Filed 3/8/16 P. v. Shorter CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY SHORTER,

Defendant and Appellant.

 B263972

 (Los Angeles County

 Super. Ct. No. YA054743)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steven R. Van Sicklen, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Paul S. Thies, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

In an information filed by the Los Angeles County District Attorney’s Office, 

defendant and appellant Anthony Shorter was charged with three counts of first degree 

burglary (counts 1, 2, & 6; Pen. Code, § 459),

1

three counts of receiving stolen property 

(counts 3, 4, & 7; § 496, subd. (a)), and one count of theft (count 5; § 484e). It was 

further alleged as to all counts that appellant had served one prior prison term (§ 667.5, 

subd. (b)) and had suffered three prior “strike” convictions (§§ 667, subds. (b)-(j), 

1170.12). And, it was alleged as to counts 1 through 6 that appellant suffered three prior 

serious felony convictions (§ 667, subd. (a)(1)).

On September 25, 2003, a jury convicted appellant on all counts, and the three 

prior serious felony allegations and “strike” allegations were found true. Appellant’s 

total prison sentence was 90 years to life.

On February 27, 2015, appellant filed a petition for recall and resentencing 

pursuant to section 1170.18, subdivisions (a) and (f). The trial court granted his petition 

as to counts 3, 4, and 7. It denied the petition as to count 5. Appellant’s total prison 

sentence remained 90 years to life. 

Appellant timely filed a notice of appeal. He argues that his theft conviction under 

section 484e, subdivision (d) [theft of access cards or account information], must be 

reduced to a misdemeanor pursuant to Proposition 47.2

We affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Because this is an appeal from a denial of a petition for recall and resentencing, 

the trial court’s adjudication of the underlying conviction is not part of the record. As 

such, we have omitted a statement of the facts that led to appellant’s conviction. The 

facts are summarized in appellant’s prior appeal. (People v. Shorter (July 7, 2005, 

B174700) [nonpub. opn.].) 
3

DISCUSSION

I. Standard of Review

In this appeal, we are asked to interpret sections 490.2 and 1170.18. We 

independently determine issues of law, including the interpretation and construction of 

statutory language. (People v. Love (2005) 132 Cal.App.4th 276, 284.) In so doing, we 

keep in mind the following principles:

“Our role in construing a statute is to ascertain the intent of the Legislature so as to 

effectuate the purpose of the law.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 

1040; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 [we interpret an 

initiative’s language to effectuate the electorate’s intent].) “‘“When statutory language is 

clear and unambiguous, there is no need for construction and courts should not indulge in 

it.” [Citation.]’” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) “But if the language is 

ambiguous, [the court] consider[s] extrinsic evidence in determining voter intent, 

including the Legislative Analyst’s analysis and ballot arguments for and against the 

initiative.” (Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space 

Authority (2008) 44 Cal.4th 431, 444–445.)

II. Overview of Proposition 47

Under section 1170.18, the resentencing provision created by the enactment of 

Proposition 47, a person currently serving a felony sentence for an offense that 

Proposition 47 made a misdemeanor may petition for a recall of that sentence and request 

resentencing in accordance with the statutes added or amended by Proposition 47. 

(§ 1170.18, subd. (a).) As is relevant to the issues in this appeal, these statutes include 

sections 459.5, 473, 476a, 490.2, 496, and 666. (§ 1170.18, subd. (a).) Section 490.2, 

also added by Proposition 47, provides, in relevant part: “‘[N]otwithstanding 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 . . . .’”
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III. Applicable Statutes

Section 487 provides, in relevant part: “Grand theft is theft committed in any of 

the following cases: [¶] (a) When the money, labor, or real or personal property taken is 

of a value exceeding nine hundred fifty dollars ($950) . . . .” Section 484e, subdivision 

(d), provides: “Every person who acquires or retains possession of access card account 

information with respect to an access card validly issued to another person, without the 

cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand 

theft.”

IV. Analysis

At issue is whether section 484e, subdivision (d), falls within the scope of section 

1170.18. We conclude that it does not.

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 While section 1170.18, subdivision (a), clearly 

lists several theft-related offenses, it does not include theft of access card information 

under section 484e, subdivision (d). (People v. Hendrix, supra, 16 Cal.4th at p. 512.)

Moreover, section 484e is part of a “‘comprehensive statutory scheme which 

punishes a variety of fraudulent practices involving access cards.’” (People v. Molina

(2004) 120 Cal.App.4th 507, 512.) “The Legislature intended to provide broad protection 

to innocent consumers.” (Id. at p. 519.) While appellant argues that the voters intended 

to prohibit felony punishment for violations of section 484e, subdivision (d), when the 

value of the property is not more than $950, (1) we presume that the voters were aware of 

existing laws and judicial construction thereof, including section 484e and its broad 

protection of consumers (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11), and (2) there 

is no evidence that the voters intended for Proposition 47 to undercut this broad 

protection to innocent consumers. 

3 There is a split of authority as to whether section 490.2 applies to section 484e. 

(See People v. Haywood (2015) 243 Cal.App.4th 515, 522, fn. 10.) The issue is pending 

before our California Supreme Court. (See, e.g., People v. Cuen (review granted Jan. 20, 

2016, G051368).)
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We reject appellant’s contention that his crime should be reduced to a 

misdemeanor because all theft crimes are covered by section 1170.18. But section 484e 

is not purely a theft crime; it covers both acquisition or retention of access card 

information. (People v. Molina, supra, 120 Cal.App.4th at p. 516 [“crime is possession 

of access card account information with a fraudulent intent” and “does not require that 

the information actually be used or that the account of an innocent consumer actually be 

charged or billed”].) Thus, even if all theft crimes were within the scope of section 

1170.18, which we do not hold, appellant’s crime would still not be included.

Moreover, it is well-established that a specific statutory provision relating to a 

particular subject controls over a more general provision. (Hughes Electronics Corp. v. 

Citibank Delaware (2004) 120 Cal.App.4th 251, 270.) Section 484e, subdivision (d), is a 

more specific statute, and it describes grand theft without reference to value. It has been 

deemed serious enough to trigger felony punishment. (People v. Molina, supra, 120 

Cal.App.4th at p. 518.) For this additional reason, appellant’s crime should not be 

reduced to a misdemeanor.

The rule of lenity, “whereby courts must resolve doubts as to the meaning of a 

statute in a criminal defendant’s favor,” does not aid appellant. (People v. Avery (2002) 

27 Cal.4th 49, 57.) That rule applies “‘only if the court can do more than guess what the 

legislative body intended; there must be an egregious ambiguity and uncertainty to justify 

invoking the rule.’” (Id. at p. 58.) No such ambiguity or uncertainty exists here.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

ASHMANN-GERST

We concur:

______________________________, P. J.

BOREN

______________________________, J.

CHAVEZ