Filed 5/11/17 P. v. Franklin CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SHIRLEY ANN FRANKLIN,
Defendant and Appellant.
F071973
(Super. Ct. No. 6324)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Rachel P. Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A.
Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.
2
Appellant Shirley Ann Franklin appeals from the denial of her petition for
resentencing under Penal Code section 1170.18,
1
seeking modification of the sentence
imposed on two of her convictions for use of an access card unlawfully obtained (§ 484g,
subd. (a)). Appellant contends her convictions are eligible for resentencing under
Proposition 47 because an unsuccessful attempt to obtain property through the use of an
access card qualifies as petty theft. For the reasons set forth below, we reverse and
remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Relevant to the issues raised in this appeal, appellant was charged in 1993 on a
nine-count complaint with what was identified as two counts of felony fraudulent use of
access cards (§ 484g, subd. (a); counts one and two), two counts of felony attempted
fraudulent use of access cards2
(§ 484g, subd. (a); counts three and four), one count of
receiving stolen property (§ 496; count five), and four counts of forgery of an access card
or signature (§ 484f, subd. (2); counts six through nine).3
With respect to the two
contested charges, the complaint alleged that on April 25, 1993, appellant “did willfully,
unlawfully, feloniously, and knowingly, without any authority to do so and with the
intent to defraud the parties hereinafter named, attempt[ed] to use the credit card of
[VICTIM] for the purpose of obtaining goods, property and services” from a Weinstocks

1 All further references are to the Penal Code, unless otherwise noted.
2 Appellant states she was charged with an actual attempt under section 664. The
record does not reflect this fact and, in light of the structure of section 484g,
subdivision (a), it is apparent appellant was charged with the same crime in counts one
through four, with the description covering the factual basis for each count. To avoid
confusion, we will refer to the relevant crimes as use of an access card unlawfully
obtained or as counts three and four.
3 The statutory code references in the complaint relate to the 1993 code. Subject to
certain subdivision numbering changes, however, the substance of the laws remains the
same today.
3
and a Sears store, “the total amount of such goods, property and services so obtained
being of a value in excess of Four Hundred Dollars ($400.00).”
Appellant ultimately pled guilty to counts one through four. She received a
sentence of two years on each count, with counts two through four running concurrent to
count one, for a total commitment of two years. At the time, appellant was already
serving a lengthy sentence for unrelated crimes, resulting in a total sentence of
approximately 23 years.
On November 25, 2014, appellant filed a petition for writ of habeas corpus
seeking resentencing pursuant to Proposition 47. The petition covered all of appellant’s
convictions, including the case containing counts three and four. Although not reflected
in the record, the trial court stated appellant also filed a subsequent petition under
Proposition 47.4
The trial court ordered the district attorney’s office to prepare an
informal response. In that response, the district attorney argued appellant was not
statutorily eligible on counts one through four because the value of the goods obtained
was greater than $950, writing:
“This case stems from [appellant]’s theft of [the victim’s] personal
items in April 1993. [The victim] never gave [appellant] permission to use
his credit cards, but she used his cards to purchase or attempt to purchase
multiple items.
“Count I: On April 23, 1993, [appellant] used [the victim’s] credit
card to purchase $1,455.12 in items from Sears in
Modesto.
“Count II: On April 25, 1993, [appellant] used [the victim’s] credit
card to purchase $1,297.08 in items from Weinstocks
department store in Modesto.
“Count III: On April 25, 1993, [appellant] used [the victim’s] credit
card to attempt to purchase $1,300.77 in items from
Weinstocks department store in Modesto.

4 The People do not contend appellant’s petition was insufficient to raise her request
for resentencing.
4
“Count IV: On April 25, 1993, [appellant] used [the victim’s] credit
card to attempt to purchase $1,365.19 in items from
Sears in Modesto.
“[¶] … [¶] Because the value for each of these counts exceeded
$950, [appellant] is statutorily ineligible for resentencing under Prop[.]
47 for every [count].”
