Filed 9/22/20 P. v. Chi CA2/6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B283968
(Super. Ct. No. 2017008363)
Plaintiff and Appellant, (Ventura County)
v.
OPINION FOLLOWING
MIGUEL ANGEL CHI, TRANSFER FROM
SUPREME COURT
Defendant and Respondent.
The People appealed the trial court’s order dismissing the
three counts against Miguel Angel Chi for felony misuse of
personal identifying information of another (Pen. Code, § 530.5,
subd. (a)).1 After we affirmed the order, the California Supreme
Court granted review. (People v. Chi (May 29, 2018, B283968)
[nonpub. opn.], review granted Aug. 8, 2018, S249660.)
All statutory references are to the Penal Code. Citations
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to Penal Code section 530.5, subdivision (a) shall appear as
section 530.5(a).
Following its decision in a related case, People v. Jimenez
(2020) 9 Cal.5th 53 (Jimenez), the Supreme Court transferred the
matter back to this court with directions to vacate our prior
opinion and to reconsider the cause in light of Jimenez. Having
done so, we conclude Jimenez requires reversal of the trial court’s
order of dismissal. We therefore reverse and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
On three occasions, Chi went into a commercial
establishment during normal business hours and fraudulently
used another person’s credit cards to make purchases valued at
$950 or less. Specifically, Chi used the cards to purchase $251.55
worth of merchandise from Kohl’s, $578 worth of merchandise
from Home Depot and some beverages from Stagecoach Liquor
Store. The People filed a complaint charging Chi with three
felony violations of section 530.5(a) for misuse of the victim’s
personal identifying information plus a misdemeanor count of
receiving stolen property (§ 496, subd. (a)). (People v. Chi, supra,
B283968.)
At the preliminary hearing, the magistrate declined to hold
Chi to answer for the three section 530.5(a) charges. Relying
primarily upon People v. Gonzales (2017) 2 Cal.5th 858
(Gonzales), the magistrate determined Chi’s use of the credit
cards was analogous to the fraudulent use of a check, and that
the identity theft violations “under the case law as it stands . . .
are not eligible to be charged as [section] 530.5 felonies.” (People
v. Chi, supra, B283968.)
The People rejected the magistrate’s invitation to reduce
the charges to misdemeanor shoplifting under section 459.5.
Instead, they filed an information which again included the three
felony section 530.5(a) counts. Chi moved to set aside the
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information pursuant to section 995. (People v. Chi, supra,
B283968.)
Agreeing with the magistrate’s analysis, the trial court
granted Chi’s motion over the People’s objection. (People v. Chi,
supra, B283968.) Chi pled guilty to the charge of receiving stolen
property and was placed on conditional revocable release with
180 days in jail. The sentence was deemed served. The People
appealed the order dismissing the three section 530.5(a) counts.
In our prior opinion, we agreed with the trial court’s decision.
Based on our interpretation of then-existing precedent, we upheld
the court’s determination that Chi’s section 530.5(a) offenses
qualified as misdemeanor shoplifting, thereby entitling him to
the requested relief. (People v. Chi, supra, B283968.)
DISCUSSION
Proposition 47, which was enacted in 2014, added section
459.5, which created the crime of shoplifting. Section 459.5,
subdivision (a) provides: “Notwithstanding [s]ection 459,
shoplifting is defined as entering a commercial establishment
with intent to commit larceny while that establishment is open
during regular business hours, where the value of the property
that is taken or intended to be taken does not exceed nine
hundred fifty dollars ($950). Any other entry into a commercial
establishment with intent to commit larceny is burglary.”
Section 459.5, subdivision (b) expressly limits charging on
shoplifting: “Any act of shoplifting as defined in subdivision (a)
shall be charged as shoplifting. No person who is charged with
shoplifting may also be charged with burglary or theft of the
same property.”
The issue in Jimenez was “whether a felony conviction for
misuse of personal identifying information under section 530.5,
subdivision (a) can be reduced to misdemeanor shoplifting under
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Proposition 47.” (Jimenez, supra, 9 Cal.5th at p. 58.) The Courts
of Appeal were divided on the issue. The Supreme Court resolved
the conflict by holding that no such reduction can occur because
“misuse of personal identifying information is not a ‘theft’
offense” under Proposition 47. (Jimenez, at p. 71.) Jimenez
explains that although the crime is often referred to as “‘identity
theft,’” the statutory language does not include the term “theft” or
contain the requirements central to a theft crime. (Id. at p. 63.)
The Court emphasized that “[t]he new shoplifting offenses
are ill suited to punish misuse of identifying information.
[Citations.] The offenses are fundamentally different, and they
reflect different legislative rationales. . . . [U]nauthorized entries
— of the sort still chargeable as burglary — present an increased
danger of violence because the entry is unwelcome, unexpected,
and results in panic and risk to personal safety. [Citation.] In
enacting the shoplifting statute, ‘the electorate signaled that
these interests do not apply in the same way’ during the day,
when a person is stealing property worth $950 or less ‘in a place
where he or she has been invited to peruse the goods and services
that are on offer.’” (Jimenez, supra, 9 Cal.5th at p. 65, italics
omitted.) In contrast, section 530.5(a) “prohibits a person from
‘acquiring, retaining, or using information, rather than taking it,’
— itself a fair indicator that the Legislature was concerned with
use, not theft. [Citation.] And on its face, it addresses harms
reaching well beyond theft, implicating issues of privacy and
control of personal data. [Citation.]” (Jimenez, at p. 65.)
We are bound by our Supreme Court’s precedent.
(AutoEquity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455-456.) Since Chi’s three section 530.5(a) counts do not qualify
as thefts, the trial court erred by dismissing those counts. (See
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Jimenez, supra, 9 Cal.5th at p. 71.) Consequently, Chi is not
entitled to the Proposition 47 relief granted by the trial court.
DISPOSITION
The trial court’s order dismissing Chi’s three section 530.5
(a) felony counts (counts 1-3) is reversed and the matter is
remanded to the trial court for further proceedings in accordance
with Jimenez.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
Gregory D. Totten, District Attorney, Michelle J. Contois,
for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, William M. Quest,
Senior Deputy Public Defender, for Defendant and Respondent.
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