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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Joshua HARRELL, Defendant and Appellant.


Decided: August 10, 2020

Counsel for Appellant: Carlo Andreani, San Francisco Counsel for Respondents: Xavier Becerra, Attorney General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Seth K. Schalit, Supervising Deputy Attorney General; Lisa Ashley Ott, Deputy Attorney General


A jury convicted Joshua Harrell of three felony counts of fraudulent possession of the personal identification of another after having been previously convicted of this offense. (Pen. Code, § 530.5, subd. (c)(2) (section 530.5(c)(2)); all statutory references are to the Penal Code). Harrell makes three claims on appeal: (1) the judgment must be reversed because of the erroneous denial of his motion to suppress evidence; (2) his convictions must be reclassified as misdemeanors under section 490.2; and (3) four prior prison term enhancements must be stricken due to an amendment to section 667.5, subdivision (b) (section 667.5(b)).

After this court filed a nonpublished opinion accepting Harrell's contention that his convictions must be reclassified as misdemeanors, the California Supreme Court granted the People's petition for review. (People v. Harrell, Feb. 11, 2020, No. S259968), Supreme Ct. Mins., Feb. 11, 2020 [2020 Cal. Lexis 1112].) The court then decided People v. Jimenez (2020) 9 Cal.5th 53, 259 Cal.Rptr.3d 233, 459 P.3d 33 (Jimenez) and transferred Harrell's case back to this court with directions to vacate our prior decision and reconsider the cause in light of Jimenez.

In the published portion of the present opinion, we now reject Harrell's contention that his convictions for felony fraudulent possession of personal identifying information must be reclassified under section 490.2 as misdemeanors. Unpublished portions of the opinion affirm the denial of Harrell's suppression motion and conclude his section 667.5(b) enhancements must be stricken.


In March 2018, Harrell was charged by felony complaint with three counts of violating section 530.5(c)(2). His motion to suppress evidence pursuant to section 1538.5, arguing that he was subjected to an unlawful detention, search, and arrest, was heard concurrently with the preliminary hearing on June 18, 2018.

At the June 18 hearing, Fairfield Police Officer Kevin Anderson testified that he encountered Harrell shortly before 3:00 a.m. on November 24, 2017. Anderson was patrolling a residential neighborhood when he noticed a gold BMW parked on the street that did not have license plates, which was a violation of the Vehicle Code. He approached the car so he could obtain the VIN and noticed through the windows that Harrell was asleep in the driver's seat, with “a lot of miscellaneous property spread out throughout the car.” Anderson attempted to wake Harrell by speaking through the window, which was rolled down about five inches, and by knocking on the window with his flashlight. When Harrell finally woke up, Anderson identified himself as police and asked Harrell to roll the window down or open the door so it would be easier to talk. Harrell did not comply with that request or with the officer's request to see identification. He told Anderson that he did not want to talk and did not want to get out of the car. Anderson then asked for Harrell's name and date of birth, which Harrell provided.

Anderson testified that he used the information provided by Harrell to run a record check through Fairfield Police dispatch and was advised that Harrell was on postrelease community supervision (PRCS). Accordingly, Anderson “removed [Harrell] from the car to conduct a PRCS compliance check of the vehicle.” Anderson found notebooks and paperwork on the seats and floorboard of the car. The notebooks contained personal identifying information for approximately 20 people. After completing the car search, Anderson read Harrell his rights and placed him under arrest. Subsequently, Anderson contacted several people who were referenced in the notebooks found in the BMW, and they reported that Harrell did not have permission to have their personal information.

After Anderson completed his testimony, the People submitted documentary evidence regarding Harrell's prior conviction for identity theft, and the magistrate took judicial notice of the case in which Harrell had been placed on PRCS. The defense did not present evidence, but argued that the People failed to carry their burden of producing independent evidence establishing that Harrell was on PRCS or subject to a search condition. Defense counsel further argued that the detention was unlawful because Harrell was not doing anything wrong and was not obligated to engage with the officer even if he was on PRCS. Finally, defense counsel argued that the search of Harrell's phone was not justified because the People did not produce evidence regarding the scope of the PRCS search clause.

The magistrate denied Harrell's suppression motion, finding: “The initial contact was supported by reasonable suspicion. The arrest was supported by probable cause. The detention was not unduly prolonged.” The magistrate also found sufficient evidence to support the identity theft charges and held Harrell to answer on the complaint.

In the superior court, Harrell filed a renewed motion to suppress evidence. On August 13, 2018, the court denied Harrell's motion, finding a sufficient factual basis for the magistrate's conclusions. Thereafter, the case proceeded to trial, where the jury found Harrell guilty of three felony counts of acquiring or keeping the personal identifying information of K.H., T.S. and C.W. after having previously suffered a conviction for this same crime. (§ 530.5(c)(2).) The trial court chose the upper term on count one as the base term and ran the other two terms consecutive; found that Harrell suffered a prior strike conviction and four prior prison terms; and sentenced him to an aggregate term of 12 years eight months in prison.



