P. v. Chi

Filed 5/29/18 P. v. Chi CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Appellant,
v.
MIGUEL ANGEL CHI,
Defendant and Respondent.
2d Crim. No. B283968
(Super. Ct. No. 2017008363)
(Ventura County)
The People appeal the trial court’s order dismissing
the charges against Miguel Angel Chi for felony identity theft
under Penal Code section 530.5, subdivision (a).1 The court
determined that Chi’s use of stolen credit cards to purchase store
merchandise worth less than $950 could be charged only as
misdemeanor shoplifting under section 459.5, subdivision (a).
The People argue that section 459.5, which was enacted as part of
Proposition 47 (§ 1170.18), does not apply to section 530.5
1 All statutory references are to the Penal Code.

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identity theft offenses, and that the cases relied upon by the trial
court do not permit dismissal of a charged violation of section
530.5, subdivision (a). We recently rejected this argument in
People v. Jimenez (May 8, 2018, B283858) _ Cal.App.5th _ [2018
Cal.App. LEXIS 410] (Jimenez). For the reasons set forth in that
opinion, we conclude the court correctly dismissed the identity
theft charges (counts 1-3) pursuant to Proposition 47.
Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
On three occasions, Chi went into a commercial
establishment during normal business hours and fraudulently
used another person’s credit cards to make purchases valued at
$950 or less. Specifically, Chi used the cards to purchase $251.55
worth of merchandise from Kohl’s, $578 worth of merchandise
from Home Depot, and some beverages from Stagecoach Liquor
Store. The People charged Chi with three felony violations of
section 530.5, subdivision (a) -- the unauthorized use of the
personal identifying information of another -- and one
misdemeanor count of receiving stolen property (§ 496, subd. (a)).
At the preliminary hearing, the magistrate declined
to hold Chi to answer for the three identity theft counts. Relying
upon People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) and
People v. Garrett (2016) 248 Cal.App.4th 82 (Garrett), the
magistrate concluded that Chi’s use of the credit cards was
analogous to the fraudulent use of a check, and that the identity
theft violations “under the case law as it stands . . . are not
eligible to be charged as [section] 530.5 felonies.” The magistrate
reasoned: “A check is personal information of a person. It’s being
used. You have an amount. And it seems to me [from] reading

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these cases that the amount involved is probably more the crux of
their concerns as to why this law is what it is.”
The People rejected the magistrate’s invitation to
reduce the charges to misdemeanor shoplifting under section
459.5. Instead, they filed an information which included the
three felony identity theft counts. Chi moved to set aside the
information pursuant to section 995. He contended that Gonzales
and Garrett stand for the proposition that when a person commits
shoplifting under section 459.5, as interpreted by our Supreme
Court, the People cannot use the identity theft statute to
circumvent the statute’s plain language.
The trial court granted Chi’s motion over the People’s
objection. It agreed with the magistrate that Gonzales applies.
The court explained that “[t]he reason [Gonzales] applies, the
amount is less than $950 and [the] facts [are] similar to Garrett.”
The People filed a petition for writ of mandate and
requested a stay. We summarily denied the petition.
Chi subsequently pled guilty to the charge of
receiving stolen property, and was placed on conditional
revocable release with 180 days in jail.2 The People appeal the
order dismissing counts 1 through 3.
DISCUSSION
Proposition 47
California voters enacted Proposition 47 in 2014.
(Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App. LEXIS 410
at p. *4].) It “reduced certain theft-related offenses from felonies
or wobblers to misdemeanors, unless the offenses were committed
by certain ineligible offenders.” (Ibid.)
2 The jail sentence was deemed served.

