People v. Jimenez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Appellant,

v.

MIGUEL ANGEL JIMENEZ,

Defendant and Respondent.

S249397

Second Appellate District, Division Six

B283858

Ventura County Superior Court

2016041618

March 2, 2020

Justice Cuéllar authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Kruger, and Groban concurred.

PEOPLE v. JIMENEZ

S249397

Opinion of the Court by Cuéllar, J.

Consumers today entrust businesses with more personal

data than ever before. Residing on remote servers and secured

by protocols of varying strength, that trove of data is

increasingly susceptible to breach and misuse. (See generally

Douglas, 2020 Identity Theft Statistics (January 2020)

Consumer Affairs <https://www.consumeraffairs.com/

finance/identity-theft-statistics.html> [as of Mar. 2, 2020].)1

Like many states, California criminalizes not only the nefarious

ends enabled by information misuse — credit card fraud, for

instance, and tax fraud — but also the act of using personal

identifying information without authorization. (Pen. Code, §

530.5, subd. (a).)2 That distinction matters in this case.

What we must decide here is 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, which was approved by voters

in the November 4, 2014 General Election. We hold that it

cannot. Proposition 47 added section 459.5 to the Penal Code,

which dictates that an “act of shoplifting . . . shall be charged as

shoplifting,” and that “[n]o person who is charged with

1

All Internet citations in this opinion are archived by year,

docket number and case name at

<http://www.courts.ca.gov/38324.htm>.

2

All further unlabeled statutory references are to the Penal

Code.

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shoplifting may also be charged with burglary or theft of the

same property.” (§ 459.5, subd. (b).) Its prohibition applies only

to “burglary or theft” offenses. (Ibid.) 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.

Reaching the opposite conclusion, the Court of Appeal

below in People v. Jimenez (2018) 22 Cal.App.5th 1282 (Jimenez)

relied on the similarity between defendant’s conduct here —

cashing a false check — and the conduct of the defendant in

People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). What we

held in Gonzales is that a burglary conviction based on conduct

meeting the requirements for shoplifting under section 459.5

could be reduced to shoplifting under Proposition 47. (Gonzales,

supra, 2 Cal.5th at p. 862.) Our holding gave effect to section

459.5, subdivision (b), which provides that a person who

commits “[a]ny act of shoplifting” cannot “be charged with

burglary or theft of the same property.” (Italics added.) But

Jimenez was not charged with burglary, and in any event, our

inquiry here is not whether Jimenez’s conduct could conceivably

be called “shoplifting.” We must address instead whether the

public offense defined in section 530.5, subdivision (a), of which

he was convicted, qualifies as a “theft” offense under section

459.5, subdivision (b).

It does not. 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

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concern with the panoply of harms occurring when personal

information is no longer personal.

A conviction for misuse of identifying information is not

subject to reclassification as misdemeanor shoplifting. Because

the Court of Appeal held otherwise, we reverse its judgment and

remand.

I.

In June 2016, defendant Miguel Angel Jimenez twice

entered Loans Plus, a commercial check-cashing store in

Oxnard, to cash a check from OuterWall, Inc., made payable to

himself. The first check sought $632.47, and the second,

$596.60. Each contained OuterWall’s personal identifying

information in the form of an account number. On both

occasions, Loans Plus was open for business. And on both

occasions, OuterWall had not issued the checks in Jimenez’s

name, nor did Jimenez have permission to possess, issue, or use

the checks.

The People charged Jimenez with two felony counts of

misusing personal identifying information in violation of section

530.5, subdivision (a) –– an offense the prosecution informally

calls “misuse of identity” and the defendant colloquially terms

“identity theft.” That section prohibits “willfully obtain[ing]

personal identifying information” of another person “and us[ing]

that information for any unlawful purpose, including to obtain,

or attempt to obtain, credit, goods, services, real property, or

medical information without the consent of that person.”

(§ 530.5, subd. (a).) The jury instructions provided the unlawful

purpose for which Jimenez used OuterWall’s account

information: “unlawfully obtaining or attempting to obtain

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money in the form of cash in exchange for a presented check

without the consent of the other person.” The jury convicted

Jimenez of both counts.

In May 2017, Jimenez moved to reclassify his felony

convictions to misdemeanors under Proposition 47: The Safe

Neighborhoods and Schools Act. To decrease the number of

people in prison for nonviolent crimes, Proposition 47

reclassified certain drug- and theft-related offenses from

felonies or “wobblers” to misdemeanors. It did this by amending

the statutes that defined those crimes and redefining the way

terms are understood throughout the Penal Code. (See Voter

Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,

§ 8, p. 72 (Voter Information Guide) [adding, for instance,

§ 490.2 to lower the punishment for certain categories of grand

theft “[n]otwithstanding . . . any other provision of law defining

grand theft”].)

