Filed 8/1/16 P. v. Rushing 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

LESLIE W. RUSHING,

Defendant and Appellant.

 B262944

 (Los Angeles County

 Super. Ct. No. MA055803)

APPEAL from an order of the Superior Court of Los Angeles County.

Christopher G. Estes, Judge. Affirmed.

Adrian K. Panton, 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 Blythe J. 

Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

Defendant Leslie Wyvonna Rushing appeals from the order denying her petition to 

recall her felony sentence and resentence as a misdemeanor pursuant to Penal Code 

section 1170.18,1 which was added by Proposition 47.2

Defendant contends her right to due process (U.S. Const., 14th Amend.; Cal. 

Const., art. I, § 15) was violated when the trial court improperly deemed her to have been 

convicted of identity theft (§ 530.5) rather than grand theft under section 484e, 

subdivision (d) (§ 484e(d)). She further contends a felony conviction for grand theft of 

card access information in violation of section 484e(d) is eligible for relief, because 

pursuant section 490.2, subdivision (a) (§ 490.2(a)), grand theft of property whose value 

 

1 All further section references are to the Penal Code.

2 Proposition 47 is an initiative measure approved by the voters (Gen. Elec. Nov. 4, 

2014) and took effect on November 5, 2014 (see Cal. Const., art. II, § 10 [initiative 

statute “takes effect the day after the election unless the measure provides otherwise”]). 

“The initiative: added Government Code chapter 33 of division 7 of title 1 (§ 7599 

et seq., the Safe Neighborhoods and Schools Fund); added sections 459.5, 490.2 and 

1170.18 to the Penal Code; amended sections 473, 476a, 496 and 666 of the Penal Code; 

and amended Health and Safety Code sections 11350, 11357 and 11377. (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) The 

electorate’s stated purpose and intent was to ‘(1) Ensure that people convicted of murder, 

rape, and child molestation will not benefit from this act. [¶] (2) Create the Safe 

Neighborhoods and Schools Fund . . . for crime prevention and support programs in K-12 

schools, . . . for trauma recovery services for crime victims, and . . . for mental health and 

substance abuse treatment programs to reduce recidivism of people in the justice system. 

[¶] (3) Require 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 crimes. [¶] (4) Authorize consideration of resentencing for anyone who 

is currently serving a sentence for any of the offenses listed herein that are now 

misdemeanors. [¶] (5) Require a thorough review of criminal history and risk 

assessment of any individuals before resentencing to ensure that they do not pose a risk to 

public safety. [¶] (6) [And to] save significant state corrections dollars on an annual 

basis [and] increase investments in programs that reduce crime and improve public 

safety, such as prevention programs in K-12 schools, victim services, and mental health 

and drug treatment, which will reduce future expenditures for corrections.’ (Voter 

Information Guide, supra, text of Prop. 47, § 3, p. 70.)” (People v. Shabazz (2015) 237 

Cal.App.4th 303, 308.) 
3

does not exceed $950 “[n]otwithstanding . . . any other provision of law defining grand 

theft” is a misdemeanor. 

We affirm the order denying relief under Proposition 47.3 Defendant has failed to 

demonstrate her eligibility for Proposition 47 relief. It is incumbent on defendant, in the 

first instance, to make a prima facie showing that she “would have been guilty of a 

misdemeanor under [Proposition 47] . . . had this act been in effect at the time of the 

offense.” (§ 1170.18, subd. (a).) Her conviction for violating section 484e(d) does not 

fall within the purview of Proposition 47.

BACKGROUND

On April 16, 2012, pursuant to a plea agreement, defendant pleaded no contest to a 

felony conviction of acquiring or retaining access card account information with 

fraudulent intent to use in violation of section 484e(d).

On May 8, 2012, the trial court suspended imposition of sentence and placed 

defendant on formal probation for a three-year period with credit for time served on 

certain terms and conditions, including 45 days of community service and payment of 

restitution to the victim in the stipulated amount of $120.4

On March 12, 2015, defendant filed a petition for recall of sentence and 

resentencing as a misdemeanor, because the offense for which she had been convicted 

had been reduced to a misdemeanor under Proposition 47. 

 

3 We invited the parties to file supplemental briefing on various issues, but our 

disposition renders unnecessary discussion of these additional issues

4 On the probation report filed May 8, 2012, the trial court made a handwritten 

notation that “Per DDA $120 – to David Alles,” who was the victim. 
4

On March 17, 2015, during the hearing, the court denied the petition. Further, 

defendant admitted violating probation,

5 and the court revoked probation and then 

reinstated probation. 

DISCUSSION

1. Denial of Proposition 47 Petition

On March 12, 2015, defendant filed a petition for recall of her felony sentence and 

for resentencing as a misdemeanor in which she asserted she had been convicted of “§487 

Grand Theft,” which had been reduced to a misdemeanor from a felony pursuant to 

Proposition 47. The People responded that defendant was foreclosed from such relief, 

because her conviction was for a violation of section 484e(d), which section was not 

included in Proposition 47. 

