People v. Romanowski , 215 Cal. Rptr. 3d 758 ( 2017 )

Filed 3/27/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S231405
v. )
) Ct.App. 2/8 B263164
DANIEL ROMANOWSKI, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. MA064403
____________________________________)
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
1 All undesignated code references are to the Penal Code.
1
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.
I.
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‖
2
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.
II.
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
3
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: ―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 grand theft solely because of the property involved.‖ (Voter
2 Proposition 63 was approved by the electorate in November 2016. It added
a new subsection to section 490.2 that reads: ―This section shall not apply to theft
of a firearm.‖ (§ 490.2, subd. (c).) The text of section 490.2 enacted by
Proposition 47 contained no distinction relative to different forms of theft, and this
newly added subsection does not encompass Romanowski‘s conviction for theft of
access card account information.
4
Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis.
Analyst, p. 35, italics added (Voter Information Guide).)
Prior to the changes wrought by Proposition 47, section 487 set out of three
categories of theft that were charged as grand theft solely because of the property
involved –– theft of guns, theft of cars, and theft of property from the victim‘s
person. (See § 487, subds (c)—(d).) But these three categories were not the only
forms of the theft that prosecutors could charge as grand theft regardless of value.
And we know that the voters who approved Proposition 47 had their sights on
definitions of grand theft other than the categories in section 487, since section
490.2 refers to ―[s]ection 487 or any other provision of law defining grand theft.‖
(§ 490.2, subd. (a), italics added.) For these other forms of grand theft too,
Proposition 47 establishes that ―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.‖ (§ 490.2, subd. (a).)
One of those ―other provision[s] of law defining grand theft‖ for which
Proposition 47 reduced punishment is section 484e, subdivision (d). (§ 490.2,
subd. (a).) This subdivision indicates that anyone committing theft of access card
information ―is guilty of grand theft.‖ (§ 484e, subd. (d).) Section 484e also
resides in chapter 5 of the Penal Code, which is titled ―Larceny.‖ In just about
every way available, the Legislature made clear that theft of access card
information is a theft crime. Nothing in the text of the initiative suggested that the
voters were implicitly leaving this form of theft out when they used the phrases
―any other provision of law defining grand theft‖ and ―obtaining any property by
theft.‖ (§ 490.2, subd. (a).) We deny a phrase like ―any other provision of law‖ its
proper impact if we expect a penal statute –– whether enacted by the Legislature
or the electorate –– to further enumerate every provision of the Penal Code to
which it is relevant. And we generally presume that the electorate is aware of
5
existing laws. (In re Lance W. (1985) 37 Cal.3d 873, 890 & fn. 10.) Here this
means we must presume that voters were at least aware that the Penal Code sets
out ―grand theft‖ crimes that included theft of access card account information. (§
484e.) The text and structure of Proposition 47 convey that section 490.2‘s clear
purpose was to reduce punishment for crimes of ―obtaining any property by theft‖
that were previously punished as ―grand theft‖ when the stolen property was worth
less than $950. And section 484e confirms that theft of access card information is
one of those crimes.
Though our primary task is to understand section 490.2‘s purpose by
analyzing the statute‘s language and structure, we can glean further insight from
other provisions of Proposition 47, and — to the extent the relevant statutory
provision is ambiguous — from appropriate extrinsic sources. Proposition 47‘s
preamble reads: ―The people enact the Safe Neighborhoods and Schools Act to
ensure that prison spending is focused on violent and serious offenses, to
maximize alternatives for nonserious, nonviolent crime, and to invest the savings
generated from this act into prevention and support programs in K-12 schools,
victim services, and mental health and drug treatment.‖ (Voter Information Guide,
supra, text of Prop. 47, § 2, p. 70.) The preamble further specifies that ―the
purpose and intent of the people of the State of California‖ was to ―[r]equire
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft
and drug possession.‖ (Id., § 3.) We see no reason to assume that reasonable
voters seeking to anticipate the consequences of enacting Proposition 47 would
have concluded that theft of access card information worth less than $950 is a
serious or violent crime exempt from Proposition 47‘s reach. (See Lance W., 37
Cal.3d at p. 890 & fn. 10 [looking to ―the ballot summary and arguments‖ as well
as ―the preamble to the initiative‖ to discern an initiative‘s intended purpose].)