One such amendment enshrined in California law a new

misdemeanor shoplifting offense. (§ 459.5.) Distinct from felony

burglary based on the value of the goods, the structure entered,

and the time of entry, the new shoplifting offense prohibits

entering a commercial establishment “with intent to commit

larceny” while the establishment is open during business hours,

and where the value of the property taken or intended to be

taken is $950 or less. (§ 459.5, subd. (a).) Also affecting the

scope of this new offense is the following limitation: Any act of

shoplifting “shall be charged as shoplifting,” and, “[n]o person

who is charged with shoplifting may also be charged with

burglary or theft of the same property.” (Id., subd. (b).)

Jimenez made the case for relief relying on our recent

opinion in Gonzales, supra, 2 Cal.5th at page 862, in which we

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held that the shoplifting statute applied to an entry with intent

to commit nonlarcenous theft. Like Jimenez, the defendant in

Gonzales had entered a commercial establishment and cashed

two checks containing another person’s bank account

information. (Ibid.) Because Jimenez committed essentially the

same conduct as Gonzales, Jimenez argued his conduct, too,

constituted misdemeanor shoplifting under section 459.5,

subdivision (a). The trial court granted Jimenez’s motion. It

concluded that between Gonzales and our earlier opinion in

People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), its

“ ‘hands ha[d] been somewhat tied.’ ” (Jimenez, supra, 22

Cal.App.5th at p. 1286.) What we held in Romanowski is that

theft of access card information could be reduced to a

misdemeanor under another provision of Proposition 47,

codified at Penal Code section 490.2. (Romanowski, supra, 2

Cal.5th at pp. 905–906.) Romanowski and Gonzales, the court

said, mandated reduction of “ ‘conduct that has been described

in Proposition 47 as a shoplifting type of offense.’ ” (Jimenez, at

p. 1286.) “ ‘And even though [this case] involves a different

charge,’ it observed, ‘it appears to be somewhat of a theft charge

which was the focus of Gonzale[s] and Romanowski.’ ” (Ibid.)

The People appealed the trial court’s decision to reduce

Jimenez’s conviction, and the Court of Appeal affirmed,

reasoning that Jimenez’s criminal conduct is “identical to

Gonzales’s conduct.” (Jimenez, supra, 22 Cal.App.5th at

p. 1289.) It observed that “both entered a commercial

establishment during business hours for the purpose of cashing

stolen checks valued at less than $950 each. Both defendants

[entered with intent to commit] ‘theft by false pretenses,’ which

‘now constitutes shoplifting under [section 459.5, subdivision

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(a)].’ ” (Ibid., quoting Gonzales, supra, 2 Cal.5th at p. 862.) And,

the court explained, where a defendant’s “underlying conduct

constituted shoplifting,” the preclusive effect of section 459.5,

subdivision (b) — which provides that “[a]ny act of shoplifting

as defined in subdivision (a) shall be charged as shoplifting”

(§ 459.5, subd. (b)) — barred a charge of identity theft. (Jimenez,

supra, 22 Cal.App.5th at p. 1291.) In sum, the court said, “[t]hat

Jimenez committed identity theft in the course of the shoplifting

does not alter the fact that he committed shoplifting.” (Id. at p.

1290.)

The District Attorney filed a petition for review. We

granted review to determine whether a felony conviction for

misuse of personal identifying information can be reduced to

misdemeanor shoplifting under Proposition 47.

II.

As with most cases arising from Proposition 47, this one

requires that we understand the interaction between a statutory

scheme enacted by the Legislature and one enacted by the

public. Because the scope of these statutory schemes is a

question of law, we review de novo the Court of Appeal’s

interpretation of both the shoplifting statute enacted through

Proposition 47 and the preexisting section 530.5, subdivision (a),

of which Jimenez was convicted. (Apple Inc. v. Superior Court

(2013) 56 Cal.4th 128, 135.) We look first to “ ‘the language of

the statute, affording the words their ordinary and usual

meaning and viewing them in their statutory context.’ ” (People

v. Gonzales (2018) 6 Cal.5th 44, 49–50.) We must construe

statutory language in context, bearing in mind the statutory

purpose, and giving effect to the intended purpose of an

initiative’s provisions. (Id. at p. 50; see California Cannabis

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Coalition v. City of Upland (2017) 3 Cal.5th 924, 933 [explaining

that our “primary concern is giving effect to the intended

purpose of the provisions at issue”].) We may also consider

extrinsic sources, “such as an initiative’s election materials, to

glean the electorate’s intended purpose.” (People v. Gonzales,

supra, 6 Cal.5th at p. 50; Larkin v. Workers’ Comp. Appeals Bd.

