I recently commented on People v. Cuen, an opinion holding that grand theft by way of unlawful possession of access card information, PC 484e(d), did not fall within the list of offenses eligible for reduction to a misdemeanor under PC 490.2. Or to be more concise, Cuen said Proposition 47 did not affect 484e(d). Ignoring the result, Cuen was a poorly reasoned decision for the reasons stated in my post, most notably quickly jettisoning a judicial examination of the statutory text so as to proceed to Delphic policy arguments.
This First District panel agrees.
Mr. Romanowski pled guilty to 484e(d), felony grand theft of access card information. Following the passage of Proposition 47 in the November 2014 election, he petitioned the court to reduce his 484e(d) conviction to a misdemeanor via PC 1170.18. Romanowski's argued that 490.2 explicitly includes any statute defining grand theft and that 484e(d) defines grand theft. Pretty simple. The trial court denied the petition, accepting the prosecution's argument that PC 484e(d) was, "akin to identity theft under section 530.5, which was beyond the scope of Proposition 47." This was a first for me as I was previously unaware of the judicial cannon of statutory "kinship" and that it could legitimately override clear statutory text.
The appellate panel kindly ignores the trial court's Appalachian creation and substitutes a pretty straightforward statutory analysis. Since PC 490.2 applies to any "provision of law defining grand theft" and PC 484e(d) is clearly a provision of law defining grand theft, 484e(d) falls within 490.2. If the access card information supporting Romanowski's conviction was worth less than 950 dollars, he is eligible to have his conviction reduced to a misdemeanor. The court remands to the trial court to determine the value of the access card information.
Now there is a split of opinion among, and within (see People v. Grayson), the District Courts of Appeal.
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