Metropolitan News-Enterprise


Tuesday, March 3, 2020


Page 1


California Supreme Court:

Identity Theft Conviction Can’t Be Lowered to Misdemeanor

Cuéllar Says That for Purpose of Sentence Reduction Under Proposition 47, Persons Whose Conduct Was Identical Will or Won’t Be Eligible Depending on the Offense for Which There Was a Conviction


By a MetNews Staff Writer


Two felony convictions for identity theft were improperly reduced to convictions for misdemeanor shoplifting under Proposition 47, the California Supreme Court held yesterday, defining the contours of its 2017 opinion which led the trial court and the Court of Appeal for this district to reach a contrary conclusion.

In that 2017 decision, it was held that Giovanni Gonzales was eligible for a recall of his sentence and for resentencing where his offense—burglary—entailed twice entering a bank for the purpose of cashing a stolen check, each in an amount less than $950. In yesterday’s decision, it was held that Miguel Angel Jimenez is not eligible for a recall of his sentence and for resentencing where his offense—identity theft—entailed twice entering a check-cashing store for the purpose of cashing a stolen check, each in an amount less than $950.

Although the conduct was the same, Justice Mariano-Florentino Cuéllar said in his opinion for a unanimous court, the charged offenses were not.

Proposition 47, enacted by voters in 2014, created Penal Code §459.5 which provides that “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).” The section specifies that a person who commits shoplifting cannot “be charged with burglary or theft of the same property.”

No Taking

What Jimenez was charged with, Cuéllar pointed out, was a misuse of personal identifying information, in violation of Penal Code §530.5(a), a felony. The jurist wrote:

“Although misuse of identifying information is sometimes colloquially described as ‘identity theft,’ the language, context, and history of section 530.5, subdivision (a) tells us no ‘burglary or theft’ offense is committed by virtue of a defendant violating that statute.”

He went on to say:

“Section 530.5 criminalizes the willful use of someone’s personal identifying information for an unlawful purpose, not an unlawful taking. It is not a theft offense because criminal liability pivots on how the information was used rather than how it was acquired. The offense therefore evinces a concern with the panoply of harms occurring when personal information is no longer personal.”

Perren’s Opinion

Cuéllar quoted the Court of Appeal’s opinion, by Justice Steven Z. Perren of this district’s Div. Six, as saying (with added italics):

“Jimenez’s conduct is identical to Gonzales’s conduct. They both entered a commercial establishment during business hours for the purpose of cashing stolen checks valued at less than $950 each.”

He commented:

“Yet Jimenez’s conduct, though unquestionably relevant, bears on only one aspect of our analysis. What triggers section 459.5, subdivision (b)’s bar is not only whether a defendant’s course of conduct includes an act of shoplifting, but also whether the charged crime is burglary or theft of the same property. Conduct indeed bears on whether a defendant ‘may . . . be charged with burglary or theft of the same property,’ but not on whether section 530.5 creates a ‘theft’ offense.”

Charged Offense

Cuéllar elaborated.

“[T]hough the defendant in Gonzales committed conduct that could have been charged as misuse of identifying information—and, in Jimenez’s case, was—we found him eligible for a reduction because he was charged and convicted of burglary, which Proposition 47 did alter….Only if the offense is eligible for reclassification must a court consider whether a defendant’s conduct fulfills the elements of shoplifting, bringing it within Proposition 47’s scope.”

The case is People v. Jimenez, 2020 S.O.S. 932.


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