Opinion
G056572
12-13-2019
THE PEOPLE, Plaintiff and Respondent, v. RYAN MURATORE, Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF1125) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ryan Muratore pleaded guilty in 2017 to felony charges of identity theft (Pen. Code, § 530.5, subd. (a); count 1), forgery (§ 470, subd. (d); count 3), possession of a forged instrument (§ 475, subd. (a); count 4), possession of a completed check with intent to defraud (§ 475, subd. (c); count 5), and to misdemeanor charges of possession of fictitious instruments (§ 476; count 2), second degree burglary (§§ 459, 460, subd. (b); count 6), and receiving stolen property (§ 496, subd. (a); count 7). He also admitted he was previously convicted of first degree burglary, a serious felony (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 16 months on count 1. The court imposed and stayed concurrent 16-month terms on counts 3, 4, and 5 and stayed 10-day county jail terms on the misdemeanor convictions in counts 2, 6, and 7. The court exercised its discretion and struck both the prior strike and prior prison term enhancements for purposes of sentencing. Defendant was awarded 480 days of custody credits.
All statutory references are to the Penal Code unless otherwise stated.
The court's minutes and the abstract of judgment indicate that the sentences in counts 2 through 7 were stayed pending successful completion of the sentence in count 1, but the legal basis for these stays is not indicated in either document. In the abstract of judgment, the "654 STAY" boxes are not checked.
In June 2018, defendant filed a petition for reduction of his eligible felony convictions to misdemeanors under section 1170.18 (Proposition 47 petition). The petition indicated defendant had completed his sentence and was requesting reduction of his felony convictions to misdemeanors under section 1170.18, subdivisions (f) and (g). The court, however, treated it as a petition for resentencing under subdivision (a) of section 1170.18 because defendant was still serving his sentence under community supervision. Following a hearing, the court denied the petition because defendant was charged and convicted of the felony offenses after Proposition 47's effective date. Defendant appealed.
On appeal, defendant contends the court erred by denying his Proposition 47 petition. He asserts Proposition 47, which took effect in 2014, reclassified the felony offenses to which he pleaded guilty in count 1, 3, 4, and 5 to misdemeanors, and therefore, the court should have granted his petition and reduced his felony convictions to misdemeanors. We disagree and affirm the court's order denying defendant's Proposition 47 petition.
DISCUSSION
After being approved by voters, Proposition 47 took effect on November 5, 2014. (People v. Lara (2019) 6 Cal.5th 1128, 1132 (Lara).) It reduced "many common theft- and drug-related offenses from felonies to misdemeanors for offenders who do not have prior convictions for specified violent or serious offenses." (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) Proposition 47 also made changes to forgery offenses, adding subdivision (b) to section 473. (People v. Gonzales (2018) 6 Cal.5th 44, 46.) While it reduced "forgery relating to a check" or other specified instruments to a misdemeanor where the value of the instrument "does not exceed nine hundred fifty dollars ($ 950)" (§ 473, subd. (b)), it indicated that this provision does not apply when the defendant commits a forgery "'in connection with'" identity theft and is convicted of both (Gonzales, at p. 56).
In addition to prospectively reducing certain offenses from felonies to misdemeanors, Proposition 47 added section 1170.18, which provides an opportunity for retroactive relief to defendants who were serving or had completed their felony sentences as of Proposition 47's effective date "for offenses now redefined as misdemeanors." (People v. DeHoyos, supra, 4 Cal.5th at p. 598.) Under section 1170.18, subdivision (a), defendants "who were serving felony sentences as of the measure's effective date" can petition for recall of their sentences and request resentencing of their eligible felony offenses to misdemeanors. (Lara, supra, 6 Cal.5th at pp. 1130-1131.) Defendants who had completed their felony sentences as of Proposition 47's effective date can file an application under subdivision (f) of section 1170.18 to have their eligible felony convictions redesignated as misdemeanors.
Recently, after briefing was completed in this case, our Supreme Court held that the resentencing provisions in section 1170.18 do not apply to a defendant who was charged or sentenced after Proposition 47 took effect. (Lara, supra, 6 Cal.5th at p. 1135.) Instead, defendants charged or sentenced after "Proposition 47's effective date are entitled to initial sentencing under Proposition 47's amended penalty provisions, without regard to the resentencing procedures" in section 1170.18. (Lara, at p. 1131; accord, People v. Gutierrez (2018) 20 Cal.App.5th 847, 855.) Thus, the timing of a defendant's conviction and sentence in relation to Proposition 47's effective date determines whether a defendant can obtain relief under section 1170.18.
Here, defendant pleaded guilty to felony charges in 2017, more than two years after the effective date of Proposition 47, and then more than a year later in 2018, he sought to reduce those felony convictions to misdemeanors by filing a petition under section 1170.18. Because defendant was charged, convicted, and sentenced after Proposition 47 took effect, the resentencing provisions in section 1170.18, either subdivision (a) or (f), do not apply to him. (Lara, supra, 6 Cal.5th at p. 1135; People v. Gutierrez, supra, 20 Cal.App.5th at p. 855.) Section 1170.18 does not permit a defendant to plead guilty to a felony after November 5, 2014, and then petition to reduce the conviction to a misdemeanor. Thus, we conclude defendant is not entitled to relief under section 1170.18.
Defendant requests that if we conclude he is not entitled to relief under section 1170.18 that we "provide guidance to everyone on just how a person wrongly sentenced as a felon after the passage of Proposition 47 can procedurally seek to remedy that error." We decline defendant's invitation as any such guidance would be an advisory opinion. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084 [generally, appellate courts do not issue advisory opinions].)
We note it is questionable whether defendant was "wrongly sentenced as a felon after the passage of Proposition 47." The limited record we have in this appeal suggests the court and parties were cognizant of Proposition 47 at the time of defendant's plea, as count 2, which was originally charged as a felony, was reduced to a misdemeanor prior to defendant pleading guilty. Defendant was convicted of both identity theft (count 1) and forgery offenses (counts 3, 4, and 5) and the factual basis for his guilty plea suggests that he committed the identity theft in connection with the forgery offenses, thus rendering his forgery convictions ineligible for reduction under Proposition 47. (§ 473, subd. (b); People v. Gonzalez, supra, 6 Cal.5th at p. 56.) Lastly, it is unclear whether identity theft in violation of section 530.5, subdivision (a) (count 1) can be reclassified as a misdemeanor under Proposition 47 as the issue has produced conflicting opinions among the Courts of Appeal and is currently pending before the Supreme Court. (See People v. Brayton (2018) 25 Cal.App.5th 734 [concluding defendant's felony identity theft conviction qualifies for reduction to misdemeanor shoplifting under Proposition 47], review granted Oct. 10, 2018, S251122; People v. Jimenez (2018) 22 Cal.App.5th 1282, 1292-1293 [concluding court properly reduced defendant's felony identity theft convictions to misdemeanor shoplifting], review granted July 25, 2018, S249397; People v. Sanders (2018) 22 Cal.App.5th 397 [concluding court properly denied defendant's petition to reclassify her identity theft convictions as misdemeanor petty thefts], review granted July 25, 2018, S248775.)
Accordingly, we affirm the court's order denying defendant's Proposition 47 petition.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.