The opinion
Filed 1/31/22; Opinion on transfer from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A151408
v.
SHAKELIA RENEE CHATMAN, (Contra Costa County
Super. Ct. Nos. 51618479, 51619709)
Defendant and Appellant.
Defendant Shakelia Renee Chatman appeals her 2017 convictions on
five counts of “identity theft” in violation of subdivisions (a) and (c) of Penal
Code 1 section 530.5; one count of mail theft in violation of subdivision (e) of
section 530.5; and one count of second degree commercial burglary in violation
of section 459. As originally briefed in 2018, the principal question presented
by this appeal was whether, under the provisions of Proposition 47, “identity
theft” crimes had to be treated as misdemeanors if the value of the personal
identifying information obtained and used (§ 530.5, subd. (a)) or possessed
(§ 530.5, subd. (c)) did not exceed $950. At the time, our Supreme Court had
before it conflicting opinions as to whether violations of section 530.5,
subdivision (a) could be reclassified under Proposition 47. (Compare, e.g.,
People v. Sanders (2018) 22 Cal.App.5th 397, review granted July 25, 2018,
review dismissed June 17, 2020, S248775, with People v. Jimenez (2018)
22 Cal.App.5th 1282, review granted July 25, 2018, S249397, reversed by
People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez).)
1 All statutory references are to the Penal Code unless otherwise noted.
1
In March 2019, while Jimenez was still pending, we issued an opinion
resolving defendant’s appeal by holding that, as the Attorney General had
acknowledged, her conviction for burglary had to be reduced to shoplifting
under new section 459.5, subdivision (a), and further holding that, as the
Attorney General had disputed, her five convictions for identity theft and
mail theft in violation of section 530.5, subdivisions (a), (c), and (e) also had to
be reduced to misdemeanors in violation of section 459.5, subdivision (a), or of
section 490.2.
The California Supreme Court granted review of this case and deferred
briefing pending its decision in Jimenez. In March 2020, the court decided
Jimenez, holding that Proposition 47 does not apply to convictions for
unlawfully obtaining and using personal identifying information in violation
of section 530.5, subdivision (a), and that such convictions may not be
reduced to misdemeanor shoplifting (§ 459.5). (Jimenez, supra, 9 Cal.5th at
pp. 58–59.) 2 Jimenez did not address mail theft in violation of section 530.5,
subdivision (e) (hereafter, section 530.5(e)). After deciding Jimenez, the court
transferred this case back to us with directions to vacate our decision and
reconsider the case in light of that decision.
Defendant and the Attorney General have each filed supplemental briefs
in which they do not dispute the proper disposition of this appeal as to six of
the seven convictions at issue. The parties agree that nothing in Jimenez
undermines our original holding that defendant’s burglary conviction must be
2
While Jimenez did not expressly address subdivision (c) of section
530.5 (which bars acquiring or retaining possession of another’s personal
identifying information with an intent to defraud), this court has since held
that the rule announced in Jimenez with regard to subdivision (a) of section
530.5 (which bars willfully obtaining and using such information for an
unlawful purpose) applies to subdivision (c) as well. (People v. Harrell (2020)
53 Cal.App.5th 256, 263.)
2
reduced to misdemeanor shoplifting (§ 459.5), and they agree that Jimenez
compels us to reach the opposite conclusion as to defendant’s five convictions
of violating section 530.5, subdivisions (a) and (c), which cannot be reduced to
shoplifting or petty theft pursuant to Proposition 47. (Jimenez, supra,
9 Cal.5th at pp. 58–59.) 3 The parties dispute only whether Jimenez precludes
the application of Proposition 47 to redesignate defendant’s misdemeanor
mail theft conviction under section 530.5(e) as a misdemeanor petty theft
conviction (§ 490.2). We conclude that Proposition 47 does apply to mail-theft
convictions in circumstances such as those involved in this case, and that
defendant’s mail theft conviction must be redesignated a petty theft
conviction (§ 490.2).