Certainly nothing in the text of the enacted statute conveys that its terms or
6
purpose support this assumption. To the contrary: Proposition 47 directed that the
text of the initiative ―shall be broadly construed to accomplish its purposes‖ and
―shall be liberally construed to effectuate its purposes.‖ (Voter Information
Guide, supra, text of Prop. 47, §§ 15, 18, p. 74.) And downgrading the
punishment for theft of access cards information worth less than $950 no doubt
serves Proposition 47‘s purpose of ―[r]equir[ing] misdemeanors instead of felonies
for nonserious, nonviolent crimes.‖ (Id., § 3.)
The Legislative Analyst‘s report on Proposition 47 fits with this
interpretation too. (See People v. Morales (2016) 63 Cal.4th 399, 406–407
[looking to the ―Legislative Analyst‘s analysis of Proposition 47‖ for evidence of
―the voters‘ likely understanding of Proposition 47‘s meaning‖].) This analysis
told voters that Proposition 47 would reduce punishment for any theft of property
worth less than $950 that could previously be charged as grand theft based on the
type of property. In a summary of ―current law,‖ the Legislative Analyst
explained that ―theft of property worth $950 or less‖ could be ―charged as grand
theft‖ ―if the crime involves the theft of certain property (such as cars).‖ (Voter
Information Guide, supra, analysis of Prop. 47 by Legis. Analyst, p. 35.) Next, in
an explanation of the initiative‘s effect, the Legislative Analyst explained that this
category of theft crimes (any ―theft of property worth $950 or less‖ that could
previously be ―charged as grand theft‖ simply because ―the crime involves the
theft of certain property‖) was the category of theft crimes that Proposition 47
would reduce punishment for. Specifically, voters were told that the ―measure
would limit when theft of property of $950 or less can be changed as grand theft‖
in that ―such crimes would no longer be charged as grand theft solely because of
the type of property involved.‖ (Ibid., italics added.) Nowhere in this analysis did
the Legislative Analyst suggest that only theft of select types of property would be
7
reduced, nor did the analysis lay out any basis for distinguishing among different
types of property for this purpose.
Accordingly, in light of section 490.2‘s language and its statutory context
— which includes both the other statutory provisions that Proposition 47 enacted
and previously existing features of the Penal Code — we conclude that the
statute‘s unqualified references to ―obtaining any property by theft‖ and ―any . . .
provision of law defining grand theft‖ encompass theft of access card information.
(§ 490.2, subd. (a).) The People urge us to conclude otherwise. They offer three
arguments for why the terms ―obtaining any property by theft‖ and ―any . . .
provision of law defining grand theft‖ do not encompass theft of access card
information. Each argument infers a limit to the scope of Proposition 47‘s
provisions. None has any basis in the statutes at issue.
The first limit that the People propose has to do with the difficulty of
applying section 490.2‘s $950 threshold to theft of access card information. The
People claim that applying this threshold to theft of access card information
―would likely often prove exceedingly difficult,‖ and this difficulty ―is strong
evidence that the offense is not, and was not intended to be, reducible.‖ We
rejected a similar invitation to infer such a limitation on a statute‘s purpose in
People v. Farell (2002) 28 Cal.4th 381. Farell dealt with section 1203.044‘s
unique probation conditions for ― ‗theft of an amount exceeding fifty thousand
dollars ($50,000).‘ ‖ (Id. at p. 385.) We held that these conditions applied to
convictions for theft of trade secrets worth more than $50,000. Like the People
here, Farell had argued ―that difficult questions of valuation would face a court
that applied section 1203.044 to the theft of trade secrets or other nonmonetary
property, and . . . for this reason it is unlikely that the Legislature intended to
include nonmonetary property — specifically intellectual property — within the
reach of this statute.‖ (Id. at p. 391.) We rejected this argument, explaining that
8
we did ―not believe that the Legislature would consider problems of valuation
determinative‖ since ―[s]imilar questions of valuation are presented by any charge
of grand theft pursuant to section 487.‖ (Ibid.)
