheme. (Rizo, supra, at p. 685.) We also give “‘significance to every word, phrase, sentence, and partof an act in pursuanceofthe legislative purpose.’” (Canty, supra, at p. 1276.) “If the languageis clear and unambiguous,we followthe plain meaning of the measure.” (/bid.) However,that rule “‘does not prohibit a court from determining whetherthe literal meaning of a measure comports with its purpose or whether sucha construction ofone provision is consistent with other provisions ofthe eee statute.’” ([bid.) When the language ofthe initiative is ambiguous, “‘werefer to other indicia ofthe voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.’” (Rizo, supra, at p. 685.) Theplain languageofsection 490.2, subdivision (a) supports the conclusionthat theft of access card information in section 484e, subdivision (d) falls within Proposition 47. The introductory clause to section 490.2, subdivision (a) is unambiguous and unqualified: “[nJlotwithstanding Section 487 or any other provision oflaw defining grand theft,” theft is a misdemeanorif it involves property valuedat less than $950. Section 484e, subdivision (d) defines acquiring or retaining possession of access card information as grand theft. The legal syllogism is therefore straightforward: if grand theft involving property valued at less than $950 is a misdemeanor, and acquiring or retaining possession of access card informationis definedas grand theft, then acquiring or retaining possessionofaccess cardinformation valuedat less than $950 is a misdemeanor. Thus, by its plain terms, section 490.2, subdivision (a) reduces a violation of section 484e, subdivision (d) to a misdemeanorifit involves property valuedat less than $950. Even if we look beyondthe language of section 490.2, subdivision(a) to voters’ intent behind Proposition 47, we would reach the same conclusion. As noted above, the overall purpose ofthe initiative was to “ensure that prison spendingis focused onviolent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, apd to invest the savings generated from this act into prevention and support programs inK-12 schools, victim services, and mental health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014)text ofProp. 47, § 2, p. 70.) To achieve that end, the measure “lrJequire[s] misdemeanorsinstead of felonies for nonserious, nonviolent crimes like pettytheft and drug possession.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text ofProp. 47, § 3, p. 70.) Theft of access card information under section 484e, subdivision (d) is one such nonserious, nonviolent theft offense, and applying section 490.2, subdivision (a) to reduce qualifying violations of section 484e, subdivision (d) certainly serves the purposeofreducing prison spending on nonviolentoffenders. In reaching the opposite conclusion; the court in Gravson pointed out that section 490.2 “focuses on the monetary value of the property taken” (Grayson, supra, 241 Cal.App.4th at p. 458) and refers to section 487, which provides thata theft is grandtheft when “the money, labor, real or personal property taken is of a value exceeding nine hundredfifty dollars ($950),” withcertain exceptions based on the type ofproperty taken. Accordingtothe court, “both statutes presume loss to the victimthat can be quantified to assess whetherthe value of the money,labor or property taken exceeds the $950 threshold,” whereas section 484e, subdivision (d) “does not contemplate such a loss.” (Grayson, supra, at p. 459; see Cuen, supra, __ Cal.App.4th atp._ [2015 WL6597437, at p. *2].) Butthe effect of section 490.2 plainly is not limited to—or even primarily focused on-——-grand thefts already defined by the value ofthe property taken. If it were, it would duplicate the manytheft statutes, including section 487, subdivision (a), that already draw a line between grand andpetty theft based on the value ofthe property taken. The language and purposeofsection 490.2, subdivision (a), is broader: it covers all theft offenses, notwithstanding section 487 “or anyother provision oflawdefining grand theft” (§ 490.2, subd. (a), italics added). Thus,it applies to thosestatutes defining grand theft based on the type ofproperty taken, suchas the theft of access card information in section 484e, subdivision(d). Even the court in Grayson recognized this concept by pointing outthat the taking of items listed in the exceptions to section 487, subdivision (a), such as agricultural products, automobiles, and firearms,“is no longer considered grandtheft basedstrictly upon their character.” (Grayson, supra, 241 Cal.App.4th at p. 458.) Likewise, the Legislative Analyst explained Proposition 47 was intended to applyto these types oftheft statutes: “Under current law, theft of property worth $950or less is often charged as petty theft, which is a misdemeanororan infraction. However, such crimes can sometimes be charged as grand theft, whichis generally a wobbler. For example, a wobbler charge can occur ifthe crime involves the theft of certain property (suchas cars) or if the offender has previously committed certain theft-related crimes. This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically, such crimes would no longer be charged as grandtheft solely because ofthe type ofproperty involvedor because the defendant hadpreviously committed certain theft-related crimes.” (BallotPamp., Gen. Elec. (Nov. 4, 2014) analysis by Legislative Analyst, p. 35, italics added.) Both respondent and the court in Grayson rely on the fact that section 484e, subdivision (d) punishes the acquisition andretention of access