Background
In an amended felony information, defendant was charged with, and
subsequently convicted by a jury of, one count of violating section 530.5,
subdivision (a) (unauthorized use of personal identifying information), four
counts of violating section 530.5, subdivision (c)(2) (fraudulent possession of
personal identifying information with a prior conviction), one count of
violating section 530.5(e) (mail theft), and one count of violating section 459
(second degree commercial burglary). Defendant does not contest the
sufficiency of the evidence to establish these offenses. She now disputes only
the proper designation of one of the offenses in light of the statutory
amendments made by Proposition 47. No evidence was introduced indicating
3 The Attorney General’s supplemental brief contends that Jimenez
dictates affirmance of the convictions pursuant to subdivisions (a) and (c) of
section 530.5 and asserts that defendant’s supplemental brief “acknowledges”
that those convictions cannot be reduced, given the holding in Jimenez. While
defendant’s supplemental brief is in fact silent about the convictions under
section 530.5, subdivisions (a) and (c), she has not disputed the Attorney
General’s assertion.
3
that the value of any of the personal information or property in question
exceeded $950 and, in most instances, the evidence clearly showed the value
to be considerably less than that amount.
The victim of three of the counts was one Nathaniel Bates. The
evidence established that on November 30, 2015, defendant without
permission took mail from Bates’s home mail box (a violation of section
530.5(e) (count 5)) and that, in separate searches on December 10 and
December 16, 2015, defendant was found in possession of, among other
things, a checkbook for a Wells Fargo account of Bates and his son, and
pieces of checks written to, or by, Bates, as well as personal identifying
information, checks, and credit cards belonging to numerous other people
(two violations of section 530.5, subdivision (c)(2) (counts 1, 2)).
One count related to Kevin Almestad, whose credit card was used by
another without his permission on March 11, 2016, for a purchase at a Target
store. In a March 17 search, defendant was found in possession of Almestad’s
credit card (a violation of section 530.5, subdivision (c)(2) (count 3)). 4
Three counts related to Cynthia Bailey, who received a $300 charge
from Target that she had not incurred, and whose forged check defendant
cashed at a check cashing store (violations of section 530.5, subdivision (a)
(count 6), section 530.5, subdivision (c)(2) (count 7) and section 459 (count 8)).
Upon defendant’s conviction for these offenses, the court imposed a
split sentence pursuant to section 1170, subdivision (h), consisting of two
years in custody and three years of mandatory supervision. 5
4Defendant was also charged with another offense relating to
Almestad’s personal identifying information, but the jury was unable to agree
on that count, which was ultimately dismissed.
5 The court calculated the sentence as follows: upper term of three
years on count 6 (§ 530.5, subd. (a)), consecutive terms of eight months (one-
third the midterm) on counts 1, 2 and 3 (§ 530.5, subd. (c)(2)), one year
4
Discussion
In 2014, California voters enacted Proposition 47, “The Safe
Neighborhoods and Schools Act,” which reduced certain theft-related offenses
from felonies or wobblers to misdemeanors, unless the offenses were
committed by certain ineligible offenders. (People v. Rivera (2015)
233 Cal.App.4th 1085, 1091.) Proposition 47 is to be “broadly construed to
accomplish its purposes.” 6 One such purpose was “ ‘to reduce the number of
nonviolent offenders in state prisons, thereby saving money and focusing
prison on offenders considered more serious under the terms of the initiative’ ”
(People v. Gonzales (2017) 2 Cal.5th 858, 870, while another was to “ ‘[r]equire
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty
theft . . . , unless the defendant has prior convictions for specified violent or
serious crimes.’ ” (Ibid.)
As summarized above, the only conviction in this case to which the
applicability of Proposition 47 remains in dispute is that for mail theft
pursuant to section 530.5(e). That provision states that “Every person who
commits mail theft, as defined in [the federal mail-theft statute, 18 United
States Code section 1708] . . . , 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].” (§ 530.5(e).) The federal mail-theft
statute, in turn, applies to anyone who performs any of a wide variety of
wrongful acts regarding the mail, including one who “steals, takes, or
concurrent with count 6 on count 5 (mail theft pursuant to § 530.5(e)), and
midterms of two years each on count 7 (§ 530.5, subd. (c)(2)) and count 8
(§ 459), both stayed pursuant to section 654.