(2015) 62 Cal.4th 152, 158 [“[W]e may look to various extrinsic

sources . . . to assist us in gleaning the [voters’] intended

purpose”].)

Applying these principles, we conclude that section 459.5

does not encompass misuse of identifying information. The

preclusive language of section 459.5, subdivision (b) — that

“[a]ny act of shoplifting as defined in subdivision (a) shall be

charged as shoplifting,” and “[n]o person who is charged with

shoplifting may also be charged with theft or burglary of the

same property” — applies only as to theft or burglary offenses.

Section 530.5, subdivision (a) does not define such an offense.

A.

We first consider the statutory scheme approved by voters

five years ago. The misdemeanor shoplifting statute under

which Jimenez seeks a reduction is section 459.5. It is one of

two new theft crimes reflecting the electorate’s decision to

downgrade certain felonies; the other is section 490.2, which

defines petty theft. (Romanowski, supra, 2 Cal.5th at p. 907.)

Section 459.5, subdivision (a), provides: “Notwithstanding

Section 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).” Subdivision (b)

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next provides the preclusive language on which Jimenez

primarily relies: “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.” (Id., subd. (b).)

We granted review to determine whether Jimenez can

secure relief under section 1170.18, subdivision (a), which

allows defendants “serving a sentence for a conviction . . . of a

felony or felonies” on Proposition 47’s effective date of

November 5, 2014, to petition to reclassify their eligible felony

offenses to misdemeanor shoplifting. (§ 1170.18, subd. (a), added

by Prop. 47, § 14; People v. Martinez (2018) 4 Cal.5th 647, 654

(Martinez).) But Jimenez was not a person “serving a sentence”

for his conviction on November 5, 2014. Indeed, he did not even

commit the relevant crime until 2016. He is ineligible for relief

under section 1170.18. Jimenez, however, is not out of luck. We

have previously held that “[d]efendants who had not yet been

sentenced as of Proposition 47’s effective date are entitled to

initial sentencing under Proposition 47’s amended penalty

provisions.” (People v. Lara (2019) 6 Cal.5th 1128, 1131.) This

seems the more appropriate framework for Jimenez, who was

neither sentenced nor convicted as of Proposition 47’s effective

date. Under either section 1170.18 or the standard in People v.

Lara, Jimenez’s entitlement to relief turns on whether the new

shoplifting statute at section 459.5 altered or redefined the

offense set forth in section 530.5, subdivision (a) — in other

words, whether section 459.5 permitted the prosecutor to charge

Jimenez with misuse of personal identifying information, or only

with shoplifting.

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The People charged a violation of, and Jimenez was

convicted of violating, section 530.5, subdivision (a). Entitled

“Unauthorized use of personal identifying information of

another person,” it provides: “Every person who willfully

obtains personal identifying information . . . of another person,

and uses that information for any unlawful purpose, including

to obtain, or attempt to obtain, credit, goods, services, real

property, or medical information without the consent of that

person, is guilty of a public offense . . . .” (§ 530.5, subd. (a).)

Personal identifying information is elsewhere defined to include

“any name, address, [or] telephone number,” as well as any

“checking account number” and a host of other personal

identifying information — from medical information and social

security numbers to telecommunications data and mothers’

maiden names. (§ 530.55, subd. (b).) In short, a conviction

under section 530.5, subdivision (a) requires proof “(1) that the

person willfully obtain[ed] personal identifying information

belonging to someone else; (2) that the person use[d] that

information for any unlawful purpose; and (3) that the person

who use[d] the personal identifying information d[id] so without

the consent of the person whose personal identifying

information [was] being used.” (People v. Bollaert (2016) 248

Cal.App.4th 699, 708–709, quoting People v. Barba (2012) 211

Cal.App.4th 214, 223 (Barba).)