III. Harrell's Felony Convictions May Not Be Reclassified as Theft Offenses

Harrell contends that Proposition 47 requires this court to reclassify his felony convictions as misdemeanor thefts under section 490.2. Proposition 47 “reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new ․ section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less.” (People v. Page (2017) 3 Cal.5th 1175, 1179, 225 Cal.Rptr.3d 786, 406 P.3d 319.)

Here, Harrell's felony convictions were for violating section 530.5(c)(2), which we will conclude is not a theft offense. Section 530.5(c)(2) states: “Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information ․ of another person, and who has previously been convicted of a violation of this section, ․ shall be punished” by imprisonment and/or a fine. (Italics added.) The crime is a “wobbler,” in that it can be punished “by imprisonment in a county jail not to exceed one year, or ․ by imprisonment pursuant to subdivision (h) of Section 1170.” (§ 530.5(c)(2).) Harrell contends that his violations of this law must be reclassified pursuant to Proposition 47 as misdemeanors because they are theft offenses, and there is no evidence that the value of the personal identifying information that Harrell acquired or retained exceeded $950.

When we filed our prior opinion in this case, courts disagreed about whether a violation of section 530.5, subdivision (c) (section 530.5(c)) is a theft offense that must be treated as a misdemeanor when the value of the personal identifying information is not shown to exceed $950. (Compare People v. Chatman (2019) 33 Cal.App.5th 60, 65–69, 244 Cal.Rptr.3d 672, review granted June 26, 2019, S255235 [a conviction under § 530.5(c)(2) is a theft offense] with People v. Weir (2019) 33 Cal.App.5th 868, 245 Cal.Rptr.3d 387 (Weir), review granted June 26, 2019, S255212 [a violation of § 530.5(c) is a nontheft offense].) Until the Supreme Court resolved the conflict, we elected to follow our division's prior decision in Chatman, reclassifying Harrell's crimes as misdemeanor thefts. The Supreme Court has now directed us to reconsider our conclusion in light of Jimenez.

In Jimenez, supra, 9 Cal.5th 53, 259 Cal.Rptr.3d 233, 459 P.3d 33, the defendant was tried on charges that he committed two felony violations of section 530.5, subdivision (a) (section 530.5(a)), a closely related crime. Section 530.5(a) provides: “Every person who willfully obtains personal identifying information ․ of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense ․” (Italics added.) The prosecution presented evidence that Mr. Jimenez went into a commercial check-cashing store on two occasions and cashed a check for an amount under $950. Neither check had been issued by the payor, nor did the payor give Jimenez permission to cash them. (Jimenez, at p. 59, 259 Cal.Rptr.3d 233, 459 P.3d 33.) The jury found Jimenez guilty of both felony charges, but the trial court reclassified the crimes as shoplifting misdemeanors. Section 459.5, which was enacted pursuant to Proposition 47, defines shoplifting as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed” $950. (§ 459.5, subd. (a).) This statute also precludes acts that can be charged as shoplifting from being charged as burglary or theft of the same property. (Id., subd. (b).) The judgment reclassifying Jimenez’s convictions as misdemeanor shoplifting was affirmed on appeal but reversed by our Supreme Court.

Jimenez holds that misuse of identifying information in violation of section 530.5(a) cannot be reclassified as shoplifting because section 530.5(a) is not a theft offense. (Jimenez, supra, 9 Cal.5th at pp. 58–59, 259 Cal.Rptr.3d 233, 459 P.3d 33.) Jimenez outlines several reasons that the crime is not a theft offense, even though it is sometimes referred to as “identity theft.” First, the statutory language does not use the term “theft” or contain requirements that are central to the crime of theft. (Jimenez, supra, 9 Cal.5th at p. 63, 259 Cal.Rptr.3d 233, 459 P.3d 33.) For example, it does not require an intent permanently to deprive the victim of any form of property. Indeed, “the offense of misuse of personal identifying information can be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it.” (Ibid.) Simply stated, section 530.5(a) can be violated whether or not the victim's identifying information has been stolen.

The gravamen of section 530.5 is directed at unlawful use of a person's identity, not at unlawful taking of property. (Jimenez, supra, 9 Cal.5th. at p. 64, 259 Cal.Rptr.3d 233, 459 P.3d 33.) The historical development of this statute and its many amendments reflect legislative efforts to address various “ ‘ripples of harm’ that ‘flow from the initial misappropriation’ of identifying information—harm that often goes ‘well beyond the actual property obtained.’ ” (Id. at p. 64, 259 Cal.Rptr.3d 233, 459 P.3d 33 [quoting Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2886 (2005–2006 Reg. Sess.) as amended May 26, 2006, p. P.) A felony violation of the statute hinges on the seriousness of the crime and its consequences for the victim, rather than the type or value of property involved. (Jimenez, at p. 64, 259 Cal.Rptr.3d 233, 459 P.3d 33, citing Weir, supra, 33 Cal.App.5th at p. 875, rev. granted.) And, section 530.5 appears in a Penal Code chapter entitled “ ‘False Personation and Cheats,’ ” rather than in the chapter entitled “ ‘Larceny.’ ” (Jimenez, at p. 64, 259 Cal.Rptr.3d 233, 459 P.3d 33.)

