People v. Jimenez
9 Cal.5th 53
Cal.
2020
Check Treatment

THE PEOPLE, Plaintiff and Appellant, v. MIGUEL ANGEL JIMENEZ, Defendant and Respondent.

S249397

In the Supreme Court of California

March 2, 2020

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.

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 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 (Jimenez) relied on the similarity between defendant‘s conduct here — cashing a false check — and the conduct of the defendant in (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. (.) 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 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 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 , in which we 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 (Romanowski), its ” ‘hands ha[d] been somewhat tied.’ ” (.) 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 and Gonzales, the court said, mandated reduction of ” ‘conduct that has been described in Proposition 47 as a shoplifting type of offense.’ ” (.) ” ‘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.” (.) 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 (a)].’ ” (Ibid., quoting .) 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. (.) 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. (.) We look first to ” ‘the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context.’ ” (.) 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 [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.” (; [“[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. (.) 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) 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; (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.” (.) 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 , 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.

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.” (, quoting (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 .) It contains no requirement, “central to the crime of theft[,] that the information be stolen at all” ( (Truong)), or that the victim‘s information was taken with “the intent to permanently deprive the owner of its possession” ( (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.” ( (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 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, 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. ( (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. ; see [“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., ; ; .) The offenses are fundamentally different, and they reflect different legislative rationales. Consider shoplifting, whose rationale we recently discussed in . 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 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. (.) And on its face, it addresses harms reaching well beyond theft, implicating issues of privacy and control of personal data. (See [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 intent to commit theft by false pretenses — a course of conduct analogous to what we decided was enough to constitute shoplifting in Gonzales. (See [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.” (, 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 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.’ ” (, quoting § 1170.18, subd. (a).) Under , 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].” (.) 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. (

Notes

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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