Although lawmakers and the public sometimes refer to

section 530.5, subdivision (a)’s prohibition on the misuse of

personally identifying information as “identity theft,” section

530.5, subdivision (a) makes no mention of theft. It makes no

reference to the consolidated theft offenses in section 484. (See

Gonzales, supra, 2 Cal.5th at p. 865.) It contains no

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requirement, “central to the crime of theft[,] that the

information be stolen at all” (People v. Truong (2017) 10

Cal.App.5th 551, 562 (Truong)), or that the victim’s information

was taken with “the intent to permanently deprive the owner of

its possession” (People v. Page (2017) 3 Cal.5th 1175, 1182

(Page)). Indeed, by its very terms, the offense of misuse of

personal identifying information can be accomplished by

acquiring the information with valid consent, using it for an

unlawful purpose, and returning it.

The structure and history of section 530.5 reinforce our

understanding that “[t]he gravamen of the . . . offense is the

unlawful use of a victim’s identity.” (People v. Sanders (2018)

22 Cal.App.5th 397, 400 (Sanders).) The Legislature enacted

section 530.5 in 1997 as part of a slate of changes to California’s

Consumer Credit Reporting Agencies Act. (Stats. 1997, ch. 768,

§ 6, p. 5205.) Until section 530.5 took effect, “law enforcement

agencies generally considered the defrauded business entity . . .

to be the victim of identity theft, not the person whose identity

was stolen so that the fraud could be committed.” (Sen. Com. on

Public Safety, Analysis of Assem. Bill No. 245 (2001–2002 Reg.

Sess.) as amended May 1, 2000.) As a result, victims found it

difficult to report the crime, seek damages, and clear their

names. (Ibid.)

This vexing problem ballooned as the expansion of the

Internet made it easier than ever before to access and misuse

personal information. As part of a comprehensive attack on this

growing problem, the bill’s sponsor lobbied to create section

530.5. In contrast, “existing law [did] not provide any remedy

for the real victim: the person whose credit has been damaged

or ruined.” (Sen. Com. on Public Safety, Analysis of Assem. Bill

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No. 156 (1997–1998 Reg. Sess.) as amended July 3, 1997, p. 8.)

Instead, the sponsor said, “all existing related crimes, such as

grand theft (§ 484), fraudulent use of access cards (§§ 484d–484i)

and using another person’s identification in a financial

statement (§ 532) are crimes against parties other than the

person whose identity has been used.” (Sen. Com. on Public

Safety, Analysis of Assem. Bill No. 156 (1997–1998 Reg. Sess.)

as amended July 3, 1997, pp. 7–8.) Thus was born the offense

we now call “identity theft.” It accompanied a set of reporting

and verification requirements for consumer credit agencies, a

series of police investigation protocols for identity theft reports,

and new procedures by which victims could clear their names

and block inaccurate information from their credit files. (Id. at

pp. 2–3.)

Perhaps reflecting legislative concern to right-size the

offense relative to the perceived societal harms at issue, the

Legislature has amended section 530.5 nearly a dozen times

since its enactment. That section currently provides that court

records “shall reflect that [a] person whose identity was falsely

used to commit [a] crime did not commit the crime” (§ 530.5,

subd. (b)); creates separate offenses for acquisition or retention

(id., subd. (c)), and sale or transfer of personal identifying

information “with intent to defraud” (id., subd. (d)); prohibits

mail theft as defined in the United States Code (id., subd. (e));

and immunizes Internet service providers from liability for the

defined offenses (id., subd. (f)).

What this history reflects is a concern for the “ripples of

harm” that “flow from the initial misappropriation” of

identifying information — harm that often goes “well beyond the

actual property obtained.” (Sen. Com. on Public Safety,

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Analysis of Assem. Bill No. 2886 (2005–2006 Reg. Sess.) as

amended May 26, 2006.) Legislators recognized that “[v]ictims

cannot easily change their name, birth date, social security

number or address, and they should not have to do so.” (Sen.

Com. on Public Safety, Analysis of Sen. Bill No. 1254 (2001–

2002 Reg. Sess.) as amended Mar. 11, 2002, p. 8.) And the

Legislature’s continued revision of the statute — generally by

broadening its scope — “shows that the felony hinged on the

seriousness of the crime and of its consequences, rather than on

the type or value of property involved” as in section 459.5.

(People v. Weir (2019) 33 Cal.App.5th 868, 875 (Weir).)

Appropriately, then, section 530.5 — unlike the theft offense at

issue in Romanowski — resides in the chapter of the Penal Code

titled “False Personation and Cheats,” rather than the chapter

titled “Larceny.” (Cf. Romanowski, supra, 2 Cal.5th at p. 908;

see Truong, supra, 10 Cal.App.5th at p. 561 [“Although

commonly referred to as ‘identity theft’ [citation], the

Legislature did not categorize the crime as a theft offense”].)