6 Voter Information Guide, General Election (Nov. 4, 2014) text of
Proposition 47, § 15, p. 74 <http://vig.cdn.sos.ca.gov/2014/general/-
en/pdf/complete-vigr1.pdf> (as of Jan. 31, 2022).
5
abstracts, or by fraud or deception obtains, or attempts so to obtain” an item
of mail from various locations or from employees of the postal system
(18 U.S.C. § 1708); “abstracts or removes from” an item of mail anything
contained therein (ibid.); “secretes, embezzles, or destroys” an item of mail
(ibid.); “steals, takes, or abstracts, or by fraud or deception obtains” an item
of mail or contents thereof that has been left for collection (ibid.); or
knowingly “buys, receives, or conceals, or unlawfully has in his possession” a
stolen item of mail or contents thereof. (Ibid.) 7 Section 530.5(e) incorporates
by reference the entirety of the federal mail-theft statute (18 U.S.C. § 1708).
Defendant contends that, because section 530.5(e) encompasses some
acts that constitute theft and others that do not, People v. Page (2017)
3 Cal.5th 1175 (Page) dictates that Proposition 47 requires resentencing
under section 490.2 of a defendant convicted pursuant to section 530.5(e) if
the conviction was for a theft of mail and if the value of that mail was $950 or
less. We agree.
7 The statute provides in full: “Whoever steals, takes, or abstracts, or by
fraud or deception obtains, or attempts so to obtain, from or out of any mail,
post office, or station thereof, letter box, mail receptacle, or any mail route or
other authorized depository for mail matter, or from a letter or mail carrier,
any letter, postal card, package, bag, or mail, or abstracts or removes from
any such letter, package, bag, or mail, any article or thing contained therein,
or secretes, embezzles, or destroys any such letter, postal card, package, bag,
or mail, or any article or thing contained therein; or [¶] Whoever steals,
takes, or abstracts, or by fraud or deception obtains any letter, postal card,
package, bag, or mail, or any article or thing contained therein which has
been left for collection upon or adjacent to a collection box or other authorized
depository of mail matter; or [¶] Whoever buys, receives, or conceals, or
unlawfully has in his possession, any letter, postal card, package, bag, or
mail, or any article or thing contained therein, which has been so stolen,
taken, embezzled, or abstracted, as herein described, knowing the same to
have been stolen, taken, embezzled, or abstracted— [¶] Shall be fined under
this title or imprisoned not more than five years, or both.” (18 U.S.C. § 1708.)
6
Page addressed Vehicle Code section 10851, which states that “[a]ny
person who drives or takes a vehicle not his or her own, without the consent
of the owner thereof, and with intent either to permanently or temporarily
deprive the owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle . . . is guilty of a public
offense . . . .” (See Page, supra, 3 Cal.5th at pp. 1179–1180.) The Page court
noted “the distinction between the theft and nontheft forms of the Vehicle
Code section 10851 offense” (id. at p. 1183), explaining that the statute
“punishes not only taking a vehicle, but also driving it without the owner’s
consent, and ‘with intent either to permanently or temporarily deprive the
owner thereof of his or her title to or possession of the vehicle, whether with
or without intent to steal the vehicle’ ” (ibid., quoting Veh. Code, § 10851,
subd. (a)), and that theft “requires a taking with . . . intent to permanently
deprive the owner of its possession.” (Ibid.) The court reasoned that
“Proposition 47’s new petty theft provision, section 490.2, covers the theft
form of the Vehicle Code section 10851 offense” because section 490.2
“mandates misdemeanor punishment for a defendant who ‘obtain[ed] any
property by theft’ where the property is worth no more than $950”; an
automobile is property; and so, “ ‘after the passage of Proposition 47, an
offender who obtains a car valued at less than $950 by theft must be charged
with petty theft and may not be charged as a felon under any other criminal
provision.’ ” (Id. at p. 1183.) Proposition 47 thus made “some, though not all,
section 10851 defendants eligible for resentencing,” namely, those serving a
felony sentence under section 10851 “for vehicle theft—taking a vehicle with
the intent to permanently deprive the owner of possession,” if the vehicle was
worth $950 or less. (Id. at p. 1184; see also People v. Bullard (2020) 9 Cal.5th
94, 109–110 [modifying rule of Page in other respect].)
