P v. Thompson (2nd Dist., Div.4): A Disciplined Opinion & Sloppy Dissent re PC 490.2 and 484d(e)

Proposition 47, the voter initiative passed November 4, 2014, has given rise to novel issues that have provided a unique glimpse into the judicial discipline and, in my opinion, judicial competence, of California's intermediate courts of appeal.  Presented with new legislation for which there exists no binding authority, California's district courts of appeal have issued opinions (regardless of outcome) that would embarrass a first year law student, as well as opinions that demonstrate a thorough knowledge of, and disciplined application of, the cannons of statutory interpretation.

This opinion is an example of the latter.  The dissent, unfortunately, is an example of the former.

Back in 2011, Mr. Thompson found someone else's debit card on the grounds of a gas station.  Thompson picked it up and used it to make three fraudulent purchases.  For this he was convicted of violating California Penal Code section 484e(d).

 “[e]very 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.”

 Following the passage of Proposition 47, Thompson petitioned the trial court to reduce his 484e(d) conviction to a misdemeanor via Penal Code section 1170.18.  The basis for his petition was found in Penal
Code section 490.2.

“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 . . . .”

The trial court, reason unstated, ruled that Thompson's 484e(d) conviction did not qualify under 490.2.  The Second District panel, in a 2-1 decision, reverses.  There is a split of authority on this issue already.  But what distinguishes this opinion is it is the first opinion to contain a thorough statutory analysis based upon the accepted cannon of statutory interpretation: first, examine the words of the statute at issue within the context of the entire statute, and then within the context of the entire code.  If the words, given their ordinary meaning, provide the answer, the job is done.  

Only if the words are capable of more than one reasonable meaning should the court begin down the road of looking at ballot pamphlets, statements by proponents and opponents of initiatives, and otherwise trying to get inside the head of the "average voter".

The words at issue here are susceptible of only one meaning regarding whether 484e(d) is textually excluded from section 490.2.  It is not excluded.  The words "Notwithstanding . . . any other provision of law defining grand theft" mean that 484e(d) is not categorically excluded from 490.2.  But that is not the end of the issue.  The next issue is whether 484e(d) is a crime of "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [950 bucks]."  To answer this question requires determining whether access card information is "property" and, if so, whether the access card information is worth less than 950 dollars.

I leave it to the reader to determine the persuasiveness of the legal analysis.  But you cannot fault the opinion's method of analysis, which is the correct method.

The dissent, unsurprisingly, skips any real meaningful statutory analysis.  Instead it posits that not all 484e(d) convictions involve a "taking" because 484e(d) prohibits acquiring or retaining access card information, without authorization, and with fraudulent intent.  According to the dissent, retaining access card information without authorization is not a "taking" thus taking 484e(d) convictions outside those described in 490.2.

This is embarrassingly wrong.  A "taking", according to the California Supreme Court, includes retaining possession of property, even if originally possessed pursuant to authorization, when the authorization expires.  This is the definition of embezzlement, which has been theft since the times of Blackstone.  Keeping a rental car after your contract expires is a taking.  P v. Carr.  Taking a test drive and keeping the car for a week is a "taking".  P v. Hutchings.

Which just goes to show that not only does judicial discipline make the job easier, it also makes it less likely you'll write something silly.