That distinction is no accident. The new shoplifting

offenses are ill-suited to punish misuse of identifying

information. (See, e.g., Weir, supra, 33 Cal.App.5th 868;

Sanders, supra, 22 Cal.App.5th 397; Truong, supra, 10

Cal.App.5th 551.) The offenses are fundamentally different, and

they reflect different legislative rationales. Consider

shoplifting, whose rationale we recently discussed in People v.

Colbert (2019) 6 Cal.5th 596. We explained that unauthorized

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. (Id.

at p. 607.) In enacting the shoplifting statute, “the electorate

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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.” (Ibid.) The physical

intrusion element is missing, and with it the danger that makes

burglary more culpable than shoplifting.

Section 530.5, subdivision (a), meanwhile, evinces a lack

of concern with the time of day, the method of acquiring the

information, its value, or even what –– precisely –– is done with

it. The statute 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.

(Weir, supra, 33 Cal.App.5th at p. 874.) And on its face, it

addresses harms reaching well beyond theft, implicating issues

of privacy and control of personal data. (See Barba, supra, 211

Cal.App.4th at p. 226 [explaining that the statute aims to

“address[] disruptions caused in victims’ lives when their

personal identifying information is used”].)

From the language, structure, and history of section 530.5,

we glean that its purpose reaches far beyond what Proposition

47 pulled into its orbit. It is not a theft offense, but “an

essentially unique crime.” (Sen. Com. on Public Safety, Analysis

of Assem. Bill No. 2886, supra, as amended May 26, 2006.)

B.

Perhaps recognizing the mismatch between section 530.5

and Proposition 47, Jimenez focuses his argument on the

similarity between his conduct and that of the defendant in

Gonzales. The argument is intuitively appealing: Jimenez did,

after all, enter a commercial establishment (Loans Plus) with

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intent to commit theft by false pretenses — a course of conduct

analogous to what we decided was enough to constitute

shoplifting in Gonzales. (See Gonzales, supra, 2 Cal.5th at p.

862 [holding that because cashing a stolen check is a form of

larceny under § 490, subd. (a), a defendant’s conviction for

burglary for “entering a bank to cash a stolen check for less than

$950 . . . constitutes shoplifting under the statute”].) Jimenez

thus contends he also committed shoplifting, and, under section

459.5, subdivision (b), an act of shoplifting “shall” be charged as

shoplifting. To Jimenez, this means any conduct that a

prosecutor could reasonably treat as fulfilling the elements of

shoplifting must be charged as shoplifting, and cannot be

charged as anything else, including misuse of identifying

information.

Jimenez builds scaffolding on a tenuous foundation. His

argument presumes a defendant’s conduct, not his crime of

conviction, is what Proposition 47 sought to reclassify. The

Court of Appeal seems to have shared this view when it affirmed

the reduction to shoplifting. It explained: “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.” (Jimenez, supra,

22 Cal.App.5th at p. 1289, italics added.) 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

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same property,” but not on whether section 530.5 creates a

“theft” offense. (§ 459.5, subd. (b).)

As we conveyed in Martinez, similarity of conduct is not

pivotal. The critical question for reclassification is whether the

felony offense “ ‘would have been . . . a misdemeanor under

[Proposition 47] had [it] been in effect at the time of the

offense.’ ” (Martinez, supra, 4 Cal.5th at p. 652, quoting §

1170.18, subd. (a).) Under People v. Lara, the question varies

only in verb tense: Is the felony offense now a misdemeanor

under Proposition 47? In Martinez, although the defendant

committed conduct that, under another statute, may well have

been reduced to a misdemeanor, we found him ineligible for

resentencing because “none of the statutes amended or enacted

by Proposition 47 altered the offense [of which he was

convicted].” (Martinez, supra, 4 Cal.5th at p. 653.) Conversely,

though 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. (Gonzales, supra, 2 Cal.5th at pp. 872,

876.) 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.

We can confirm this categorical understanding of

Proposition 47’s scope through the initiative’s express “purpose

and intent” to “[r]equire misdemeanors instead of felonies for

nonserious, nonviolent crimes like petty theft and drug

possession” absent a disqualifying prior. (Prop. 47, § 3(3).) In

the same terms, the Legislative Analyst explained that the

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initiative applied only to certain kinds of offenses, noting that it

“[r]equires misdemeanor sentenc[ing] instead of felony for

[specified crimes] when [the] amount involved is $950 or less”

and “[r]equires resentencing for persons serving felony

sentences for [specified] offenses unless [a] court finds [an]

unreasonable public safety risk.” (Voter Information Guide,

supra, analysis of Prop. 47 by Legis. Analyst, at p. 34.) While

we must be guided by Proposition 47’s intended purpose to

reduce punishment for certain nonserious, nonviolent offenses,

we are not free to read into it any offense we might deem

nonserious and nonviolent.

