Filed 9/22/20 P. v. Case 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B283838
(Super. Ct. No. 2016045507)
Plaintiff and Appellant, (Ventura County)
v.
OPINION FOLLOWING
TIMOTHY EUGENE CASE, TRANSFER FROM
SUPREME COURT
Defendant and Respondent.
Timothy Eugene Case pled guilty to nine felony counts of
misuse of the personal identifying information of another (Pen.
Code, § 530.5, subd. (a)).1 Over the People’s objection, the trial
court granted Case’s motion to reduce the section 530.5(a)
convictions to misdemeanors pursuant to Proposition 47 and
section 490.2. The People appealed that order, which we
affirmed. The California Supreme Court granted review. (People
All statutory references are to the Penal Code.
1
Subsequent citations to section 530.5, subdivision (a) will appear
as section 530.5(a).
v. Case (May 31, 2018, B283838) [nonpub. opn.], review granted
Aug. 8, 2018, S249667.)
After deciding 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. We therefore
reverse and remand for resentencing.
FACTS AND PROCEDURAL HISTORY
In 2016, Case entered five different stores in Simi Valley
and used a stolen credit card to purchase e-cigarette devices, a
digital scale, Ziploc baggies, alcohol, two packs of cigarettes,
batteries, food and two prepaid cell phones. The total cost of the
items was $849.17.
The prosecution charged these offenses as felony misuse of
personal identifying information under section 530.5(a). At the
preliminary hearing, Case’s attorney argued the offenses should
be charged as misdemeanors or the “Court should exercise its
discretion in compliance with the will of the electorate that has
been expressed through the passage of Prop[osition] 47 and
reduce these counts, the 470s and 530.5, which remain wobblers
via 17 (b).” The magistrate denied the request and also declined
to reduce the counts to misdemeanors under section 17,
subdivision (b). Case was held to answer on all counts.
After pleading guilty to the nine felony section 530.5(a)
offenses, Case renewed his request to reduce the offenses to
misdemeanors pursuant to Proposition 47. The trial court
reviewed People v. Gonzales (2017) 2 Cal.5th 858 and People v.
Romanowski (2017) 2 Cal.5th 903, and determined that under
the reasoning and holdings in those cases, it was “obligated to
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declare Counts 1 through 9 as misdemeanors.” (People v. Case,
supra, B283838.)
Following reclassification of the convictions in 2017, the
trial court sentenced Case to the full six-month term on each of
the nine counts, “consecutive to one another and consecutive to
each other for a total of four [and] 1/2 years in the county jail.”
(People v. Case, supra, B283838.)
In our prior opinion, we agreed with the trial court’s
analysis. Based on our interpretation of then-existing precedent,
we upheld the court’s determination that Case’s section 530.5(a)
offenses qualified as misdemeanor shoplifting, thereby entitling
him to the requested relief. (People v. Case, supra, B283838.)
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
Proposition 47.” (Jimenez, supra, 9 Cal.5th at p. 58.) The Courts
3
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 Case’s section 530.5(a) convictions do not qualify
as theft convictions, they may not be reclassified as misdemeanor
shoplifting convictions. (See Jimenez, supra, 9 Cal.5th at p. 71.)
4
Consequently, Case is not entitled to the Proposition 47 relief
granted by the trial court.
DISPOSITION
The trial court’s order reducing Case’s nine section 530.5(a)
felony convictions to misdemeanors is reversed and the matter is
remanded to the trial court for sentencing consistent with the
Jimenez opinion.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
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Nancy L. Ayers, Judge
Superior Court County of Ventura
______________________________
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen,
Senior Deputy District Attorney, for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, Russell L. Baker and
Michael McMahon, Senior Deputy Public Defenders, for
Defendant and Respondent.
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People v. Case CA2/6
Combined Opinion