Attached to the informal response were the loss prevention reports relating to
counts three and four. These documents showed that appellant did not complete her
purchases when using the victim’s credit card on April 25, 1993. With respect to count
three, the loss prevention report indicated appellant attempted to purchase items at
Weinstocks’s young men’s department, for which she signed the victim’s name, but the
transaction was voided out when the cashier could not determine appellant had proper
authorization to use the victim’s credit card. With respect to count four, the loss
prevention report indicated appellant attempted to purchase items at Sears’s jewelry
department but was denied when the cashier could not determine appellant had proper
authorization to use the victim’s credit card.
Based on the informal response and off-record discussions, the trial court denied
appellant’s writ and petition. Appellant later filed a petition for writ of habeas corpus
that was deemed a timely appeal of this ruling.
DISCUSSION
Appellant argues that she is eligible for resentencing under Proposition 47 because
her crime would constitute petty theft under section 490.2. This is so, appellant argues,
because she obtained no property in the commission of her theft and, thus, the value of
the goods obtained was less than $950.
Standard of Review and Applicable Law
“In November 2014, California voters enacted Proposition 47, which ‘created a
new resentencing provision: section 1170.18. Under section 1170.18, a person
“currently serving” a felony sentence for an offence that is now a misdemeanor under
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Proposition 47, may petition for a recall of that sentence and request resentencing in
accordance with the statutes that were added or amended by Proposition 47. [Citation.]
A person who satisfies the criteria in section 1170.18 shall have his or her sentence
recalled and be “resentenced to a misdemeanor … unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” ’ ” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (RivasColon).)
As part of its amendments, Proposition 47 added an explicit definition for petty
theft, which was previously defined pursuant to section 488 as simply “[t]heft in other
cases,” meaning theft not qualifying as grand theft. Section 490.2, subdivision (a) now
provides: “Notwithstanding Section 487 [defining grand theft generally] 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.…”
Although not modified by Proposition 47, section 484g provides that every
“person who, with the intent to defraud, (a) uses, for the purpose of obtaining money,
goods, services, or anything else of value, an access card or access card account
information that has been altered, obtained, or retained in violation of Section 484e or
484f, or an access card which he or she knows is forged, expired, or revoked … is guilty
of theft.” The statute goes on to define when the crime constitutes grand theft, explaining
if “the value of all money, goods, services, and other things of value obtained in violation
of this section exceeds nine hundred fifty dollars ($950) in any consecutive six-month
period, then the same shall constitute grand theft.” (§ 484g.)
The trial court is tasked with determining whether a petitioner is eligible for
resentencing. (§ 1170.18, subd. (b).) As the trial court’s eligibility determination is
factual in nature, we review that determination for substantial evidence. (People v.
Johnson (2016) 1 Cal.App.5th 953, 960; see also People v. Hicks (2014) 231 Cal.App.4th
6
275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; Rivas-Colon, supra,
241 Cal.App.4th at p. 452, fn.4 [“ ‘[T]he basic structure of Proposition 47 is strikingly
similar to Proposition 36’ and ‘much of the appellate interpretation of Proposition 36 is
likely relevant in the interpretation of Proposition 47.’ ”].)
Our review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242
Cal.App.4th 1108, 1114.)
Substantial Evidence Does Not Support the Claim Appellant Committed Grand Theft
We agree with appellant’s contention that the trial court erred in determining she
was statutorily ineligible for relief. The record does not contain substantial evidence
supporting the trial court’s conclusion that appellant’s criminal conduct was valued at
more than $950. In explaining this conclusion, a broader analysis of the law and its
application to the facts of this case is necessary.