“Identity theft” is explicitly mentioned only once in

Proposition 47: to create an exception to the Proposition’s new

rule allowing certain convictions for forgery to be reduced to

misdemeanors. (Prop. 47, § 6.) The Legislative Analyst

explained: “Under current law, it is a wobbler crime to forge a

check of any amount. Under this measure, forging a check

worth $950 or less would always be a misdemeanor, except that

it would remain a wobbler crime if the offender commits identity

theft in connection with forging a check.” (Voter Information

Guide, supra, analysis of Prop. 47 by Legis. Analyst, at p. 35,

italics added.) The voters thus considered misuse of personal

identifying information solely in the context of maintaining

felony treatment for offenses that otherwise would be reducible

to misdemeanors. This strongly suggests voters did not intend

for “identity theft” convictions to be reduced to misdemeanors

under Proposition 47.

The cases on which Jimenez relies underscore the

centrality of the offense charged by the prosecution in the

Proposition 47 analysis. In Romanowski, for instance, we

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considered whether section 484e, subdivision (d) — prohibiting

theft of access card information — qualifies for resentencing as

petty theft under section 490.2. (Romanowski, supra, 2 Cal.5th

at p. 908.) It was no small part of our analysis that section 484e

explicitly defined theft of access card information as grand theft,

which pulled it within the ambit of the new petty theft statute.

(Romanowski, supra, 2 Cal.5th at p. 908.) But we confirmed

that the offense also sounded in theft and sat comfortably in the

“Larceny” chapter of the Penal Code. (Id. at pp. 908–909.)

We did much the same in Page, supra, 3 Cal.5th at page

1180. What we decided is that one version of Vehicle Code

section 10851 — “taking or driving a vehicle without the owner’s

consent” — established an offense qualifying as petty theft

under the new Penal Code section 490.2. As a carve-out for

offenses otherwise deemed grand theft, that section mandates

misdemeanor punishment for a defendant who “obtain[ed] any

property by theft” where the value of the property was $950 or

less. (Page, supra, 3 Cal.5th at pp. 1180, 1183.) Although

Vehicle Code section 10851 did not “expressly designate the

offense as ‘grand theft’ ” and its prohibitions swept more broadly

than “theft,” we had previously identified a theft and non-theft

way to commit the offense. (Id. at p. 1182.) The theft version of

the vehicular offense fully mapped on to the new petty theft

statute, and we thus concluded that version, alone, was eligible

for reduction: “ ‘[A] defendant convicted under section 10851(a)

of unlawfully taking a vehicle with the intent to permanently

deprive the owner of possession’ has been convicted of stealing

the vehicle.” (Id. at p. 1184.)

The same doesn’t hold for Jimenez’s offense. Where

Vehicle Code section 10851 contemplates two permutations —

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PEOPLE v. JIMENEZ

Opinion of the Court by Cuéllar, J.

one fully satisfying the elements of petty theft after Proposition

47 — Penal Code section 530.5, subdivision (a) contains no

separate provision that, when violated, exclusively constitutes

shoplifting or even theft. Instead the offense defined in section

530.5, subdivision (a) always requires more than “entering a

commercial establishment with intent to commit larceny”

during business hours — so proving shoplifting is not sufficient

to prove misuse of identifying information under section 530.5,

subdivision (a). (See § 459.5, subd. (a); People v. Soto (2018) 23

Cal.App.5th 813, 822 [distinguishing Page and Romanowski

from offenses that are “not identified as grand theft and

require[] additional necessary elements beyond . . . theft”].)

Section 530.5, subdivision (a) also requires much less than the

elements specified in section 459.5; indeed, misuse of personal

identifying information contains none of the elements of section

459.5, subdivision (a). (Compare § 530.5, subd. (a) [“Every

person who willfully obtains personal identifying

information . . . of another person, and uses that information for

any unlawful purpose . . . is guilty of a public offense”] with

§ 459.5, subd. (a) [“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)”].)

Jimenez nonetheless maintains that we used unequivocal

language in Gonzales to hold that the only permissible charge in

a case with facts analogous to those in this case is shoplifting.

