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People v. Romanowski

Supreme Court of California

March 27, 2017

THE PEOPLE, Plaintiff and Respondent,
DANIEL ROMANOWSKI, Defendant and Appellant.

         Superior Court Los Angeles County, Nos. MA064403, Ct. App. 2/8 B263164 Christopher Estes Judge

          Richard L. Fitzer, under appointment by the Supreme Court, for Defendant and Appellant.

          Laura Beth Arnold for California Public Defender's Association and Law Offices of the Public Defender for the County of Riverside as Amici Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Michael R. Johnsen and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

          Jackie Lacey, District Attorney (Los Angeles), Steven Katz, Head Deputy District Attorney, Phyllis C. Asayama and John Harlan II, Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

          Cuéllar, J.

         When California voters approved Proposition 47, they enacted statutory provisions with the purpose of reducing punishment for a broad range of crimes previously classified as felonies. What this case requires us to decide is whether theft of access card account information - an offense that includes theft of credit and debit card information - is one of the crimes eligible for reduced punishment. We hold that it is. Although theft of access card information differs in some ways from other forms of theft, Proposition 47 broadly reduced punishment for “obtaining any property by theft” where the value of the stolen information is less than $950. (Penal Code, § 490.2, subd. (a).)[1] And while Proposition 47 does not specify a particular valuation test for this $950 threshold, the Penal Code section that defines theft says that “the reasonable and fair market value shall be the test” for determining the value of stolen property. (§ 484, subd. (a).) What we hold in light of this provision and Proposition 47 is that section 490.2's value threshold must be applied using this “reasonable and fair market value” test. Moreover, courts may consider evidence related to the possibility of illicit sales when determining the market value of stolen access card information. We therefore affirm the judgment of the Court of Appeal.


         On September 29, 2014, Daniel Romanowski pleaded no contest to a felony violation of section 484e, subdivision (d). The trial court sentenced Romanowski to four years in county jail. About a month later, the voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reduced the punishment for several crimes that were previously punished as felonies. These reductions were directed both at future offenders and those “currently serving a sentence for a conviction.” (§ 1170.18, subd. (a).) For the latter group, anyone who “would have been guilty of a misdemeanor... had [Proposition 47] been in effect at the time of the offense” is allowed to “petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with” Proposition 47's reductions. (Ibid.)

         Romanowski filed a resentencing petition on March 10, 2015. The Superior Court denied the petition, ruling that Proposition 47 does not apply to theft of access card information. The Court of Appeal reversed this ruling. The court explained that “by its plain terms, section 490.2, subdivision (a) reduces a violation of section 484e, subdivision (d) to a misdemeanor if it involves property valued at less than $950.” The court thus remanded the case for a determination of “whether the value of the property involved in appellant's conviction pursuant to section 484(e), subdivision (d) did not exceed $950.” The court did not specify how this determination should be made, though the opinion mentioned the example of a defendant “selling stolen access card information in a black market” in an earlier discussion of “the inquiry into the value... of the access card information.” We granted review to determine whether section 490.2 applies to theft of access card account information.


         The core question raised by this case depends on the interplay of two separate statutory schemes - one enacted by the Legislature, and one by the public. The first statutory scheme is the one Romanowski was convicted of violating: Penal Code section 484e, subdivision (d). This subdivision says: “Every person who 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, is guilty of grand theft.” (§ 484e, subd. (d).)

         The other statutory scheme at issue here reflects Penal Code provisions enacted by voters through Proposition 47, which downgraded several crimes from felonies to misdemeanors. One of Proposition 47's purposes was to reduce the number of prisoners serving sentences for nonviolent crimes, both to save money and to shift prison spending toward more serious offenses. (See Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [“One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.”].) The provision of Proposition 47 reducing punishment for theft crimes provides: “Notwithstanding Section 487 or any other provision 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 hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.” (§ 490.2, subd. (a).) Section 487 lists four types of grand theft. First, subdivision (a) makes it grand theft to steal any “money, labor, or real or personal property... of a value exceeding nine hundred fifty dollars ($950).” Next, subdivision (b) sets a $250 threshold for theft of “domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops” as well as of “fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products... from a commercial or research operation which is producing that product.” After that, subdivision (c) makes it grand theft to steal property “from the person of another, ” and subdivision (d) makes it grand theft to steal either an “automobile” or a “firearm.” In sum, section 487 makes it grand theft to steal: more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim's person; or any cars or guns.

         What section 490.2 indicates is that after the passage of Proposition 47, “obtaining any property by theft” constitutes petty theft if the stolen property is worth less than $950.[2] Of course, section 487, subdivision (a), already made it grand theft to steal property worth over $950. But various other theft provisions carved out separate categories of grand theft based on the type of property stolen, with either a lower value threshold or no value threshold at all. These are the provisions that Proposition 47 modified by inserting a $950 threshold. Or as the Legislative Analyst put it: ‚ÄúThis 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 ...

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