We reject the People‘s argument here for the same reason. There is no
reason to conclude that section 490.2 categorically excludes theft of access card
information because of the somewhat greater challenge involved in estimating the
dollar amount associated with this crime. Access card theft was not the only
offense that was punished without regard to the value of the stolen property until
Proposition 47 went into effect. Section 487 (which both the Farell opinion and
the statute enacted by Proposition 47 refer to expressly) made it ―grand theft‖ to
steal automobiles, as well to steal ―from the person of another.‖ (§ 487, subds.
(c)—(d).) These forms of theft previously required no evidence of the value of the
stolen property. Now they do. The category of property that can be taken from
someone‘s person is rather expansive, as it includes anything a person could carry.
The potential difficulty of putting a price on this property is equally expansive.
And while the value of intangible property may sometimes be more elusive than
the value of tangible property, we see no reason why this will always be true. We
certainly see nothing in the text of Proposition 47 that either sets out a distinction
between tangible and intangible property or otherwise limits the measure‘s reach
based on impressions about whether the value of the stolen property will, in the
People‘s words, ―likely often prove exceedingly difficult‖ to measure. We decline
to read these limitations into the statute.3
3 The People‘s argument here is not that access card information falls outside
section 490.2‘s reference to ―property.‖ Nor could they make this argument. (See
People v. Kozlowski (2002) 96 Cal.App.4th 853, 865 [holding that PIN numbers
meet the Penal Code‘s definition of ―property‖ since that definition ―includes
personal property such as money, goods, chattels, things in action and evidences
(footnote continued on next page)
9
Second, the People argue that ―[a]lthough section 484e(d) is punished as
grand theft, it does not primarily define a ‗theft‘ crime.‖ The People even claim
that it is ―misleading to refer to the crime, as the Court of Appeal did, as ‗theft of
access information.‘‖ We disagree. As an initial matter, the People repeatedly
used the terms ―access card theft‖ and ―theft of access card account information‖
in their petition for review asking us to consider this case, underscoring how this
terminology is hardly uncommon. Which is hardly surprising, because the
Legislature chose to place section 484e in a chapter of the Penal Code titled
―Theft.‖ (See Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [―The
policy sought to be implemented [by a statute] should be respected [citation], and
to this end, titles of acts, headnotes, and chapter and section headings may
properly be considered in determining legislative intent.‖].) Even if this heading
does not by itself resolve the meaning of access card information theft, it
establishes that the Penal Code at least refers to the crime as theft. The People
offer no compelling reason why the term ―theft‖ in Proposition 47 should not
apply to a crime that bears that name in the Penal Code.
Moreover, the People seem to ignore part of the language of section 484e,
subdivision (d), when they argue that this subdivision ―does not primarily define a
‗theft‘ crime.‖ The People write in their opening brief that section 484e,
subdivision (d), does not ―define a ‗theft‘ crime‖ because the statute ―is violated
when someone acquires or retains possession of access card account information
(footnote continued from previous page)
of debt‖]; see also Farell, 28 Cal.4th at p. 381 [holding that the term ―theft of an
amount exceeding fifty thousand dollars‖ covers the theft of trade secrets worth
over $50,000].) Access card information is a form of intangible property, just like
PIN numbers and trade secrets.
10
issued to another person (and with the intent to use it fraudulently).‖ The People‘s
reply brief reiterates that the statute ―proscribes the acquisition or retention of
access card information with the intent to use it fraudulently, which is different
from a proscription against ‗obtaining any property by theft.‘ ‖ Both these glosses
on the statute omit a crucial element. Theft of access card information requires
―acquir[ing] or retain[ing] 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.‖ (§ 484e, subd. (d), italics added.) This ―without . . . consent‖
requirement confirms that theft of access card information is a ―theft‖ crime in the
way the Penal Code defines ―theft.‖
Even when a defendant is voluntarily entrusted someone else‘s access card
information, any attempt to ―retain[] possession‖ of the information ―without the
cardholder‘s or issuer‘s consent‖ and ―with the intent to use it fraudulently‖ (§
484e, subd. (d)) would be a form of embezzlement, which is covered by Penal
Code section 484‘s definition of ―theft.‖ (See §§ 503 [―Embezzlement is the
fraudulent appropriation of property by a person to whom it has been intrusted.‖],
484 [―Every person . . . who shall fraudulently appropriate property which has
been entrusted to him or her . . . is guilty of theft.‖]; see also People v. Davis
(1998) 19 Cal.4th 301, 304 [―the formerly distinct offenses of larceny,
embezzlement, and obtaining theft by false pretenses were consolidated in 1927
into the single crime of ‗theft‘ defined by Penal Code section 484‖].) California‘s
definition of ―theft‖ also includes theft by false pretenses, which ―unlike larceny
has no requirement of asportation.‖ (People v. Williams (2013) 57 Cal.4th 776,
787; see also § 484 [―Every person . . . who shall knowingly and designedly, by
any false or fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property . . . is guilty of theft.‖].) So even if we
assume that section 490.2 only reduces punishment for crimes that require the
11
definition set out in section 484, theft of access card information falls within that
definition.