7
A parallel analysis applies to section 530.5(e). The statute criminalizes
some conduct that plainly constitutes theft, such as “steal[ing], tak[ing], or
abstract[ing] . . . any letter, postal card, package, bag, or mail” from various
locations or persons (18 U.S.C. § 1708, incorporated by reference by
§ 530.5(e)), and some conduct that does not constitute theft, such as
“buy[ing], receiv[ing], or conceal[ing], or unlawfully ha[ving] in [one’s]
possession any letter, [etc.], which has been so stolen, taken, embezzled, or
abstracted, . . . knowing the same to have been stolen, [etc.]” (ibid.). Under
the reasoning of Page, supra, 3 Cal.5th at pages 1183–1184, section 490.2
requires that conduct constituting a theft version of the section 530.5(e)
offense “shall be considered petty theft and shall be punished as a
misdemeanor” if the value of the property at issue is $950 or less (§ 490.2,
subd. (a)). Defendant’s supplemental brief demonstrates that the record
shows that she was convicted solely of a theft version of the section 530.5(e)
offense, 8 and the Attorney General does not dispute the point.
The Attorney General contends that Proposition 47 can never apply to
the crime of mail theft under section 530.5(e), under the reasoning of
Jimenez, because of similarities between the section 530.5(e) offense and the
crime of misuse of personal identifying information (§ 530.5, subd. (a)) that
Jimenez held to be outside the scope of Proposition 47. The Attorney General
notes that section 530.5(e) “is included with the offenses of fraudulent
possession and unauthorized use of personal identifying information
8 The prosecutor elected not to have the jury instructed on a buying or
receiving theory of the section 530.5(e) offense and instead to proceed solely
upon a theft theory. The court’s instruction informed the jury of only one
factual basis on which it could find defendant guilty of mail theft, namely,
that she “ ‘stole or took from any mail, letter box, mail receptacle, or other
authorized depository for mail matter, any letter, postal card, package, bag or
mail.’ ”
8
[section 530.5, subdivisions (a) and (c)] in a section of the Penal Code chapter
proscribing ‘false personation and cheats,’ not the section proscribing
‘larceny’ ”; that section 530.5(e) does not use the term “grand theft” to define
the crime it creates; and that section 530.5(e) does not set differing
punishments for the crime of mail theft based on the value of the mail stolen.
While those similarities do exist, the offense in Page was created by a statute
that was outside the larceny chapter and the Penal Code altogether, did not
use the term “grand theft,” and did not base punishment on the value of the
car at issue. (See Veh. Code, § 10851.) The reasoning by which the court in
Jimenez held that Page did not apply to identity theft confirms that Page
does govern the crime of mail theft under section 530.5(e). “What we decided
[in Page] 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 . . . section 490.2 . . . [which] mandates
misdemeanor punishment for a defendant who ‘obtain[ed] any property by
theft’ [worth] . . . $950 or less. [Citation.] 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 nontheft way to commit the offense. [Citation.] The theft version of
the vehicular offense fully mapped on to the new petty theft statute, and we
thus concluded that [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.’ [Citation.] [¶] The same doesn’t hold for
Jimenez’s offense. Where Vehicle Code section 10851 contemplates two
permutations—one fully satisfying the elements of petty theft after
Proposition 47—. . . section 530.5, subdivision (a) contains no separate
provision that, when violated, exclusively constitutes shoplifting or even
9
theft. Instead the offense defined in section 530.5, subdivision (a) always
requires more than [the elements of shoplifting].” (Jimenez, supra, 9 Cal.5th
at pp. 67–68.)
Section 530.5(e), defining mail theft, does not differ from Vehicle Code
section 10851 in those respects. Section 530.5(e) establishes both an offense
that qualifies as petty theft under section 490.2 and offenses that do not.
