People v. Weir

• Decision Date: 29 March 2019
• Docket Number: D073626
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Zachary WEIR, Defendant and Appellant.

33 Cal.App.5th 868

245 Cal.Rptr.3d 387

The PEOPLE, Plaintiff and Respondent,

v.Zachary WEIR, Defendant and Appellant.

D073626

Court of Appeal, Fourth District, Division 1, California.

Filed March 29, 2019

John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P. J.

After a jury trial, defendant Zachary Weir was convicted of four counts of felony possession of personal identifying information ( Pen. Code, § 530.5, subds. (c)(1) & (c)(2) ).¹ On appeal, Weir contends that his felony convictions should have been classified as misdemeanors under Proposition 47's enactment of section 490.2 defining petty theft.²

The issue of which offenses are and are not subject to reclassification under Proposition 47 is currently a matter of debate in our courts, as evidenced by the number of such cases pending review in our high court. (See People v. Sanders (2018) 22 Cal.App.5th 397, 231 Cal.Rptr.3d 477, rev. granted July 25, 2018, S248775 ( Sanders ); People v. Jimenez (2018) 22 Cal.App.5th 1282, 232 Cal.Rptr.3d 386, rev. granted July 25, 2018, S249397 ( Jimenez ); People v. Brayton (2018) 25 Cal.App.5th 734, 236 Cal.Rptr.3d 396, rev. granted Oct. 10, 2018, S251122 ( Brayton ).) This case requires us to interpret section 530.5, subdivision (c) ( section 530.5(c) ) and determine whether a conviction under subsections (1) and (2) of this subdivision should be reduced to a misdemeanor under section 490.2's petty theft provision. As we explain, we conclude section 530.5(c) is not subject to reclassification under Proposition 47 because section 490.2 only reclassifies theft offenses, a violation of section 530.5(c) is a nontheft offense, and to conclude otherwise would be contrary to Proposition 47's intent.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal follows a trial involving four counts of possession of personal identifying information ( § 530.5(c)(1) ) that also served as an evidentiary hearing on a probation matter involving possession of a weapon at a penal institution (§ 4502, subd. (a)).

While in custody for unrelated charges, Weir was found in possession of an object that could be used as a weapon. The San Diego District Attorney filed an information charging him with possession of a weapon at a penal institution (§ 4502, subd. (a)). Weir pleaded guilty to the offense and was placed on probation in March 2016.

In September 2017, police officers stopped Weir for smoking on the boardwalk and riding a bicycle without lights. Officers conducted a valid search and found inside his backpack an accordion folder containing the identifying information of four individuals, including identification cards, a AAA card, a bank deposit record with an account number, a social security card, military records, and medical records. Weir was arrested and his probation summarily revoked.

The San Diego District Attorney filed an information charging Weir with four felony counts of obtaining personal identifying information with intent to defraud ( § 530.5(c)(1) ), each with allegations of a prior conviction for a similar offense ( § 530.5(c)(2) ). A jury convicted Weir on all four counts. The court sentenced him to a total of five years eight months in county jail, comprised of the four counts of possession of personal identifying information, one count of possession of a weapon at a penal institution, and two prior prison enhancements.

DISCUSSION

Weir contends that because no evidence was presented regarding whether the value of the personal identifying information in his possession exceeded $950, his convictions under section 530.5(c)(1) and (c)(2) should be reduced to misdemeanor convictions under section 490.2's petty theft provision. As we will explain, offenses under section 530.5 are not theft offenses and do not fall within the scope of section 490.2. Weir's felony convictions are therefore ineligible for reclassification as misdemeanor petty theft.

Because the facts are not in dispute, our task is to determine whether Proposition 47 applies to a conviction under section 530.5(c)(1) and (c)(2). This presents a pure question of law, subject to de novo review. ( People v. Bush (2016) 245 Cal.App.4th 992, 1003, 200 Cal.Rptr.3d 190.) The court's role in interpreting a statute is "to ascertain the Legislature's intent so as to effectuate the purpose of the law." ( People v. Barba (2012) 211 Cal.App.4th 214, 222, 149 Cal.Rptr.3d 371 ( Barba ).)

We begin with the plain language of the statute, then look to the statute's purpose, legislative history, public policy, and statutory scheme to " ‘ " ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ " ’ " ( Barba , supra , 211 Cal.App.4th at p. 222, 149 Cal.Rptr.3d 371.) The same principles of statutory construction are applied when interpreting a voter initiative. ( People v. Canty (2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168 ).

IProposition 47's Purpose and Scope

"Approved by the voters in 2014, Proposition 47 (the ‘Safe Neighborhoods and Schools Act’) reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new ... section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." ( People v. Page (2017) 3 Cal.5th 1175, 1179, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ).)

Section 490.2, subdivision (a) provides:

"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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."

Proposition 47's addition of section 490.2 specifically reduced punishment for the "category of theft crimes ... that could previously be ‘charged as grand theft’ simply because ‘the crime involves the theft of certain property’ " by creating a $950 threshold regardless of the type of property involved. ( People v. Romanowski (2017) 2 Cal.5th 903, 910, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35 (Voter Information Guide).) This section was added to target certain "nonserious and nonviolent property and drug offenses": grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession. ( Ibid . )

By requiring misdemeanors for these types of crimes, Proposition 47 intended to focus prison spending on serious and violent offenses and redirect savings to provide crime prevention and support services in schools, trauma services for victims of crime, and mental health and substance abuse treatment for those already in the justice system. (Voter Information Guide, supra , text of Prop. 47, § 2, at p. 70.)

II California Penal Code Section 530.5 is a Nontheft Offense

We must decide whether a violation of section 530.5(c)(1) and (c)(2) is considered "obtaining any property by theft" and would constitute petty theft under section 490.2. Section 530.5(c) reads:

"(1) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment.

"(2) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and who has previously been convicted of a violation of this section, upon conviction therefor shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

"(3) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of 10 or more other persons is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170."

Subdivision (a) of this statute also proscribes use of personal identifying information for "any unlawful purpose." "Personal identifying information" is defined in section 530.55, subdivision (b), and encompasses any "name, address, telephone number, health insurance number, taxpayer identification number ... checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data ... credit card number of an individual person, or an equivalent form of identification."

Although a violation of section 530.5 is commonly referred to as identity theft, the plain...