In this case, appellant’s two-year sentences for use of an access card unlawfully
obtained were the result of convictions for grand theft. As noted above and by the People
in their responsive brief, a conviction under section 484g, subdivision (a), is distinct from
the common understanding of theft in that no property need be taken. (See § 484
[defining theft, in part, as feloniously stealing, taking, carrying, leading, or driving away
the personal property of another].) Under section 484g, subdivision (a), a theft is
committed upon the mere use of an access card that was unlawfully obtained, regardless
of whether property is ultimately obtained. (People v. Love (2008) 166 Cal.App.4th
1292, 1298 (Love) [“The conduct described by the plain language of the statute is
completed regardless of whether the object is obtained.”].) Relevant here, the statutory
scheme at the time of appellant’s crime defined such a theft as grand theft when the value
of all goods obtained in violation of section 484g over a six-month period exceeded $400
(now $950). (§ 484g, as amended by Stats. 1986, ch. 1436, § 4.) The record shows
appellant obtained several thousand dollars in goods in counts one and two, which
occurred within six months of counts three and four, and appellant’s two-year sentence
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was consistent with the midterm for grand theft. (§ 489, as amended by Stats. 1989,
ch. 1167, § 1.1.)
Under Proposition 47, a new definition for petty-theft, which directly affects the
definition of grand theft in various statutes, was introduced through section 490.2. As
noted above, section 490.2 provides that “[n]otwithstanding … 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.” Section 490.2 conflicts
with the definition of grand theft under section 484g because section 490.2 does not
contain a temporal period under which criminal conduct can be aggregated to reach the
threshold for grand theft.
To resolve this conflict, we must interpret the meaning of section 490.2. “ ‘Our
objective in interpreting a statute is to determine legislative intent so as to effectuate the
law’s purpose. The first thing we do is read the statute, and give the words their ordinary
meanings unless special definitions are provided. If the meaning of the words is clear,
then the language controls; if not, we may use various interpretive aids.’ ” (Love, supra,
166 Cal.App.4th at p. 1297.) In this case, the plain meaning of section 490.2 is clear.
Regardless of any definition of grand theft contained in section 484g, if the property
obtained by theft does not equal at least $950 with respect to any particular charge, that
crime shall be considered petty theft and shall be punished as a misdemeanor. In other
words, notwithstanding the temporal period detailed in section 484g, section 490.2
renders mere use of an access card unlawfully obtained petty theft unless goods in excess
of $950 are obtained when the theft is committed (i.e., when the card is used).
The People argue appellant cannot show eligibility because section 484g is not
specifically listed as a statute under which resentencing can be requested under section
1170.18, subdivision (a). According to the People, because section 484g is not a
traditional theft crime, section 490.2 does not automatically modify the statute and
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therefore cannot be relied upon as a basis for resentencing. We do not agree. Although
different in nature from what would be commonly understood as theft, section 484g
explicitly defines the use of an access card unlawfully obtained as theft and provides a
statutory definition for determining when such theft constitutes, and therefore is
punished, as grand theft. Under section 484g, even if no goods are obtained in any sixmonth
period, the use of an access card unlawfully obtained still constitutes theft,
punishable as petty theft. Given section 490.2’s recitation that petty theft will be defined
based on the value of goods obtained, notwithstanding any other definition of grand theft
in the law, we cannot accept the People’s contention that the definition of grand theft in
section 484g is exempted from the reach of section 490.2. (See People v. Romanowski
(2017) 2 Cal.5th 903, 908-909 [“We deny a phrase like ‘any other provision of law’ its
proper impact if we expect a penal statute—whether enacted by the Legislature or the
electorate—to further enumerate every provision of the Penal Code to which it is
relevant.”].)
Having concluded the definition of petty theft under section 490.2 is applicable
with respect to convictions under 484g, we turn to whether substantial evidence exists in
the record to support the conclusion appellant was statutorily ineligible for relief because
of the value of her criminal conduct. We find no such evidence. The record shows, from
the charging documents through the loss prevention reports, that appellant did not receive
any goods due to her use of the victim’s credit card on April 25, 1993. As such, the
record evidence is insufficient to support the trial court’s conclusion that appellant was
statutorily ineligible for relief on claims 3 and 4 because “each of those [convictions] was
at a value of more than [$]950.” The trial court’s determination appellant was not
statutorily eligible for resentencing was thus erroneous.
DISPOSITION
The order is reversed and the matter remanded for further proceedings consistent
with this opinion.
9
Based on the stipulation of the parties and pursuant to California Rules of Court,
rule 8.272(c)(1), the Clerk/Administrator is directed to issue the remittitur immediately.