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People v. Liu

Supreme Court of California

November 21, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Si H. LIU, Defendant and Appellant.

         [254 Cal.Rptr.3d 810] Second Appellate District, Division Eight, B279393, Los Angeles County Superior Court, GA090351, Robert P. Applegate, Judge.

Page 254

         COUNSEL

         David R. Greifinger, under appointment by the Supreme Court, for Defendant and Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer, Noah P. Hill, and Tita Ngyuen, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         CUÉLLAR, J.

Page 255

         [451 P.3d 1166] We retread in this case ground recently traveled in People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 (Romanowski ). At issue once more is how to assess the value of stolen access card information — a term encompassing information related to credit and

Page 256

debit cards, bank accounts, and similar financial devices. (See Pen. Code, � 484e, subd. (d) (section 484e(d)); id., � 484d, subd. (2).)[1]

         What we concluded in Romanowski is that courts conducting that analysis must do what they do in all theft cases: figure out "how much [the stolen property] would sell for." (Romanowski, supra, 2 Cal.5th at p. 915, 215 Cal.Rptr.3d 758, 391 P.3d 633.) Discerning that amount is an endeavor that calls for some subtlety and may depend on more than one factor. Further complicating the inquiry in this context is the lack of a legal market for stolen access card information. But instead of engaging in that nuanced inquiry, the Court of Appeal here simply assumed that the value of what the defendant obtained using the stolen information sets a floor on the fair market value of the stolen access card information she unlawfully used. Because the Court of Appeal’s reasoning falls short of what Romanowski requires, and because both parties agree that further factfinding is necessary to resolve this case, we vacate the judgment and remand.

          I.

          Defendant Si H. Liu advertised loan services in local newspapers. Those offerings were a front for nefarious ends: Liu was running a fraudulent scheme targeting immigrants in the Los Angeles area. When unwitting readers sought help obtaining financing, Liu asked them for sensitive documents and information — such as driver’s licenses and social security numbers — as well as credit and debit cards. She then went on personal spending sprees, sometimes by surreptitiously opening new lines of credit in her victims’ names, but most often by simply charging purchases to their credit or debit card accounts. All told, Liu fraudulently charged thousands of dollars.

         The law eventually caught up with Liu. The People charged her with nearly two dozen criminal counts related to her fraudulent activities. Those charges included burglary, unlawfully acquiring the personal identifying information of 10 or more people, and — most relevant here — theft of access card information under section 484e(d). At trial, a jury convicted Liu on all counts. The Court of Appeal reversed one of her convictions but affirmed the rest. Five of Liu’s convictions for theft of access card information under section 484e(d) [254 Cal.Rptr.3d 811] were among those upheld on appeal and they are at issue here.

         In November 2014, while Liu’s direct appeal was pending, California voters approved Proposition 47: The Safe Neighborhoods and Schools Act. To decrease the number of people in prison for nonviolent crimes, Proposition 47

Page 257

reduced the punishment prescribed by law for a wide swath of crimes in California. Many offenses once punishable as felonies are now treated as misdemeanors. Such crimes include, with a few exceptions not relevant here, "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)." (� 490.2, subd. (a) (section 490.2(a)).) What’s more, Proposition 47’s changes apply not just to future offenders, but also to certain people currently serving prison sentences for past convictions. Someone who "would have been guilty of a misdemeanor" if Proposition 47 had "been in effect at the time of [his or her] offense" may seek relief. (� 1170.18, subd. (a).) Specifically, a person in that position may "petition for a recall of sentence before the trial court that entered the judgment of [451 P.3d 1167] conviction in his or her case" and "request resentencing in accordance with" Proposition 47’s changes. (� 1170.18, subd. (a); but see People v. Lara (2019) 6 Cal.5th 1128, 1134, 245 ...


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