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“Proposition 47 added several new provisions,
including section 459.5, which created the crime of shoplifting.”
(Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App. LEXIS 410
at p. *5].) Section 459.5, subdivision (a) provides:
“Notwithstanding [s]ection 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). Any other
entry into a commercial establishment with intent to commit
larceny is burglary.” “Section 459.5, subdivision (b) expressly
limits charging [on] shoplifting: ‘“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.”’” (Jimenez, at p. _ [2018
Cal.App. LEXIS 410 at pp. *5-6]; see Gonzales, supra, 2 Cal.5th
at p. 863.)
No Error in Dismissing the Identity Theft Counts
The People contend Chi is not eligible to have counts
1 through 3 dismissed because his offenses constitute identity
theft (§ 530.5, subd. (a)), which remains a felony under
Proposition 47. We disagree.
In Jimenez, the defendant entered a commercial
check-cashing business and cashed two stolen checks valued at
less than $950 each. (Jimenez, supra, _ Cal.App.5th at p. _ [2018
Cal.App. LEXIS 410 at p. *2].) The People charged Jimenez with
two counts of felony identity theft. (§ 530.5, subd. (a).) After a
jury convicted Jimenez of both charges, he moved to reduce the
convictions to misdemeanors. (Jimenez, at p. _ [pp. *2-3].) The

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trial court granted the motion, and the People appealed. (Id. at
p. _ [pp. *3-4].)
We affirmed the trial court’s order. Relying upon
Gonzales, Garrett and People v. Romanowski (2017) 2 Cal.5th 903
(Romanowski), we concluded that “Jimenez met his burden of
establishing that his convictions qualified under Proposition 47
as misdemeanor shoplifting offenses.” (Jimenez, supra, _
Cal.App.5th at p. _ [2018 Cal.App. LEXIS 410 at p. *15].)
First, we analyzed Garrett, which addressed the
interplay between felony identity theft (§ 530.5) and section
459.5. (Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App.
LEXIS 410 at pp. *6-7].) The defendant in Garrett entered a
store and attempted to purchase gift cards with a stolen credit
card. (Garrett, supra, 248 Cal.App.4th at p. 84.) After Garrett
pled no contest to commercial burglary, he petitioned for
resentencing under Proposition 47. (Garrett, at p. 86.) The trial
court denied the petition, but the Court of Appeal reversed,
rejecting the Attorney General’s argument that because Garrett
intended to commit felony identity theft, the shoplifting statute
did not apply. (Id. at pp. 86-90.) The court explained: “[E]ven
assuming [Garrett] intended to commit felony identity theft, he
could not have been charged with burglary under . . . section 459
if the same act -- entering a store with the intent to purchase
merchandise with a stolen credit card -- also constituted
shoplifting under [s]ection 459.5.” (Id. at p. 88.) Based on this
reasoning, Garrett concluded that the use of a stolen credit card
to purchase merchandise valued at $950 or less constitutes
shoplifting under section 459.5. (Id. at p. 90; see Jimenez, at p. _
[p. *7].)

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Next, we discussed the Supreme Court’s decision in
Gonzales. (Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App.
LEXIS 410 at pp. **7-9].) The defendant in Gonzales had entered
a bank and cashed two checks valued at less than $950 each.
(Gonzales, supra, 2 Cal.5th at p. 862.) After pleading guilty to
second degree burglary, Gonzales petitioned for misdemeanor
resentencing under Proposition 47. (Gonzales, at p. 862.) The
trial court denied his petition, the Court of Appeal affirmed, but
the Supreme Court reversed. (Ibid.) The court concluded that
the electorate “intended that the shoplifting statute apply to an
entry to commit a nonlarcenous theft. Thus, [Gonzales’s] act of
entering a bank to cash a stolen check for less than $950,
traditionally regarded as a theft by false pretenses rather than
larceny, now constitutes shoplifting under the statute. [Gonzales]
may properly petition for misdemeanor resentencing under . . .
section 1170.18.’” (Ibid., italics added; see Jimenez, at p. _
[p. *7].)
The Supreme Court rejected the Attorney General’s
argument that even if Gonzales did engage in shoplifting, he was
ineligible for resentencing because he also entered the bank
intending to commit felony identity theft under section 530.5,
subdivision (a). (Gonzales, supra, 2 Cal.5th at p. 876.) The
Attorney General claimed that Gonzales’s felony burglary
conviction could have been based on his separate intent to
commit felony identity theft. (Ibid.) Relying on Garrett,
Gonzales responded that section 459.5 precluded such alternate
charging. (Gonzales, at p. 876.) Agreeing that Gonzales “has the
better view,” the Supreme Court determined that “[s]ection 459.5,
subdivision (b) requires that any act of shoplifting ‘shall be
charged as shoplifting’ and no one charged with shoplifting ‘may

