People v. Warmington

224 Cal. Rptr. 3d 291, 16 Cal. App. 5th 333, 2017 Cal. App. LEXIS 902
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 17, 2017
DocketC082556
StatusPublished
Cited by2 cases

This text of 224 Cal. Rptr. 3d 291 (People v. Warmington) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Warmington, 224 Cal. Rptr. 3d 291, 16 Cal. App. 5th 333, 2017 Cal. App. LEXIS 902 (Cal. Ct. App. 2017).

Opinion

Blease, Acting P. J.

*334Defendant Leonard Dennis Warmington appeals from the trial court's order denying his Penal Code section 1170.181 petition for redesignation of his felony conviction for embezzlement (§ 503) to a misdemeanor. He contends the trial court erred in finding his crime was not subject to section 1170.18 relief. We agree and shall reverse the trial court's order and remand with instructions to enter an order granting the requested relief.

*335BACKGROUND

In December 2002, defendant, a courtesy clerk at a Redding Walmart, was discovered to have stolen a television from the store, returned it for a $746.46 Walmart gift card, and used the card to purchase various items. Confronted by a police officer, defendant admitted stealing other items from the Walmart, including a recliner chair. Defendant was ordered to return the items he stole. The value of the items stolen by defendant and subsequently returned was $851.

Defendant pleaded no contest to embezzlement in October 2003 and was placed on three years' formal probation in November 2003.

In February 2016, defendant filed a section 1170.18 petition to redesignate his offense as a misdemeanor. The trial court denied the petition without prejudice to filing a new petition, on the ground that defendant's crime was not eligible for relief.

DISCUSSION

Defendant contends the trial court erred in finding the crime of embezzlement was not eligible for section 1170.18 relief. We agree.

The passage of Proposition 47 created section 1170.18, which provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the *293felony conviction or convictions designated as misdemeanors." ( § 1170.18, subd. (f) ; see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, p. 74.)

Proposition 47 enacted section 490.2, which states in pertinent part: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any 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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 490.2, subd. (a).)

Section 503 defines embezzlement as "the fraudulent appropriation of property by a person to whom it has been intrusted." Section 490a states, *336"[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor."

After briefing was concluded, the California Supreme Court decided two cases addressing sections 490.2 and 490a and their relationship to section 1170.18. (See People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ); People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ).) We asked for supplemental briefing on these cases. The Attorney General concedes that the Supreme Court's decisions "undermine most if not all of the arguments advanced in the Respondent's Brief."

Romanowski held that theft of access card account information (§ 484e, subd. (d)) was eligible for relief under section 1170.18. ( Romanowski, supra , 2 Cal.5th at pp. 905-906, 215 Cal.Rptr.3d 758, 391 P.3d 633.) In arguing that section 490.2 did not cover this crime, the Attorney General argued that section 484e, subdivision (d)2 is not primarily a theft crime "because the statute 'is violated when someone acquires or retains possession of access card account information issued to another person (and with the intent to use it fraudulently).' " ( Romanowski , at p. 912, 215 Cal.Rptr.3d 758, 391 P.3d 633.) In rejecting this argument, the Supreme Court noted that taking the information without the owner's consent was theft. ( Ibid . ) Even if the owner initially gave the access card information to the defendant, wrongful retention of that information would still be subject to section 490.2.

"Even when a defendant is voluntarily entrusted with someone else's access card information, any attempt to 'retain[ ] possession' of the information 'without the cardholder's or issuer's consent' and 'with the intent to use it fraudulently' (§ 484e, subd. (d)) would be a form of embezzlement, which is covered by section 484's definition of 'theft.' (See §§ 503 ['Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted'], 484 ['Every person ... who shall fraudulently appropriate property which has been entrusted to him or her ... is guilty of theft']; see also People v. Davis (1998) 19 Cal.4th 301, 304 [79 Cal.Rptr.2d 295,

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Related

People v. Gollardo
California Court of Appeal, 2017
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225 Cal. Rptr. 3d 666 (California Court of Appeals, 5th District, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 291, 16 Cal. App. 5th 333, 2017 Cal. App. LEXIS 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-warmington-calctapp5d-2017.