The third limit the People ask us to place on Proposition 47‘s scope has to
do with the access card theft statute‘s underlying purpose. The People claim
―there is no reason to think that the voters who enacted Proposition 47 intended to
undercut [section 484e‘s] broad consumer protection.‖ We accept for the sake of
argument that ―[t]he purpose of the legislation adding subdivision (d) to Penal
Code section 484e was to protect innocent consumers.‖ (People v. Molina (2004)
120 Cal.App.4th 507, 516.) But the next step in the People‘s argument — that
punishment for theft crimes that protect innocent consumers cannot be reduced
along with the punishment for other theft crimes — frames section 484e,
subdivision (d)‘s purpose far too expansively. Subdivision (d) did not establish
that theft of access card information must always be punished more harshly than
other forms of theft. To the contrary, the Legislature made the punishment
scheme for theft of access card information identical to the schemes for crimes
like automobile theft. Then, two decades later, the voters reduced the punishment
for those crimes when the value of the stolen property is below $950. Though we
agree that section 484e was enacted to protect consumers, nothing in the text of
the statute suggests that the Legislature meant for consumers to be protected in
such a manner that changes like Proposition 47 implicitly cannot apply. Nor, as
we discuss in the next paragraph, is there any indication that voters implicitly
sought to restrict Proposition 47‘s scope based on unstated expectations about
consumer protection. And even if such a limit were evident, it is far from obvious
that a reduction in punishment for theft of access card information worth less than
$950 –– with no reduction for higher value thefts –– will materially reduce the
extent of consumer protection.
12
The People‘s argument about ―the statute‘s broad consumer protection‖
also overlooks the fact that Proposition 47 expressly reduced the punishment for
another set of crimes that serve to protect consumers. Proposition 47 reduces
punishment for ―forgery relating to a check, bond, bank bill, note, cashier‘s check,
traveler‘s check, or money order, where the value of the check, bond, bank bill,
note, cashier‘s check, traveler‘s check, or money order does not exceed nine
hundred fifty dollars ($950).‖ (§ 473, subd. (b).) Section 473 also protects
consumers from fraud and identity theft. In fact, a check can contain some of the
same information that is found on an access card, along with the owner‘s address
and other details that would facilitate identity theft. Given that Proposition 47
specifically created a $950 threshold for check forgery, we see no reason to infer
(against section 490.2‘s plain meaning) that voters implicitly intended to exempt
theft of access information simply because this criminal prohibition serves to
protect consumers. Where the electorate excluded whole categories of crimes
based on the underlying purpose of the crimes, these limits were explicit. (See,
e.g., Voter Information Guide, Prop. 47, § 3, p. 69 [―people convicted of murder,
rape, and child molestation will not benefit from this act‖].) Nothing in
Proposition 47 suggests that voters implicitly intended for the initiative‘s scope to
hinge on inferences about the objectives of the crimes at issue. The electorate
weighed the costs and benefits of Proposition 47. On the question of whether
consumer protection offenses are exempt from the initiative‘s provisions, the
language approved by the public conveys an unambiguous, negative answer.
But because we hold that section 490.2 reduces the punishment for theft of
access card information valued at less than $950, we must answer a second
question: how do courts determine whether the value of stolen access card
information exceeds $950? After all, section 484e, subdivision (d) punishes the
theft of an access card or access card information itself, not of whatever property a
13
defendant may have obtained using a stolen access card or stolen information.
