P. v. Rousseaux

Filed 7/13/18 P. v. Rousseaux CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
PATRICK ROUSSEAUX,
Defendant and Appellant.
B285098
(Los Angeles County
Super. Ct. No. GA097891)
APPEAL from an order of the Superior Court of Los
Angeles County, Jared D. Moses, Judge. Affirmed.
John L. Staley, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION
Defendant Patrick Rousseaux pled no contest to two counts
of felony identity theft. (Pen. Code,1 § 530.5, subd. (a).) The trial
court imposed an agreed-upon sentence of two years in state
prison. Seven months later, defendant filed a petition for
resentencing under section 1170.18, which was added by
Proposition 47. Proposition 47 reduced certain felony drug- and
theft-related offenses to misdemeanors. Section 1170.18,
subdivisions (a) and (f) allows offenders whose crimes have been
reclassified to petition for resentencing. The trial court held a
brief hearing on defendant’s petition at which a deputy district
attorney was present. Defendant was not present; nor was he
represented by counsel. The trial court denied the petition. The
court held, “[t]he felony conviction is for an offense that does not
qualify under Penal Code [section] 1170.18[, subdivision] (a) or
(f).” This appeal followed. We affirm the order.
II. FACTUAL BACKGROUND
Because defendant entered a plea and there was no
evidentiary hearing, we take the facts from the probation officer’s
pre-conviction report. Defendant cashed two checks at a Money
Mart on separate occasions: October 12, 2015 ($240) and
October 16, 2015 ($225). Both checks were issued from
Cassandra Kwoh. A fraud investigator later told the manager
1 Further statutory references are to the Penal Code except
where otherwise noted.

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who cashed defendant’s checks that the checks were fraudulent.
The manager told sheriff’s deputies defendant had cashed a check
from Kwoh in the past. The manager thought defendant might
have made copies of the original check. Kwoh told sheriff’s
deputies she issued one check to defendant in May 2015 for $500.
Kwoh subsequently discovered defendant had “writte[n]
numerous checks in [her] name.” At sentencing, the trial court
ordered defendant to pay $1,800 in restitution to Kwoh.
III. DISCUSSION
A. Probable Cause Certificate
Preliminarily, we address an argument the Attorney
General briefly raises in a footnote: “Because [defendant]
pleaded no contest to the charges well after Proposition 47 was
enacted, his claims constitute an attack on the validity of the plea
itself, requiring a certificate of probable cause. (People v.
Panizzon (1996) 13 Cal.4th 68, 75.) Without a certificate of
probable cause, the appeal should be dismissed. (People v.
Johnson (2009) 47 Cal.4th 668, 678.)” We disagree.
Pursuant to section 1237.5, a defendant must obtain a
certificate of probable cause in order to appeal “from a judgment
of conviction upon a plea of guilty or nolo contendere.” The
statute’s purpose is “to weed out frivolous and vexatious appeals
from pleas of guilty or no contest, before clerical and judicial
resources are wasted.” (People v. Buttram (2003) 30 Cal.4th 773,
790.) A certificate is not required, however, if the appeal is based
on “[g]rounds that arose after entry of the plea and do not affect
the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B);

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People v. Cuevas (2008) 44 Cal.4th 374, 379; People v. French
(2008) 43 Cal.4th 36, 43.) The crucial issue is whether in
substance the defendant is challenging the validity of his or her
plea. (People v. Cuevas, supra, 44 Cal.4th at p. 381; People v.
French, supra, 43 Cal.4th at p. 44.)
Defendant does not appeal from a judgment of conviction;
he neither seeks to withdraw his plea nor otherwise attack its
validity. Rather, he appeals from the trial court’s denial of his
post-judgment section 1170.18 motion. Under these
circumstances, he was not required to obtain a probable cause
certificate. (See People v. Cuevas, supra, 44 Cal.4th at pp. 379,
381; People v. French, supra, 43 Cal.4th at pp. 43-44.)
B. Defendant’s Section 1170.18 Petition
In the trial court, defendant filed a form
“Application/Petition for Resentencing” stating, “[d]efendant
requests that the felony sentence be recalled and that he/she be
resentenced to a misdemeanor pursuant to Penal Code [section]
1170.18[, subdivisions](a)-(e).” He also checked the box stating,
“[t]he amount in question is not more than $950.” Defendant did
not specify under which of the code sections enumerated in
subdivision (a) of section 1170.18 he sought resentencing.
On appeal, defendant argues: the trial court erred when it
denied his section 1170.18 motion because identity theft is a form
of theft; the amounts of the two fraudulent checks totaled less
than $951; and his theft of property valued at less than $951 was
eligible for resentencing under Proposition 47. We review de
novo the trial court’s legal conclusion that identity theft is not a
reducible theft offense. (People v. Bunyard (2017) 9 Cal.App.5th