“A defendant must be charged only with shoplifting when the

statute applies,” we wrote, because “[i]t expressly prohibits

alternate charging and ensures only misdemeanor treatment for

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Opinion of the Court by Cuéllar, J.

the underlying described conduct.” (Gonzales, supra, 2 Cal.5th

at p. 876.) Jimenez further argues that Gonzales stands for the

proposition that whenever a defendant’s conduct constitutes

shoplifting, it can only be charged as shoplifting.

This argument misses the mark. Gonzales resolved a

different question: whether a defendant was eligible for

misdemeanor shoplifting resentencing under Proposition 47

when his conviction was for burglary based on a course of

conduct involving entering a store to cash a fraudulent check.

Our decision in Gonzales explained that the defendant was

eligible for resentencing on those facts because of what was

essentially a perfect overlap between the charged burglary and

the facts that would have supported the shoplifting charge: The

course of conduct rested on precisely the same entry, with the

same intent, to take the same property, as would have supported

a shoplifting charge. So Proposition 47’s mandate that “[a]ny

act of shoplifting . . . be charged as shoplifting” and “[n]o person

who is charged with shoplifting may also be charged with

burglary or theft of the same property” applied with full force.

When we explained that a “defendant must be charged only with

shoplifting when the statute applies” (Gonzales, supra, 2 Cal.5th

at p. 876), what we meant is simply that a person whose conduct

constitutes shoplifting could not be charged with burglary or a

theft crime for that same conduct instead of shoplifting, as

occurred in Gonzales. It does not follow that similar conduct,

including conduct that fulfills the elements of the misuse of

personal identifying information under section 530.5,

subdivision (a), must always be charged only as shoplifting, even

if no conviction for burglary or theft — the only crimes barred

under section 459.5, subdivision (b) — is at issue. In fact, no

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PEOPLE v. JIMENEZ

Opinion of the Court by Cuéllar, J.

conviction for personal identifying information misuse even

occurred in Gonzales.

The Attorney General also made another relevant

argument in Gonzales: that Gonzales’s burglary conviction was

ineligible for resentencing because of the possibility that

Gonzales might have entered with intent to violate section

530.5. In addressing this contention, we explained that a

burglary charge might be permitted for entry with intent to

commit acts other than theft of an amount equal to or less than

$950. But section 459.5, subdivision (b)’s bar against burglary

charges applied with full force to Gonzales because the only

proof was of entry with the intent to steal property in an amount

below the shoplifting threshold. (See Gonzales, supra, 2 Cal.5th

at pp. 876–877.) No similar bar applies here. Jimenez was

charged with a violation of section 530.5 –– neither a burglary

nor theft offense.

To therefore read the language of Gonzales as forcing the

prosecution to charge only misdemeanor shoplifting for any

misuse of personal identifying information involving $950 or

less would lead to odd results –– ones that make for an awkward

fit with the statutes at issue. Consider a person who enters a

commercial establishment during the day with the intent to

steal a particular video game from the shelf. If a child were

holding the video game and the person simply took the child

along with the game, the course of conduct would likely be

chargeable as kidnapping. (See § 207.) It defies logic to argue

that Proposition 47 mandates only a misdemeanor shoplifting

charge on those facts. We have no reason to believe Proposition

47 “extends to any course of conduct that happens to include”

entry into a commercial establishment with intent to commit

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Opinion of the Court by Cuéllar, J.

larceny. At oral argument, Jimenez attempted to address this

concern by contending that additional offenses could be charged

with shoplifting, but only if the other offenses involved force or

violence. To adopt such a test would be to write into the statute

a limitation which is simply not there. Voters made clear that

section 459.5’s prohibition extends only to “burglary or theft”

offenses. Because misuse of personal identifying information is

neither, this proscription simply does not apply.

True: People who violate section 530.5, subdivision (a) will

often use the information to commit some manner of theft,

making the theft an important element of that second crime.

This is what Gonzales was charged with doing when he stole his

grandmother’s checkbook and cashed two checks without her

consent (Gonzales, supra, 2 Cal.5th at p. 862), and it bears some

resemblance to the facts at issue here. No doubt it was this

realization that prompted the Court of Appeal to conclude:

“That Jimenez committed identity theft in the course of the

shoplifting does not alter the fact that he committed

shoplifting.” (Jimenez, supra, 22 Cal.App.5th at p. 1290.) What

would be more accurate, however, is to put it this way: That

Jimenez committed shoplifting in the course of identity theft

does not alter the fact that he committed identity theft.

C.

Jimenez also posits that his conviction can be reduced to

misdemeanor petty theft, the other new misdemeanor theft

offense created by Proposition 47. (See § 490.2, subd. (a).)