Fraudulent use of access cards or account information is punished as a separate
crime. (See § 484g.) This means a defendant can be convicted of violating
section 484e, subdivision (d), even if he or she never uses the stolen account
information to obtain any money or other property. So the $950 threshold for theft
of access card information must reflect a reasonable approximation of the stolen
information‘s value, rather than the value of what (if anything) a defendant
obtained using that information.
How to value stolen access card account information is elucidated in part
by the Penal Code‘s definition of ―theft,‖ which requires courts to determine the
value of property obtained by theft based on ―reasonable and fair market value.‖
(§ 484, subd. (a) [―In determining the value of the property obtained, for the
purposes of this section, the reasonable and fair market value shall be the test.‖].)
Though section 484, subdivision (a), says ―for the purposes of this section,‖
section 484 is a definitional section. It sets the ground rules for how theft crimes
are adjudicated — for example, how various terms are defined, how value must be
calculated, and how certain evidentiary presumptions operate. Specific theft
crimes are set out in a variety of other sections, and courts have long required
section 484‘s ―reasonable and fair market value‖ test to be used for theft crimes
that contained a value threshold, such as violations of section 487, subdivision (a).
(See, e.g., People v. Tijerina (1969) 1 Cal.3d 41, 45; Farell, 28 Cal.4th at p. 392.)
Acceptance of this approach was part of the backdrop against which Proposition
47 was enacted, and Proposition 47 does not refer to any other approach to
valuation. We thus see no basis for an alternative approach to valuation either in
the original statutory scheme or in the provisions enacted by Proposition 47.
Courts must use section 484‘s ―reasonable and fair market value‖ test when
applying section 490.2‘s value threshold for theft crimes.
14
Both parties stress that ―the reasonable and fair market value‖ of stolen
access card information will not always be clear, since stolen access card
information is not available for sale in legal markets. And both sides claim that
this difficulty is a reason to take an all-or-nothing approach here. As discussed
above, the People argue that this ―difficulty is strong evidence that the offense . . .
was not intended to be . . . reducible.‖ We have already explained why that view
is wrong. Over on the other side, Romanowski argues that this difficulty is reason
to measure the value of stolen access card information based on the intrinsic value
of whatever tangible property was stolen (for example, the value of the plastic for
a stolen credit card) and ―simply hold that the value of a stolen access card is de
minimis as a matter of law.‖ This approach has no basis in the statutory language
―reasonable and fair market value.‖ (§ 484, subd. (a).) The plastic value of a
stolen credit card is hardly the value that the market would place on stolen credit
card information. Also, while access card information is sometimes printed on a
physical object, that will not always be true. In cases where a defendant stole
something other than a physical object, a measure based on the plastic value of a
credit card would not reflect ―the value of the property obtained.‖ (Id.)
We thus hold that the Penal Code‘s reference to the ―reasonable and fair
market value‖ requires courts to identify how much stolen access card information
would sell for. (§ 484, subd. (a); see also Tijerina, 1 Cal.3d at p. 45 [―in the
absence of proof . . . that the price charged by a retail store from which
merchandise is stolen does not accurately reflect the value of the merchandise in
the retail market, that price is sufficient to establish the value of the
merchandise‖]; People v. Pena (1977) 68 Cal.App.3d 100, 103 [―When you have a
willing buyer and a willing seller, neither of whom is forced to act, the price they
agree upon is the highest price obtainable for the article in the open market. Put
another way, ‗fair market value‘ means the highest price obtainable in the market
15
place . . . .‖]; CALCRIM No. 1801 [―Fair market value is the price a reasonable
buyer and seller would agree on if the buyer wanted to buy the property and the
seller wanted to sell it, but neither was under an urgent need to buy or sell.‖].) The
fact that stolen access card information is not sold legally does not relieve courts
of this duty. This court has never suggested that the term ―reasonable and fair
market value‖ must refer to legal market value even in cases where there is no
legal market for the stolen property. When a defendant steals property that is not
sold legally, evidence related to the possibility of illegal sales can help establish
―reasonable and fair market value.‖ Only in cases where stolen property would
command no value on any market (legal or illegal) can courts presume that the
value of stolen access information is de minimis.