At the hearing the same day, the prosecutor argued that a conviction for violating 

section 484e(d) was ineligible for relief under Proposition 47 because “this charge, which 

is an access fraud case, has the element that the possession of the fraudulent information 

be used to defraud the victim, that that is the same charge, essentially, as an identity theft, 

which is . . . not a charge eligible for [Proposition 47] relief.” Defense counsel disagreed, 

arguing: “[A]lthough it may be analogous to the identity theft, that’s not what was 

charged or what she was convicted of. She was convicted of a theft-related crime, and 

Prop. 47, itself, indicates it should be read expansively.” 

On March 17, 2015, when the hearing resumed, the trial court ruled a conviction 

for violating section 484e(d) was not eligible for Proposition 47 relief, because section 

484e(d) did not define an offense within the meaning of section 490.2(a), which was 

covered by Proposition 47 if the value of the property taken did not exceed $950. In 

denying the petition, the court explained: “The conviction of violation of . . . section 

484e(d). It is entitled subsection (a), grand theft. So the issue is whether or not that falls 

within the purview of Proposition 47, in particular . . . section 490.2. And the language 

 

5 A supplemental probation report was prepared which indicated defendant violated 

probation by failing to make any payments toward her restitution obligation and to 

perform her community service, among other violations. 
5

of 490.2 dealing with grand theft in a value of $950. It’s the court’s position that the 

specific language of [section 484e(d)] is more consistent with the language of . . . section 

530.5, identity theft. [Section] 484e requires the element includes obtaining access card 

information with the intent to use it. And the court believes the specific language of 

484e(d) falls outside the scope of Proposition 47. It’s more consistent with [the] 

language of . . . section 530.5, which was not included as an eligible crime under Prop. 

47, so the petition will be denied.”

2. Violation of Section 484e(d) Not Embraced by Proposition 47 

Comparing the elements of section 490.2(a) with those of section 484e(d), the 

conclusion arises that the offenses defined in these two sections are distinct and different 

from each other. For this reason, we conclude a violation of section 484e(d) cannot be 

shoehorned into a violation of section 490.2(a) for the purposes of Proposition 47 relief.6 

Pursuant to Proposition 47, section 490.2(a) provides: “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.” (Italics added.) In contrast, section 484e(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. (Italics added.)

 

6

 This issue is pending before our Supreme Court in various cases. (See, e.g., 

People v. Cuen (S231107, formerly (2015) 241 Cal.App.4th 1227); People 

v.Romanowski (S231405, formerly (2015) 242 Cal.App.4th 151); People v. Grayson

(S231757, formerly (2015) 241 Cal.App.4th 454); People v. King (S231888, 

formerly (2015) 242 Cal.App.4th 1312); People v. Thompson (S232212, formerly 

(2015) 243 Cal.App.4th 413).) 

In a letter brief filed May 19, 2016, respondent cited to People v. Solis as 

authority for its position that section 484e(d) “‘does not primarily define a “theft” 

crime.’” On June 8, 2016, a grant and hold order was issued in Solis. (S234150, 

formerly (2016) 245 Cal.App.4th 1099.)
6

The key elements of a violation of section 490.2(a) are: (1) “obtaining any 

property by theft” and (2) “the value of the . . . property taken does not exceed” $950. In 

contrast, the key element of a violation of section 484e(d) is “the intent to use . . . 

fraudulently” the access card account information associated with an access card. There 

is no value element to that offense. Additionally, there is no requirement in section 

484e(d) that defendant’s unlawful possession of this information result in actual fraud on 

or any financial or other loss to the cardholder. (See People v. Molina (2004) 120 

Cal.App.4th 507, 512, 516 [§ 484e(d) does not require actual use; “the account of an 

innocent consumer actually be charged or billed”; or “access card be valid at the time of 

the fraudulent possession”]; CALCRIM No. 1952.)

In view of the above, we conclude that section 484e(d) does not define an offense 

that is embraced by section 490.2(a) for which Proposition 47 relief is afforded. 

3. No Denial of Due Process Shown

Defendant contends her right to due process was violated when the trial court 

convicted her of a crime which she was not charged with or received notice of. She has 

failed to demonstrate her right to due process was abridged. The fallacy of her position 

lies in her fatally flawed premise that at the hearing on her Proposition 47 petition, the 

trial court “convicted” her of identity theft (§ 530.5) rather than grand theft under section 

484e(d). When viewed in context, the gist of the trial court’s comments simply was to 

analogize her conviction for violating section 484e(d) as a violation of section 530.5, 

which defines the offense of identity theft, rather than as a violation of section 490.2(a), 

which defines the offense of grand theft of property whose value does not exceed $950 as 

a misdemeanor. (See People v. Thurston (1999) 71 Cal.App.4th 1050, 1054 [comparing 

crimes to determine intent element of spousal abuse].)

CONCLUSION

The trial court did not err in denying defendant’s petition to recall her felony 

sentence and resentence as a misdemeanor. She failed to satisfy her threshold burden to 

establish she “would have been guilty of a misdemeanor under [Proposition 47] . . . had 

this act been in effect at the time of the offense” (§1170.18, subd. (a)). A felony 
7

conviction for violating section 484e(d) does not qualify as a misdemeanor under section 

490.2(a) for which Proposition 47 relief is available. Defendant also failed to establish 

any abridgment of her right to due process. 

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.