Cuen pleads to two felony counts of Penal Code section 484e(d), grand theft by way of unlawful possession of "access card information". He later petitions pursuant to Penal Code section 1170.18 to reduce these 484e(d) convictions to misdemeanors. The trial court denies the petitions and Cuen appeals. This panel from the Fourth District affirms, holding a conviction for 484e(d) is not eligible for reduction to a misdemeanor pursuant to 1170.18.
The opinion is short; too short because it fails to adequately address the central question. To wit, is access card information "personal property" for purposes of theft statutes? Starting with Penal Code section 484e(d) defining a form of grand theft, Penal Code 1170.18 allows a convict to petition for resentencing if the conviction would have been a misdemeanor under the newly enacted Penal Code section 490.2 which states,
“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. . . ."
Section 484e(d) is a provision of law defining grand theft, so Cuen appears to be on solid footing at least through the introductory clause. The first part of the second clause requires Cuen to show his crime was "obtaining any property by theft". Obviously Cuen satisfies this, he obtained "access card information", intangible property, by theft. The second part of this clause is troubling because in stating the dollar threshold, it enumerates four types of property. The language goes from the general to the specific (usually it is the converse). The first issue that really should have been addressed in this opinion is the effect of the subsequent enumeration of the types of property (money, labor, real or personal) upon the initial general language (obtaining any property by theft).
But the panel just ignores the tension created by the language, and quotes only the second half of the clause in support of their finding that 490.2 is unambiguous (creating a new judicial cannon- claritatem via omissionis). The panel's next task is to determine if "personal property" includes "access card information". They find it doesn't, supporting their conclusion with a dubious citation to People v. Molina for the authority that theft of access information is a "qualitatively different personal violation than that of more tangible property". Maybe I missed it, but in reading Molina, I didn't see support for such a claim. The phrase "more tangible property" is pure tosh. There is tangible property and intangible property, there are not degrees of tangibility.
Further disappointing is that the panel doesn't even mention that the Penal Code defines "personal property" (PC section 7), it doesn't examine access card information within the context of the statutory definition, and doesn't examine published case law that has already considered whether information such as PIN numbers and passkey information is included within section 7's definition of "personal property" (P v. Kozlowski and P v. Kwok hold that PIN numbers and key information are property for extortion purposes and theft purposes).
After determining access card info isn't personal property, the panel attempts to use the cannon of the "specific controls the general" to say that because 484e(d) defines a form of grand theft which does not reference the value of the stolen property, section 490.2 is inapplicable as being controlled by the more specific 484e(d). This is just wrong. First, there is only need to resort to the specific/general cannon where there is conflict. There is no conflict here, 490.2 was passed after 484e(d) and specifically addresses 484e(d) (Notwithstanding 487 or any other provision of law defining grand theft). And even if there could be said to be conflict, application of leges posteriores priores contrarias abrogant resolves the conflict in favor of 490.2.
I am not saying I cannot be convinced that Mr. Cuen's convictions were ineligible for Prop47 relief, but this opinion didn't come close.
Further disappointing is that the panel doesn't even mention that the Penal Code defines "personal property" (PC section 7), it doesn't examine access card information within the context of the statutory definition, and doesn't examine published case law that has already considered whether information such as PIN numbers and passkey information is included within section 7's definition of "personal property" (P v. Kozlowski and P v. Kwok hold that PIN numbers and key information are property for extortion purposes and theft purposes).
After determining access card info isn't personal property, the panel attempts to use the cannon of the "specific controls the general" to say that because 484e(d) defines a form of grand theft which does not reference the value of the stolen property, section 490.2 is inapplicable as being controlled by the more specific 484e(d). This is just wrong. First, there is only need to resort to the specific/general cannon where there is conflict. There is no conflict here, 490.2 was passed after 484e(d) and specifically addresses 484e(d) (Notwithstanding 487 or any other provision of law defining grand theft). And even if there could be said to be conflict, application of leges posteriores priores contrarias abrogant resolves the conflict in favor of 490.2.
I am not saying I cannot be convinced that Mr. Cuen's convictions were ineligible for Prop47 relief, but this opinion didn't come close.
Too bad you cannot be a judge on these panels regarding 484e d. You seem to understand and articulate what's so obvious to all but the Appellant Court. Would be great if the Supreme court can quickly review these cases that have been granted for review so that those waiting in appellant court (myself included) could avoid our petitions to the Supreme Court. Right now if the case is reversed the People are petitioning and if they are affirmed the apellants are petitioning for review. This is so frustrating because either way all cases are being sent up.
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