Filed 5/4/17 P. v. Clarke CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KAREN KATHLEEN CLARKE,
Defendant and Appellant.
B272187
(Los Angeles County
Super. Ct. No. MA022366)
APPEAL from the judgment of the Superior Court of
Los Angeles County, Steven D. Ogden, Judge. Reversed and
remanded.
______
Elizabeth K. Horowitz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Kathleen A. Kenealy,
Acting Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General,
Margaret E. Maxwell and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
2
Appellant Karen Kathleen Clarke appeals from an
order denying her application to have her felony conviction
redesignated as a misdemeanor under Penal Code1 section 1170.18,
subdivision (f). Appellant contends the trial court erred in denying
her application because her felony conviction for violation of
section 484e, subdivision (d)—the unlawful acquisition and
possession of access card account information—fell under the recall
provisions of Proposition 47, the Safe Neighborhoods and Schools
Act (§ 1170.18, subds. (a)–(e)). In view of the Supreme Court’s
recent decision in People v. Romanowski (Mar. 27, 2017, S231405)
___ Cal.5th___ [2017 D.A.R. 2938] (Romanowski), holding that the
theft of access card account information is one of the crimes eligible
for reduced punishment under Proposition 47, we reverse and
remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, appellant was charged with five counts of theft of
access card account information (§ 484e, subd. (d) (counts 1-5))
and one count of acquiring access cards (§ 484e, subd. (b) (count 6)).
Pursuant to a negotiated plea agreement, appellant pled nolo
contendere to count 1, violation of section 484e, subdivision (d)
and the court dismissed the other counts. The court sentenced
appellant to two years in prison, imposed various fines and awarded
appellant custody credits.
On May 3, 2016, appellant filed an application for
redesignation of her conviction to a misdemeanor under
section 1170.18, subdivision (f). At the hearing on the application,
she argued that a section 484e, subdivision (d) conviction is eligible
for resentencing under Proposition 47 because it is a theft crime.
The trial court disagreed and denied appellant’s application.

1 Unless otherwise indicated, all statutory references are
to the Penal Code.
3
Appellant filed a timely notice of appeal.
DISCUSSION
Proposition 47, codified in section 1170.18, reduced the
penalties for certain enumerated nonserious, nonviolent crimes
like petty theft and drug possession.
2 The initiative also amended
and added a number of sections to the Penal Code, including
section 490.2, subdivision (a), which provides in pertinent part,
“[n]otwithstanding [s]ection 487[
3] or any other provision of law
defining grand theft, obtaining any property by theft where the
value of 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.” (§ 490.2, subd. (a).)
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; see
§§ 484d–484j.) 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,

2 Section 1170.18, subdivision (a) provides:
“A person who, on November 5, 2014, was serving a sentence for
a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added
this section (“this act”) had this act been in effect at the time of the
offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code, as those sections have been amended or
added by this act.”
3 Section 487 defines grand theft as occurring “[w]hen
the money, labor, or real or personal property taken is of a value
exceeding nine hundred fifty dollars ($950).” (§ 487.)
4
without the cardholder’s or issuer’s consent, with the intent to use it
fraudulently, is guilty of grand theft.” (§ 484e, subd. (d).)
Last month the California Supreme Court in Romanowski
resolved the split of authority among the appellate courts on
whether the theft of access card information under section 484e,
subdivision (d), is reducible to a misdemeanor under section 490.2.
(See People v. Grayson (2015) 241 Cal.App.4th 454, review granted
Jan. 20, 2016, S231757 (Grayson) [holding that a section 484e,
subdivision (d) conviction is not subject to reduction under
section 490.2]; People v. Cuen (2015) 241 Cal.App.4th 1227,
review granted Jan. 20, 2016, S231107 (Cuen) [in accord with
Grayson]; People v. King (2015) 242 Cal.App.4th 1312, review
granted Feb. 24, 2016, S231888 [following Grayson and Cuen];
People v. Thompson (2015) 243 Cal.App.4th 413, review granted
Mar. 9, 2016, S232212 [holding that section 490.2 applies to
section 484e, subdivision (d)].)
In concluding that section 484e, subdivision (d) offenses may
be eligible for reduction to misdemeanors under Proposition 47, the
Romanowski Court held that “[a]fter Proposition 47, theft of access
card information ‘where the value of the . . . property taken does
not exceed nine hundred fifty dollars ($950)’ can be a misdemeanor.
(§ 490.2, subd. (a).) As with any other theft that is punished based
on the stolen property’s value, ‘the reasonable and fair market
value shall be the test’ for applying section 490.2’s $950 threshold.
(§ 484, subd. (a).)” (Romanowski, supra, ___ Cal.5th___ [2017
D.A.R. at p. 2943].) In addition, the Supreme Court explained
that “[w]hen stolen access card information lacks a legal market,
moreover, courts may consider evidence concerning the potential
for illicit sale of the access card information in order to determine
its value.” (Ibid.)
The Romanowski Court further held that the petitioner bears
the burden of proving the value of the access card information,
5
observing, that, “[i]n some cases, the uncontested information in the
petition and record of conviction may be enough for the petitioner
to establish this eligibility. . . . But in other cases, eligibility for
resentencing may turn on facts that are not established by either
the uncontested petition or the record of conviction. In these
cases, an evidentiary hearing may be ‘required if, after considering
the verified petition, the return, any denial, any affidavits or
declarations under penalty of perjury, and matters of which judicial
notice may be taken, the court finds there is a reasonable likelihood
that the petitioner may be entitled to relief and the petitioner’s
entitlement to relief depends on the resolution of an issue of fact.’ ”
(Romanowski, supra, ___Cal.5th___ [2017 D.A.R. at p. 2943].) Here
because the trial court rejected appellant’s application based on the
court’s conclusion that her section 484e, subdivision (d) conviction
was ineligible for reclassification as a matter of law, this matter
must be remanded for further proceedings to give appellant an
opportunity to demonstrate whether her conviction is eligible for
reclassification under Proposition 47.
6
DISPOSITION
The judgment is reversed and the matter is remanded to
the superior court for reconsideration of appellant’s application for
reclassification of her section 484e, subdivision (d) conviction in
light of Romanowski.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
LUI, J.