The issue decided in this case has a split of opinions within the California District Courts of Appeal; is a conviction for PC 484e(d) facially eligible for relief under PC 1170.18? Three statutes are involved, PC484e(d), PC 490.2, and PC 1170.18. For some reason, rather than conduct a tight statutory analysis in these (and other Prop 47) cases, the District courts seem hell-bent on heading straight toward the murky waters of policy arguments without first examining the statutory text in detail.
The facts here are that in June of 2014, Mr. King tried to buy an iPad using someone else's credit card. He ended up pleading guilty to grand theft under PC 484e(d) which prohibits obtaining or possessing "access card account information" of an account validly issued to somebody else, without consent, and with the intent to use it fraudulently.
Following the November 2014 passage of Proposition 47, King petitioned the trial court under PC 1170.18 to reduce his conviction to a misdemeanor under the auspices of PC 490.2. The trial court denied King's petition and King appealed. A Second District panel affirms.
Penal Code section 1170.18 states which convictions are eligible for reductions to misdemeanors, those felony convictions in which the defendant "would have been guilty of a misdemeanor under the act that added this section had this act been in effect at the time the offense". Stated in another way, would the crime of conviction been a straight misdemeanor if committed November 5, 2014 (the day proposition 47 went into effect)?
So had King possessed the credit card, without permission and with fraudulent intent, on November 5, 2014, would it have been a misdemeanor? While Proposition 47 did not amend PC 484e, it did add PC 490.2 which says that despite what any other grand theft statute may say, "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor."
It's clear then that if King's crime was obtaining any property by theft and the property he obtained was worth 950 dollars or less, that crime, if committed on November 5, 2014, would have been a misdemeanor. This is the real question that the panel never answers. And it appears King helped them along this path by couching his argument in the fact that the iPad King tried to buy was only worth 700 dollars.
The problem with King making this argument is that his crime was not trying to buy the iPad with the credit card, but possessing the credit card with fraudulent intent. King's theft was of the access card information, not the iPad. The better, and easier, argument is that King's crime was theft of the access card information, and the access card information was "property" worth less than $950 dollars.
Rather than answer the real question; whether access card information is "property" (if it is, 490.2 applies), the panel examines the legislature's statutory "scheme" for punishing access card information crimes and asserts that to find PC 484e(d) convictions eligible under 1170.18 would nullify 484e(d). This argument is etiolated for two reasons. First, it ignores the cannon of leges posteriores priores contrarias abrogant. Second, it is logically incorrect. If access card information is "property" and stealing "property" of any value, however slight, is punishable, theft of access card information with fraudulent intent would still be a crime even if the value of the information was negligible (akin to stealing a blank check from a closed account).
Someday an appellate court will stop dancing around the issue and decide whether access card information is "property" for purposes of Penal Code section 490.2. Pity the courts have already wasted the opportunity to do so.
No comments:
Post a Comment