Section 490.2 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

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PEOPLE v. JIMENEZ

Opinion of the Court by Cuéllar, J.

dollars ($950) shall be considered petty theft and shall be

punished as a misdemeanor . . . .”

This argument fails, too. It falters for the same reason his

conviction cannot be reclassified as shoplifting: Misuse of

personal identifying information is not a theft offense. The

offense described by section 530.5 criminalizes the improper use,

not the illegal taking, of information. Like shoplifting, misuse

of personal identifying information shares no common elements

with petty theft. (Compare § 530.5, subd. (a) [“Every person who

willfully obtains personal identifying information . . . of another

person, and uses that information for any unlawful

purpose . . . is guilty of a public offense”] with § 490.2

[“[O]btaining 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”].)

Endeavoring to support his expansive interpretation of

section 490.2, Jimenez relies on two of our earlier cases,

Romanowski and Page. As we have already explained, however,

both of those cases involved crimes that could readily be

classified as theft offenses. In Romanowski we noted that

section 484, subdivision (a), theft of access card information, is

explicitly defined as grand theft (Romanowski, supra, 2 Cal.5th

at p. 908), clearly moving it into the scope of section 490.2 (see

§ 490.2, subd. (a) [“Notwithstanding Section 487 or any other

provision of law defining grand theft, obtaining any property by

theft where the value . . . does not exceed nine hundred fifty

dollars ($950) shall be considered petty theft”]). In Page we

relied on our previous identification of a “theft” and “nontheft”

way to commit the offense. (Page, supra, 3 Cal.5th at pp. 1182–

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PEOPLE v. JIMENEZ

Opinion of the Court by Cuéllar, J.

1183.) There is no similar reason to conclude that misuse of

personal identifying information is a theft offense.

III.

The prohibitions on shoplifting and misuse of personal

identifying information protect potential victims from different

harms. The shoplifting offense is like forgery and other

nonviolent theft crimes: It protects the entity with which the

shoplifter is (in a manner of speaking) engaging — here, Loans

Plus. Section 530.5, subdivision (a) is different. It protects

primarily the person or entity whose information was

unlawfully used without consent — here, OuterWall, who may

have suffered repercussions from the misuse of its financial

account information. (See Sanders, supra, 22 Cal.App.5th at p.

403 [noting the “basic problem is that appellant’s acts of stealing

from merchants do not amount to a theft from the cardholder”

because the “cardholder was harmed by the unlawful use of her

card and thefts from the merchants do not make the cardholder

a victim of those thefts”].)

Ultimately, use of the shorthand “identity theft” to

describe the offense in section 530.5 doesn’t somehow make the

misuse of personal identifying information swallow up elements

of the theft offense, nor does it otherwise “provide a reason to

read into the statute an additional element that cannot be found

by referring to the language of the statute.” (Barba, supra, 211

Cal.App.4th at p. 227.) Section 459.5 proscribes charging

“burglary or theft of the same property” for shoplifting conduct

(§ 459.5, subd. (b).) But misuse of personal identifying

information is not a “theft” offense, so it remains a perfectly

valid charge where a defendant engages in actions including

conduct overlapping with misdemeanor shoplifting but where

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PEOPLE v. JIMENEZ

Opinion of the Court by Cuéllar, J.

the course of conduct also fulfills elements — such as the misuse

of personal identifying information that is all too common in the

digital economy — wholly distinct from what a shoplifting

conviction would require.

The judgment of the Court of Appeal is reversed, and this

case is remanded to the Court of Appeal with instructions to

send the case back to the trial court for sentencing not

inconsistent with this opinion. To the extent it conflicts with

this holding, People v. Brayton (2018) 25 Cal.App.5th 734

(review granted Oct. 10, 2018, S251122) is disapproved.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

24

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jimenez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 22 Cal.App.5th 1282

Rehearing Granted

__________________________________________________________________________________

Opinion No. S249397

Date Filed: March 2, 2020

__________________________________________________________________________________

Court: Superior

County: Ventura

Judge: Manuel J. Covarrubias

__________________________________________________________________________________

Counsel:

Gregory D. Totten, District Attorney, Lisa O. Lyytikainen and Michelle J. Contois, Deputy District

Attorneys, for Plaintiff and Appellant.

Todd W. Howeth, Public Defender, and William M. Quest, Deputy Public Defender, for Defendant and

Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michelle J. Contois

Deputy District Attorney

800 South Victoria Avenue

Ventura, CA 93009

(805) 654-3078

William M. Quest

Senior Deputy Public Defender

800 South Victoria Avenue, HOJ-207

Ventura, CA 93009

(805) 654-3032