card information with the intent to use it fraudulently, but does not punish actual use of the information to acquire property. (Grayson, supra, 241 Cal.App.4th at p. 459; People v. Molina (2004) 120 Cal.App.4th 507, 516 (Molina) [“The crimeis possession ofaccess card account information with a fraudulent intent. It does not require that the information actually be used or that the account of an innocent consumeractually be chargedorbilled.”]; see Couzens & Bigelow, Proposition 47, at pp. 26-27 [noting that “[t]he focus ofsection 484e is on obtaining the access card information with the intent to use it” and suggesting § 490.2, subd. (a) wouldnot apply because “there is no requirement that goods be actually acquired or attempted to be acquired; it punishes the theft of an access card with intent to use it”].) Instead, section 484g “makes it a separate crime for the defendantto actually use the access card or accountinformation to ‘obtain[] money, goods, services, or anything else of value.’ [Citation.] Underthis statute, if the valueofthe money, goods, services or anythingelse ofvalue obtained by use of the access card or information exceeds $950 in any consecutive six-month period, the defendantis guilty of grand theft. [Citation.] Thus, a defendant who uses access card information to obtain goods valued at more than $950 maybe charged with grandtheft under both section 484e[, subdivision (d)] and section 484g. Adefendant whouses the information to obtain goods worth $950orless is subject to charges of grand theft under section 484e[, subdivision (d)] and petty theft under section 484g.” (Grayson, supra, at p. 459.) Wefail to see howthe existence of a separate crime for use of access card information has any impact on whetherthe electorate intended to bring the theft of access card information itself under the umbrella of Proposition 47. Grayson is correctthat sections 484e, subdivision (d) and 484g punish separate crimes, but the inquiry into the value involved in each crimeis different. Section 484g punishes the use of access card information as afelony whenthe value ofthe goods obtained exceeds $950. In contrast, whenread in conjunction with section 490.2, subdivision (a), section A84e, subdivision (d) punishesthe theft of access card informationas a felony whenthe value ofthe access card information itse/fexceeds $950. We can easily conceive ofsituations in which that wouldbetrue, such asselling stolen access card information in a black marketto | individuals who would then acquire goods with it. Moreover, drawing a line between felonies and misdemeanors based onthe value of the access card information stolenis perfectly sensible---if the information for each accountis valued at, say, $100 on the black market, then it is far more serious to steal access card information for hundreds of accounts worth thousandsof dollars thanit is to steal information for one account worth $100, In any case, whatever the elements of a violation ofsection 484e, subdivision (qd), the Legislature deemedthe offense grandtheft. (See Molina, supra, 120 Cal.App.4th at p. 519 [“Penal Code section 484e, subdivision (d) makes it grand theft to acquire account information withrespectto an accesscard validly issued to another withthe intent to defraud.”]; People v. Butler (1996) 43 Cal.App.4th 1224, 1233.) The voters in turn reduced all grandthefts to misdemeanorsifthey involve property valued at less than $950. We simply cannot ignore these clear commands, even if it now requires the prosecution to prove the value of access card information under section 484e, subdivision (d). Finally, respondent argues and Grayson concludedthat the voters did not intend Proposition 47 to reduce somethefts of access card information to misdemeanors because it would undermine the consumer-protection purpose behind section 484e, subdivision (d). Section 484e, subdivision (d) is “part of a ‘comprehensive statutory scheme which punishesa variety of fraudulent practices involving access cards’” (Molina, supra, 120 Cal.App.4th at p. 512), and it was designed to “provide broadprotection to innocent consumers”(id. at p. 519). Respondent contends the voters must have understoodsection 484e, subdivision (d) broadly protects consumers, and there is no evidence they intended to “undercut” those protections by enacting section 490.2, subdivision (d). (See /n re Lance W. (1985) 37 Cal.3d 873, 890, fn. 1 (“The adopting bodyis presumed to be aware of existing laws andjudicial construction thereof... .”]; see Grayson, supra, 241 Cal.App.4th at pp. 459-460.) But we think the opposite conclusionis far more reasonable: Having been awareofthe broad protection created bysection 484e, subdivision (d), the voters nevertheless unambiguouslydirected that section 490.2, subdivision (a) would applytoall theft offenses “[nJotwithstanding . . . any other provision oflaw defining grandtheft.” (Italics added.) Had the voters intended to exempt grand theft under section 484e, subdivision (d) fromsection 490.2, subdivision (a), we think it would have done so expressly. And even if the competing interpretations of the voters’ intent were equally plausible, the scales should tip in favor of Proposition 47, given the voters directed that Proposition 47 should be “broadly construed to accomplish its purposes” and “liberally construed to effectuate its purposes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 15, 18, p. 74.) Werecognize our holding todayhas the potential to reduce most thefts under section 484e, subdivision(d) to misdemeanors, given section 