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also be charged with burglary or theft of the same property.’
(Italics added.) A defendant must be charged only with
shoplifting when the statute applies. It expressly prohibits
alternate charging and ensures only misdemeanor treatment for
the underlying described conduct.” (Ibid.)
Finally, we noted the Supreme Court’s view that
obtaining a person’s identifying information in the course of a
theft is not excluded from Proposition 47 relief. (Romanowski,
supra, 2 Cal.5th at pp. 913-914; see Jimenez, supra, _
Cal.App.5th at p. _ [pp. *10-11].) Specifically, the court rejected
the Attorney General’s theory that the offense of theft of an
access card (§ 484e) was enacted to protect consumers and thus
should be exempt from the petty theft statute (§ 490.2) in
Proposition 47. (Romanowski, at pp. 913-914.)
Just as Romanowski declined to exempt theft of an
access card from the ambit of section 490.2, we rejected the
People’s request to exempt identity theft under section 530.5,
subdivision (a) from the purview of shoplifting under section
459.5. (Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App.
LEXIS 410 at p. *11].) Noting that Jimenez’s conduct was
identical to Gonzales’s conduct, we concluded they both
committed “‘theft by false pretenses,’” which qualifies as
shoplifting under section 459.5, subdivision (a). (Jimenez, at p. _
[p. *9].) As Gonzales clarified, “[a] defendant must be charged
only with shoplifting when [section 459.5] applies.” (Gonzales,
supra, 2 Cal.5th at p. 876.)
The same rationale applies here. Chi’s conduct is
similar to Gonzales’s conduct and nearly identical to Garrett’s
conduct. Chi entered three commercial establishments during
business hours for the purpose of using a stolen credit card to

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purchase merchandise valued at $950 or less. (See Garrett,
supra, 248 Cal.App.4th at p. 84.) In so doing, he committed “theft
by false pretenses,” which “now constitutes shoplifting under
[section 459.5, subdivision (a).]” (Gonzales, supra, 2 Cal.5th at
pp. 862, 868-869 [shoplifting as defined in section 459.5,
subdivision (a) encompasses all thefts, including theft by false
pretenses]; Garrett, at p. 89 [“By using a stolen credit card, a
thief must falsely represent that he or she is the proper owner of
the credit card or has the consent of the owner to use it. Such
conduct constitutes ‘theft by false pretenses’”].) Section 459.5,
subdivision (b) makes it clear that “‘[a]ny act of shoplifting as
defined in subdivision (a) 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.’” (Gonzales,
at p. 863, italics added.) The trial court properly concluded,
therefore, that Chi’s acts of shoplifting could not be charged as
felony identity theft under section 530.5, subdivision (a).
(Gonzales, at p. 862; Garrett, at pp. 89-90.) Under section 495,
subdivision (b), they could be charged only as misdemeanor
shoplifting. (Gonzales, at pp. 862, 876-877; see 2 Couzens,
Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group
2017) § 25:4, p. 25-29 [“If section 459.5 applies, the defendant
may not be alternatively charged with burglar[y] or identity
theft”].)
In sum, we conclude the trial court properly granted
Chi’s motion to dismiss the three felony identity theft counts.
Chi met his burden of establishing that the charges qualified
under Proposition 47 as misdemeanor shoplifting offenses.3
3 Because we agree with Chi that the trial court correctly
granted his motion for the reasons stated in its ruling, we need

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DISPOSITION
The order granting Chi’s motion to dismiss the three
felony identity theft charges (counts 1-3) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
not reach Chi’s alternative argument that each identity theft
charge constituted petty theft under section 490.2.

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Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
Gregory D. Totten, District Attorney, Michelle J.
Contois, Deputy District Attorney, for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, William M. Quest,
Senior Deputy Public Defender, for Defendant and Respondent.

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