State Supreme Court reverses appellate panel on Proposition 47 identity theft issue

In a reversal that further clarifies the system-shaking Proposition 47, the state Supreme Court on Monday held that a felony identity theft conviction can't be reduced to a misdemeanor akin to shoplifting under the 2014 voter-approved law.

The unanimous opinion is a victory for Ventura County District Attorney Gregory D. Totten, who appealed after a trial judge reduced a man's felony jury convictions for misusing personal identifying information to misdemeanors on a defense motion brought under the proposition. The defendant was freed the day of sentencing because of credit for time served.

The 2nd District Court of Appeal affirmed Superior Court Judge Manuel J. Covarrubias' decision in 2018, but under the high court's Monday ruling, the panel must send the case back to Covarrubias, who must impose a new sentence "not inconsistent with this opinion." People v. Jimenez, S249397 (Cal. 2020).

Written by Justice Mariano-Florentino Cuéllar, the opinion distinguishes between criminal theft offenses and the unlawful use of personal information, holding the latter isn't the former "because criminal liability pivots on how the information was used rather than how it was acquired."

The opinion distinguishes itself from the court's 2017 ruling in People v. Gonzales, which held a felony burglary conviction for cashing a stolen check should be reduced to a misdemeanor under Proposition 47 because it involved less than $950. People v. Gonzales, 2 Cal. 5th 858 (Cal. 2017). It also opens by describing the rise in consumers entrusting businesses with their personal data, which is "increasingly susceptible to breach and misuse."

William M. Quest, a senior Ventura County deputy public defender, said the ruling essentially overturns Gonzales by giving prosecutors a way to avoid the shoplifting misdemeanor by instead charging identity theft.

"It's going to have a profound effect up and down the state," Quest said. "Every DA is going to be charging any conduct under Gonzales as identity theft."

Ventura County Chief Deputy District Attorney W. Charles "Chuck" Hughes called the ruling "a good outcome for prosecutors and crime victims statewide."

"This code section ... is designed to protect people whose credit ratings and other personal private information is misused," Hughes said. "And there can be all kinds of negative consequences for these victims that go beyond commercial use of property."

The court heard oral argument on Dec. 3 from Quest and Michelle Jeannette Contois, a Ventura County deputy district attorney.

Contois said she doesn't anticipate prosecutors charging traditional theft cases as identify theft, because, "I don't think a traditional theft offense is anything like identity theft."

The harm to the victim "is above and beyond the value to the perpetrator" and can't be compared to thefts such as stolen packages or shoplifting, Contois said.

Quest said he was "deeply disappointed" in what he described as "a huge step backward" after many positive high court rulings regarding Proposition 47.

"There is no way to distinguish this case from Gonzales," Quest said. "Justice Cuéller did about as well a job as he could, but there's just no way."

Quest's client, Miguel Angel Jimenez, was charged in 2016 under Criminal Code Section 530.5 (a) after he cashed two checks for less than $950 each in the name of a business that had not authorized them. That's similar to what the Gonzales defendant did, but Monday's opinion focuses on the fact that unlike in Gonzales

"The prohibitions on shoplifting and misuse of personal identifying information protect potential victims from different harms," according to the opinion."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."

Jimenez now faces three years, eight months in prison, Quest said.