While the California Supreme Court has not “previously identified a theft
and nontheft way to commit the offense” (Jimenez, supra, 9 Cal.5th at p. 68),
the language of 18 United States Code section 1708, the federal mail-theft
statute incorporated by reference in section 530.5(e), clearly encompasses
both. And at least one federal court has distinguished a theft and a nontheft
way to violate that statute. 9
Moreover, unlike the “identify theft” offense at issue in Jimenez, which
“always requires more” than the elements of the new shoplifting offense
created by Proposition 47 (Jimenez, supra, 9 Cal.5th at p. 68), the theft
9 In United States v. Lindsay (11th Cir. 1977) 552 F.2d 263, the
Eleventh Circuit Court of Appeals held that it was error to convict a
defendant under the federal mail-theft statute both of stealing and of
possessing the same items of stolen mail, relying on a line of cases that “have
dealt with the question of whether a defendant can be convicted and
sentenced for stealing and also for receiving or possessing the same goods.”
(Id. at p. 265.) Similarly, in Page our Supreme Court explained that the prior
case in which it had identified a theft and nontheft way to commit the Vehicle
Code section 10851 offense, People v. Garza (2005) 35 Cal.4th 866, involved a
dual-conviction issue, namely, “whether dual convictions under Vehicle Code
section 10851 and Penal Code section 496, subdivision (a) (receiving stolen
property) violated the statutory rule against convicting a person for both
stealing and receiving the same property.” (Page, supra, 3 Cal.5th at p. 1183.)
As explained in Page, the answer to the dual-conviction question depends on
whether the person had been convicted of the theft or the nontheft version of
the Vehicle Code section 10851 offense. (Page, supra, at p. 1183, citing People
v. Garza, supra, at p. 871.)
10
version of the offense of mail theft (§ 530.5(e)) does not always require more
than the elements of the new petty theft offense created by Proposition 47
(§ 490.2). With regard to identity theft, the Supreme Court noted that
unlawfully using personal identifying information (§ 530.5, subd. (a)) “is not a
theft offense because criminal liability pivots on how the information was
used rather than how it was acquired.” (Jimenez, supra, 9 Cal.5th at p. 59.)
The theft version of the section 530.5(e) offense, by contrast, turns precisely
on how the item of mail is acquired—that is, whether the defendant “steals,
takes, or abstracts” it—and not on the use he or she makes of it.
The Attorney General also argues that “[t]he theft of mail, like the
fraudulent possession and unauthorized use of personal identifying
information, has serious implications wholly apart from the monetary value
of the [misappropriated] mail,” as mail theft can “give a defendant
unauthorized access to personal and confidential medical records or personal
information that could be used to ruin someone’s credit score [by way of]
crimes that can have long-lasting or even irreparable effects.” While we do
not question such concerns, in People v. Romanowski (2017) 2 Cal.5th 903,
the Supreme Court held that section 490.2 reduces to a misdemeanor the
acquisition or possession of another’s access card account information, despite
“the broad consumer protection” objective underlying the greater offense of
section 484e; that objective was no reason to disregard the limitation imposed
by Proposition 47. (Id. at pp. 913–914.) The same analysis applies here.
We thus reject the Attorney General’s argument that, under the
reasoning of Jimenez, supra, 9 Cal.5th 53, Proposition 47 can never apply to a
conviction under section 530.5(e). Because the Attorney General has not
contested defendant’s showing that her conviction under section 530.5(e) was
for the theft version of that offense, that conviction must be redesignated a
misdemeanor petty theft conviction under section 490.2.
11
Disposition
Defendant’s conviction under count 8 is reduced to a misdemeanor for
the violation of section 459.5. Defendant’s conviction under count 5 is
redesignated a misdemeanor for the violation of section 490.2, subdivision (a).
Defendant’s convictions under counts 1, 2, 3, 6, and 7 are affirmed. The
matter is remanded to the trial court for resentencing.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
12
Trial court: Contra Costa County Superior Court
Trial judge: Honorable Barry Baskin
Counsel for defendant and appellant: James S. Donnelly-Saalfield, under appointment by the
Court of Appeal
Counsel for plaintiff and respondent: Xavier Becerra, Attorney General
Lance E. Winters, Chief Assistance Attorney General
Jeffrey M. Laurence, Senior Assistant Attorney General
Seth K. Schalit, Deputy Attorney General
Lisa Ashley Ott, Deputy Attorney General
13