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1237, 1242; People v. Dunn (2016) 248 Cal.App.4th 518, 525.) We
see no error.
Defendant was convicted under subdivision (a) of section
530.5. That subdivision states: “Every person who willfully
obtains personal identifying information, as defined in
subdivision (b) of [s]ection 530.5, 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, and upon conviction therefor, shall be
punished by a fine, by imprisonment in a county jail not to exceed
one year, or by both a fine and imprisonment, or by imprisonment
pursuant to subdivision (h) of [s]ection 1170.”2 Section 530.55,
subdivision (b) defines “‘personal identifying information”’ as
including name, address, telephone number, driver’s license
number, social security number, place of employment, mother’s
maiden name, bank account number and similar information.
Identity theft is not an offense enumerated in section
1170.18 as eligible for reclassification under Proposition 47. We
recognize that this fact, standing alone, is not fatal to defendant’s
petition. (People v. Martinez (2018) 4 Cal.5th 647, 652.) The
Supreme Court has applied Proposition 47 to offenses not
2 The elements of the crime are as follows: “(1) that the
person willfully obtain personal identifying information
belonging to someone else; (2) that the person use that
information for an unlawful purpose; and (3) that the person who
uses the personal identifying information does so without the
consent of the person whose personal identifying information is
being used. [Citation.]” (People v. Sanders (2018) 22 Cal.App.5th
397, 405; accord, CALCRIM No. 2040.)

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specified in section 1170.18. (People v. Page (2017) 3 Cal.5th
1175 [Veh. Code, § 10851]; People v. Romanowski (2017) 2
Cal.5th 903 [§ 484e].) “[E]ligibility for resentencing turns on
whether [the defendant] is a person serving ‘a sentence for a
conviction . . . of a felony . . . who would have been guilty of a
misdemeanor under [Proposition 47] had [Proposition 47] been in
effect at the time of the offense . . . .’ (. . . § 1170.18[, subd.] (a).)”
(People v. Martinez, supra, 4 Cal.5th at p. 652.)
1. Petty Theft: Section 490.2
In his briefs on appeal, defendant repeatedly argues his
offense was a form of theft. Defendant cites section 490.2, an
enumerated statute added by Proposition 47. Section 490.2
redefines grand and petty theft offenses and provides,
“[n]otwithstanding [s]ection 487 [defining grand theft], or any
other provision of law defining grand theft, obtaining 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 and shall be punished as a
misdemeanor [absent certain prior convictions].” (Italics added.)
The Supreme Court has applied section 490.2 to theft offenses.
(See People v. Romanowski, supra, 2 Cal.5th at p. 908 [violation
of section 484e, subd. (d), theft of access card information, is
statutorily defined as grand theft and therefore falls within scope
of section 490.2]; People v. Page, supra, 3 Cal.5th at pp. 1183,
1187 [section 490.2 extends to vehicle theft, in violation of Veh.
Code, § 10851].)
With respect to identity theft, however, the Courts of
Appeal have held a violation of section 530.5 is not a theft offense