484e, subdivision (d) requires no proofofactual loss and valuing the mere acquisition and possessionof access card information maybe difficult. (Molina, supra, 120 Cal.App.4th at p. 516.) Butthis result is not necessarily inconsistent withthe language andintent of Proposition 47 to reduce nonserious, nonviolent theft offenses involving property valued at less than $950 to misdemeanors. Nor should our decision be interpreted to limit the prosecution’s ability to prove the value of access card information exceeds $950. But constrained by the unambiguous language and clear purpose ofProposition 47, we must conclude section 490.2, subdivision (a) applies to theft of access card information under section 484e, subdivision (d). Remandis required becausethetrial court did not decide whether appellant’s theft involved property worth less than $950. “Thetrial court’s decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutorycriteria for relief,” including whether the value of the property involved wasless than $950. (People v. Contreras (2015) 237 Cal.App.4th 868, 892.) And evenifthe court determines appellant qualifies for resentencing, it must exerciseits 4 Appellant suggests thetrial court’s determination of the value of property involved must be based on the record of conviction. We leave that issue for the trial court to address on remand. 9 discretion to determine whether resentencing appellant would “pose an unreasonable risk of dangerto public safety.” (§ 1170.18, subd. (b); see Contreras, supra, at p. 892.) DISPOSITION The judgmentis reversed and the matter remanded forthe trial court to determine whetherthe value of the property involved in appellant’s conviction pursuantto section 484e, subdivision (d) did not exceed $950. If appellant qualifies for resentencing,the trial court shall recall his sentence and resentence him pursuant to section 1170.18. FLIER,J. WE CONCUR: RUBIN,Acting P.J. GRIMES,J. 10 ATTACHMENT 2 (Order Modifying Opinion and Denying Petition for Rehearing) Filed 12/3/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT COURT OF APPEAL — SECONDDIST. FILED DIVISION EIGHT Dec 03, 2015 7 , JOSEPH A. LANE,Clerk THE PEOPLE, B263164 S. Lui Deputy Clerk Plaintiff and Respondent, (Los Angeles County Super. Ct. No.MA064403) V. ORDER MODIFYING OPINION DANIEL ROMANOWSKI, AND DENYINGPETITION FOR REHEARING Defendant and Appellant. NO CHANGEIN JUDGMENT THE COURT: The opinionherein, filed onNovember 13, 2015, is modified as follows: 1. On page8, delete the last sentence in thefirst full paragraph andreplaceit with the following text: - Wesimply cannot ignore these clear commands. 2. Onpage 9, delete the first full paragraph and replace with the followingtext: We recognize going forward our holding may mean manythefts undersection 484e, subdivision(d) will be misdemeanors, given section A84e, subdivision (d) requires no proofofactual loss and valuing the mere acquisition and possession of access card information maybedifficult. (Molina, supra, 120 Cal.App.4th at p. 516.) Butthis result is not necessarily inconsistent with the language and intent of Proposition 47 to reduce nonserious, nonviolent theft offenses involving property valuedat less than $950 to misdemeanors. Constrained by the unambiguous language and clear purpose of Proposition 47, we must conclude section 490.2, subdivision (a) applies to theft of access card information under section 484e, subdivision (d). 3. On page9, delete footnote 2 and replace with the following text: Appellant suggests the trial court’s determination of the valueofthe property involved mustbe based on the record of conviction. We leave that issue for the trial court to address on remand. Wealso express no opinion on the applicable burdensofproofin any proceedingsto establish the value ofthe property involved because those issues have not beenraised by the parties or presentedat this stage ofthe case. There is no change in the judgment. Respondent’s petition for rehearing is denied. RUBIN,Acting P. J. FLIER,J. GRIMES,J. DECLARATION OF SERVICE Case Name: People v. Daniel Romanowski No.: B263164 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a partyto this matter. On December 21, 2015, I caused one electronic copy of the PETITION FOR REVIEWinthis case to be submitted electronically to the California Supreme Court by using the Supreme Court’s Electronic Document Submission system. On December 21, 2015, I served the attached PETITION FOR REVIEWbytransmitting a true copy viaelectronic mail to: . RichardL. Fitzer Robert Sherwood Attorney at Law Deputy District Attorney roclwyr@aol.com (courtesy copy) (Attorney for Appellant) On December 21. 2015, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection systemat the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Sherri R. Carter Clerk of the Court Los Angeles County Superior Court for delivery to: Hon. Christopher G. Estes, Judge LI1 N. HillStreet Los Angeles, CA 90012 On December 21, 2015, I caused one electronic copy of the PETITION FOR REVIEWinthis case to be servedelectronically onthe California Court of Appeal by using the Court’s Electronic Service Document Submission system. Two copies for the California Appellate Project was placed in the box for the daily messenger run system established between this Office and California Appellate Project (CAP) in Los Angeles for same day, personaldelivery. I declare under penalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on December21, 2015, at Los Angeles, California. Irene Rangel Stu (OveQ » Declarant Signature © MS:ir LA2015601806 61809685 .doc