Filed 12/11/17 P. v. Ochoa CA2/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,

Plaintiff and Respondent,

v.

GILBERT OCHOA,

Defendant and Appellant.
B265361

(Los Angeles County
Super. Ct. No. GA095685)

APPEAL from an order of the Superior Court of Los Angeles County. Dorothy L. Shubin, Judge. Reversed and remanded with directions.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Gilbert Ochoa appealed from the trial court’s denial of his motion to recall his sentence for reduction to a misdemeanor pursuant to Penal Code sections 1170.18 and 490.2, which were enacted pursuant to Proposition 47 in 2014. We affirmed in an opinion filed on January 18, 2017. We held that section 490.2 did not apply to the offense for which Ochoa was convicted, i.e., acquiring or retaining possession of another person’s access card account information with the intent to use it fraudulently in violation of section 484e, subdivision (d). The California Supreme Court granted review and held the case along with a number of other Court of Appeal decisions that had taken different approaches to this issue.
On March 27, 2017, our Supreme Court decided People v. Romanowski (2017) 2 Cal.5th 903 (2017) (Romanowski). Following that decision, the court remanded the case to us for reconsideration in light of its opinion. In light of the court’s reasoning and holding in Romanowski, we now reverse and remand to the superior court to determine if Ochoa should be resentenced to a misdemeanor under the rationale of Romanowski and the requirements of section 490.2, subdivision (a).
BACKGROUND
Ochoa was charged in a one count information with felony theft in violation of section 484e, subdivision (d). The charge was based on Ochoa’s possession of a Citibank credit card belonging to a person he did not know. Ochoa presented the card to police officers as identification. Ochoa later admitted to the officers that he had tried unsuccessfully to use the credit card at several different locations. Evidence at the preliminary hearing showed that the credit card in Ochoa’s possession was a replacement card for a person who still had the unexpired original card in his possession and did not know that the replacement card was missing.
Ochoa filed a motion to set aside the charged count under section 995 on the ground that there was insufficient evidence introduced at the preliminary hearing for Ochoa to be charged with a felony. The motion relied on section 490.2 in arguing that a violation of section 484e, subdivision (d) may only be punished as a felony if there is evidence of a loss in excess of $950, and there was no such evidence presented at the preliminary hearing against Ochoa.
The trial court denied the motion, concluding that section 490.2 did not apply to a felony under section 484e, subdivision (d). However, the court stated that it would consider a renewed motion based on any new case law. After the trial court denied the section 995 motion, Ochoa entered a no contest plea to the felony count in the information and received a sentence of 16 months in county jail.
On June 9, 2015, Ochoa filed a motion to recall sentence under section 1170, subdivision (d). The motion requested that the trial court recall Ochoa’s sentence and resentence him on count 1 as a misdemeanor pursuant to section 1170.18, “in conjunction with Penal Code section 490.2.” On June 18, 2015, the trial court denied the motion on the same ground that it had denied the section 995 motion. Ochoa filed a timely notice of appeal.
DISCUSSION
Section 484e, subdivision (d) provides that “[e]very 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.” (§ 484e, subd. (d).) In Romanowski, our Supreme Court held that the offense this subdivision defines is one of the crimes eligible for reduced punishment under Proposition 47. (Romanowski, supra, 2 Cal.5th at pp. 905–906.) The court concluded that, by its terms, section 484e, subdivision (d) is one of the “ ‘other provision[s] of law defining grand theft’ ” that is included within the scope of section 490.2. (Id. at p. 908.) The court also concluded that section 484e, subdivision (d) defines an offense involving “ ‘obtaining . . . property by theft’ ” within the meaning of section 490.2. (Id. at pp. 911–912.)
The court further held that the value of the unlawfully acquired or unlawfully retained access card account information involved in a violation of section 484e, subdivision (d) must be determined using the “ ‘reasonable and fair market value’ ” test of section 484, subdivision (a). (Romanowski, supra, 2 Cal.5th at p. 906.) That value is set by determining “how much stolen access card information would sell for.” (Id. at p. 915.) Such a determination can include considering the price of access card information in an illegal market. (Id. at pp. 906, 915–916.) Only in cases “where stolen property would command no value on any market (legal or illegal) can courts presume that the value of stolen access information is de minimis.” (Id. at p. 915.) The “ultimate burden of proving section 1170.18 eligibility lies with the petitioner.” (Id. at p. 916.)
In this case, the trial court denied Ochoa’s motion to recall his sentence on the ground that his conviction under section 484e, subdivision (d) was ineligible for recall under sections 1170.18 and 490.2 as a matter of law. It is therefore appropriate to remand the case to the trial court for a determination of the reasonable and fair market value of the access card information under the criteria discussed in Romanowski.
In Romanowski, the court observed that, “[i]n some cases, the uncontested information in the petition and record of conviction may be enough” for a petitioner to establish eligibility to recall his or her sentence under section 1170.18. (Romanowski, supra, 2 Cal.5th at p. 916.) Ochoa cites this language in arguing that the record of conviction here shows that the value of the access card information in Ochoa’s possession was de minimis. Ochoa argues that the credit card the police obtained from him had no value, because it was a replacement card that the owner did not know was missing and therefore could not have activated. Ochoa also told the police that he had tried to use the card but was unsuccessful.
Ochoa’s argument is based on record evidence concerning the value of the property that could or could not be obtained by using the access card information. That evidence might be relevant to the reasonable and fair market value of the access card information, and might ultimately be persuasive here, depending upon what other evidence exists concerning the value of the information. But the court’s opinion in Romanowski makes it clear that the value of the access card information itself is not determined by the particular goods or services that a defendant acquires by using that information. (Romanowski, supra, 2 Cal.5th at p. 914 [“the $950 threshold for theft of access card information must reflect a reasonable approximation of the stolen information’s value, rather than the value of what (if anything) a defendant obtained using that information”].) The value of the information is set by the market for that information, whether legal or illegal. Thus, the “information in the petition and the record of conviction” here relating to Ochoa’s attempts to use the card does not necessarily establish that the access card information that was wrongfully in his possession “would command no value on any market.” (Id. at pp. 915–916.)
The parties have not yet had an opportunity to identify, and the trial court has not yet considered, any evidence that might exist concerning a market for the particular access card information at issue here. We therefore decline to set a value on that information in the first instance as a matter of law.
DISPOSITION
The trial court’s order denying Ochoa’s motion to recall his sentence is reversed. The case is remanded for the trial court to determine if the value of the access card information that was unlawfully in Ochoa’s possession was $950 or less. If the court finds that the value was $950 or less, and Ochoa is still serving a felony sentence pursuant to his plea in this case, the court shall resentence him to a misdemeanor, unless the court finds that he would pose an unreasonable risk of danger under Penal Code section 1170.18, subdivision (b). If the court finds the value was $950 or less, and Ochoa is no longer serving his felony sentence in this case, the court shall reclassify his conviction as a misdemeanor under section 1170.18, subdivisions (f)–(h).
NOT TO BE PUBLISHED.



LUI, J.
We concur:



ROTHSCHILD, P. J.



CHANEY, J.