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falling under section 490.2. (People v. Sanders (2018) 22
Cal.App.5th 397, 478-483 [§ 530.5, subd. (a)]; People v. Liu (2018)
21 Cal.App.5th 143, 150-153 [§ 530.5, subd. (c)(3); rev. denied
April 10, 2018]; see also People v. Truong (2017) 10 Cal.App.5th
551, 561 [in dual conviction context (§ 496), identity theft under
section 530.5, subd. (c)(3) is not a theft offense; rev. denied
July 12, 2017].) The Legislature did not categorize section 530.5
as a theft offense and did not include it among the offenses listed
in title 13, chapter 5 of the Penal Code, “[l]arceny.” (§ 484 et seq.)
It is instead defined in title 13, chapter 8, “[f]alse [p]ersonation
and [c]heats.” It is thus unlike section 484e, which defines
acquisition or possession of access card account information as
“grand theft.” (People v. Truong, supra, 10 Cal.App.5th at
p. 561.) Indeed, although commonly referred to as “identity
theft,” “[t]he gravamen of the section 530.5, subdivision (a)
offense is the unlawful use of a victim’s identity,” not theft.
(People v. Sanders, supra, 22 Cal.App.5th at p. 400.)
Identity theft is also distinguishable from theft offenses
because the potential harm to victims flowing from the use of
personal identifying information far exceeds the value of any
actual property obtained by the misuse of the information.
“Identity theft victims’ lives are often severely disrupted.”
(People v. Valenzuela (2012) 205 Cal.App.4th 800, 808, quoting
Sen. Com. on Public Safety, analysis of Assem. Bill No. 2886
(2005-2006 Reg. Sess.) as amended May 26, 2006, pp. O-P.) “By
its plain terms, section 530.5 addresses harms much broader
than theft.” (People v. Liu, supra, 21 Cal.App.5th at p. 152.)3
3 A footnote in People v. Liu, supra, 21 Cal.App.5th 143
merits a brief discussion. The defendant in Liu was convicted

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“‘[I]dentity theft in the electronic age is an essentially unique
crime, not simply a form of grand theft. [¶] . . . Grand theft is
typically a discrete event, not a crime that creates ripples of harm
to the victim that flow from the initial misappropriation.’”
(People v. Valenzuela, supra, 205 Cal.App.4th at p. 808, quoting
Sen. Com. on Public Safety, analysis of Assem. Bill No. 2886,
supra, at pp. O-P.)
Proposition 47’s treatment of identity theft in relation to
forgery is consistent with the conclusion that identity theft is a
more serious crime and one the Legislature did not view as
reducible. As amended by Proposition 47, section 473,
subdivision (b) defines forgery relating to a check where the value
does not exceed $950 as a misdemeanor. The subdivision is
inapplicable, however, to a person who is convicted of both
forgery and identity theft. (§ 473, subd. (b).)
Additionally, applying section 1170.18 to section 530.5
would be inconsistent with Proposition 47’s purpose—to
“[r]equire misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless the
defendant has prior convictions for specified violent or serious
under subdivision (c) of section 530.5, which makes it a crime to
acquire or retain personal identifying information with an intent
to defraud. Unlike subdivision (a), under which this defendant
was convicted, subdivision (c) does not require use of the
information without consent. In Liu at page 152 and footnote 3,
the court in dictum distinguished the subdivisions (a) and (c)
violations with respect to the without consent element. We do
not read the Liu footnote as suggesting the without consent
element of subdivision (a) of section 530.5, under which
defendant was convicted, makes it more like a theft offense than
that described in subdivision (c).

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crimes.” (Voter Information Pamp., Gen. Elec. (Nov. 4, 2014)
text of Prop. 47, § 3(3), p. 70.) Consistent with Proposition 47’s
purpose, and given the serious harm posed by identity theft, the
electorate could reasonably conclude that unlike petty theft,
identity theft is a serious crime worthy of felony status. (Cf.
People v. Martinez, supra, 4 Cal.5th at p. 654 [“the electorate
reasonably could have understood that drug possession and drug
transportation crimes are distinct and merit different treatment
under [Proposition 47]”].) Therefore, section 490.2 does not
support defendant’s motion for reduction.
2. Shoplifting: Section 459.5
Defendant also cites section 459.5, which was added by
Proposition 47 and defines the new offense of shoplifting. Section
459.5 addresses conduct that previously would have qualified as
burglary.4 Defendant has not explained, however, how he would
4 Section 459.5 states: “(a) Notwithstanding [s]ection 459
[defining burglary], 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. Shoplifting shall be punished as a
misdemeanor, except [when a person has specified prior
convictions]. . . . [¶] (b) 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.”

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have been guilty of misdemeanor shoplifting under
Proposition 47 had Proposition 47 been in effect when he
committed the identity theft. (§ 1170.18, subd. (a); People v.
Martinez, supra, 4 Cal.5th at p. 652.) He cites section 459.5
without analysis or argument. He does not cite any case
discussing section 459.5 in relation to a conviction, as here, of
identity theft. Defendant’s assertion without pertinent analysis
or argument does not warrant further discussion. (People v.
Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; People v. Bonin
(1989) 47 Cal.3d 808, 857, fn. 6.)
IV. DISPOSITION
The trial court’s July 14, 2017 order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P.J. MOOR, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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