Finally, the new theft offense of shoplifting is “ill suited to punish misuse of identifying information” because these two laws are fundamentally different, reflecting different legislative rationales. (Jimenez, supra, 9 Cal.5th at p. 65, 259 Cal.Rptr.3d 233, 459 P.3d 33.) The rationale for misdemeanor shoplifting is that culpability for an unlawful taking of property should reflect degrees of danger that depend on the time of day, nature of the entry, and value of the property involved. By contrast, section 530.5 “prohibits a person from ‘acquiring, retaining, or using information, rather than taking it,’—itself a fair indicator that the Legislature was concerned with use, not theft. [Citation.] And on its face, it addresses harms reaching well beyond theft, implicating issues of privacy and control of personal data.” (Jimenez, at p. 65, 259 Cal.Rptr.3d 233, 459 P.3d 33.)

In the present case, Harrell was convicted under section 530(c), a provision directed at unlawfully possessing (acquiring or retaining) personal identifying information, unlike the Jimenez defendant who was convicted for misusing such information. Contending that Jimenez does not preclude reclassifying his offenses as thefts, Harrell argues that the Jimenez court limited its holding to section 530.5(a), and that the court's reasoning does not extend to section 530.5(c), which is a fundamentally different crime. We disagree.

Jimenez compels the conclusion that section 530.5(c) is not a theft offense. Beginning with its statutory language, section 530.5(c) contains no reference to theft, nor do its elements align with a quintessential theft offense. Like section 530.5(a), this provision can be violated absent an intent to commit theft and whether or not the victim's information was actually stolen. Further, section 530.5(c) is an integral part of the statutory scheme that targets social harms flowing from the misuse of a person's identity, as opposed to the unlawful taking of property. Operating outside the law of theft, section 530.5 addresses unique concerns attendant to misuse of another person's identity. Subdivisions (a) and (c) of this statute function in tandem to achieve this purpose.

Insisting that Jimenez does not preclude reclassification of his crimes, Harrell hangs his hat on two flawed arguments. First, Harrell argues that Jimenez does not categorically foreclose defendants convicted under section 530.5 from obtaining relief under Proposition 47. As support for this view, Harrell cites section 530.5, subdivision (e) (section 530.5(e)), which provides that a person “who commits mail theft, as defined in Section 1708 of Title 18 of the United States Code, is guilty of a public offense.” But section 530.5(e) is not at issue in this appeal, and Harrell's assumption that section 530.5(e) is a theft offense does not justify differentiating section 530.5(c) from section 530.5(a) in this regard. Under the relevant criteria outlined in Jimenez, subdivisions (a) and (c) of section 530.5 are both nontheft offenses, implemented by the Legislature as part of a comprehensive solution to problems arising from misuse of another person's identity.

Harrell's second contention is that section 530.5(c) must be characterized as a theft under the reasoning of People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 (Romanowski). That case considered the effect of Proposition 47 on a felony conviction for violating section 484e, subdivision (d) (section 484e(d)), which criminalizes the theft of access card information. Section 484e(d) states: “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.) Concluding that section 484e(d) is a theft offense under Proposition 47, the Romanowski court found, “[i]n just about every way available, the Legislature made clear that theft of access card information is a theft crime.” (Romanowski, at p. 908, 215 Cal.Rptr.3d 758, 391 P.3d 633.) For example, the statutory language describes this crime as “ ‘grand theft,’ ” and section 484e is located in a chapter of the Penal Code entitled “ ‘Larceny.’ ” (Romanowski, at p. 908.) Furthermore, section 484e(d) is defined “in the way the Penal Code defines ‘theft’ ” because this statute cannot be violated unless the victim's access card information is acquired or retained “ ‘without the cardholder's or issuer's consent.’ ” (Romanowski, at p. 912, 215 Cal.Rptr.3d 758, 391 P.3d 633.)

As the Jimenez court observed, the same factors that indicate section 484e(d) is a theft offense establish that section 530.5(a) is not. (Jimenez, supra, 9 Cal.5th at p. 65, 67, 259 Cal.Rptr.3d 233, 459 P.3d 33.) This observation applies as well to section 530.5(c), which also does not use the term theft, is not designated as a larceny in the Penal Code, and is not defined the way the Penal Code defines theft. We acknowledge that section 530.5(c), like section 484e(d), criminalizes one who “acquires or retains” information with fraudulent intent, but observe that section 530.5(c) does not include the additional requirement in section 484e(d) that this information be acquired without consent. Romanowski understood “without ․ consent” ’ as a “crucial element” confirming “that theft of access card information is a ‘theft’ crime in the way the Penal Code defines ‘theft.’ ” (Romanowski, supra, 2 Cal.5th at p. 912, 215 Cal.Rptr.3d 758, 391 P.3d 633.) Romanowski thus reinforces our conclusion that section 530.5(c) is not subject to reclassification as a misdemeanor under the reasoning of Jimenez.


The judgment is affirmed, except that the section 667.5(b) sentence enhancements are stricken.


Streeter, Acting P. J., and Brown, J., concurred.Appellant's petitions for review by the Supreme Court were denied October 21, 2020, S264030.

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