Romanowski argues that a ― ‗black market‘ approach to valuation‖ will
prove ―unworkable and unseemly.‖ But other jurisdictions have long used this
approach to measure the value of stolen credit cards (see, e.g., Miller v. People
(Colo. 1977) 566 P.2d 1059, 1060), stolen money orders (see, e.g., U.S. v. Tyers
(2d Cir. 1973) 487 F.2d 828, 831; Churder v. U.S. (8th Cir. 1968) 387 F.2d 825,
833; U.S. v. Bullock (5th Cir. 1971) 451 F.2d 884, 890; U.S. v. Ciongoli (3d Cir.
1966) 358 F.2d 439, 441), and stolen checks (see, e.g., U.S. v. Luckey (9th Cir.
1981) 655 F.2d 203, 205). Several more jurisdictions have long looked to illegal
market value for other types of stolen property. (See, e.g., People v. Colasanti
(N.Y. 1974) 322 N.E.2d 269, 270; U.S. v. Hynes (6th Cir. 2006) 467 F.3d 951, 966
[―the three circuits that have considered the question of whether market value can
be determined from the prices paid in a thieves‘ market have all answered that
question in the affirmative‖]; U.S. v. Oberhardt (7th Cir. 1989) 887 F.2d 790, 792
[―It is now well settled that the valuation of stolen goods according to the concept
of a ‗thieves‘ market‘ is an appropriate method for determining the ‗market value‘
of goods . . .‖].) Indeed we are aware of no jurisdiction that bars courts from
16
looking at evidence of illegal market value. We see no reason to establish that
restriction in California.
Because the value of the stolen access card information was not an element
at the time Romanowski was convicted, this case raises a further question: Who
bears the burden of proving newly relevant facts in the context of a section
1170.18 petition to recall a sentence? The ultimate burden of proving section
1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.) In some
cases, the uncontested information in the petition and record of conviction may be
enough for the petitioner to establish this eligibility. When eligibility is
established in this fashion, ―the petitioner‘s felony sentence shall be recalled and
the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.‖ (§ 1170.18, subd. (b).) But in other cases, eligibility for
resentencing may turn on facts that are not established by either the uncontested
petition or the record of conviction. In these cases, an evidentiary hearing may be
―required if, after considering the verified petition, the return, any denial, any
affidavits or declarations under penalty of perjury, and matters of which judicial
notice may be taken, the court finds there is a reasonable likelihood that the
petitioner may be entitled to relief and the petitioner‘s entitlement to relief
depends on the resolution of an issue of fact.‖ (Cal. Rules of Court, rule 4.551(f);
see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 [―A proper petition
could certainly contain at least [the petitioner‘s] testimony about the nature of the
items taken. If he made the initial showing the court can take such action as
appropriate to grant the petition or permit further factual determination.‖].)
17
III.
Proposition 47 reduces the punishment for theft of access card information
in violation of Penal Code section 484e, subdivision (d). Not only does section
490.2 use the broad terms ―grand theft‖ and ―obtaining any property by theft‖
rather than distinguishing between different forms of theft, the statute‘s structure
and other indicia of its purpose suggest that its provisions encompass the offense
at issue here. After Proposition 47, theft of access card information ―where the
value of the . . . property taken does not exceed nine hundred fifty dollars ($950)‖
can be a misdemeanor. (§ 490.2, subd. (a).) As with any other theft that is
punished based on the stolen property‘s value, ―the reasonable and fair market
value shall be the test‖ for applying section 490.2‘s $950 threshold. (§ 484, subd.
(a).) When stolen access card information lacks a legal market, moreover, courts
may consider evidence concerning the potential for illicit sale of the access card
information in order to determine its value. The judgment of the Court of Appeal
is affirmed.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Romanowski
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 242 Cal.App.4th 151Rehearing Granted
__________________________________________________________________________________
Opinion No. S231405
Date Filed: March 27, 2017
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Christopher Estes
__________________________________________________________________________________
Counsel:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard L. Fitzer
6285 East Spring Street, 276N
Long Beach, CA 90808
(562) 429-4000
Laura Beth Arnold
4200 Orange Street
Riverside, CA 92501
(951) 304-5651
Mary Sanchez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2364