Opinion
B263169
07-26-2017
THE PEOPLE, Plaintiff and Respondent, v. SANDRA MADRIGAL RAMIREZ, Defendant and Appellant.
Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. KA058017 & KA061048) APPEAL from a judgment of the Superior Court of Los Angeles County. Steven P. Sanora, Judge. Reversed and remanded with directions. Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Sandra Madrigal Ramirez (defendant) filed an application to have her 2002 felony conviction for receiving stolen property (Pen. Code, § 496, subd. (a)) and her 2003 felony convictions for second degree commercial burglary (§ 459) and possession of a controlled substance (Health & Saf. Code, § 11377) redesignated as misdemeanors pursuant to Proposition 47 (§ 1170.18, subd. (f)). The trial court granted the application as to the drug conviction, but declined to redesignate the receiving stolen property and second degree commercial burglary convictions as misdemeanors.
Unless otherwise indicated, all further statutory references are to the Penal Code. --------
In our original opinion filed December 17, 2015, we reversed the trial court's judgment denying redesignation of the receiving stolen property conviction and affirmed the court's judgment denying redesignation of the second degree commercial burglary conviction. The California Supreme Court granted review on March 9, 2016, and, in an order filed June 28, 2017, transferred the case back to this court with directions to vacate our prior decision and reconsider in light of People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales).
It is therefore ordered that the previous opinion and decision filed in this case is vacated. Upon reconsideration in light of Gonzales, supra, 2 Cal.5th 858, we conclude that the trial court erred in determining that defendant's receiving stolen property and second degree commercial burglary convictions were ineligible for redesignation. We accordingly remand the matters with directions to redesignate both convictions as misdemeanor offenses.
FACTS AND PROCEDURAL BACKGROUND
In July 2002, defendant possessed a backpack containing check drafts, blank checks, social security cards, California driver's licenses, debit cards, and financial statements belonging to several people who did not authorize her to possess those items. The People charged defendant with five separate felony counts of receiving stolen property. (§ 496, subd. (a).) Four of those counts pertained to items belonging to specific individuals, and the fifth count pertained to the remaining "bank statements, checks, credit cards and social security cards." Defendant entered a plea to the first count involving the "checkbook, checks and papers of Donnetta Grays," which encompassed a "VOID" check for $106 and a blank check. As part of defendant's plea bargain, the court dismissed the remaining counts. The court placed defendant on three years' probation and imposed a 90-day jail sentence.
In March 2003, defendant possessed methamphetamine. She also walked into a Top Dollar 99 Cent Store and an Exxon Mobil gas station with credit cards belonging to someone else, and used them to purchase $60.53 and $56.13 in merchandise, respectively. The People charged her with (1) possessing a controlled substance (Health & Saf. Code, § 11377), (2) second degree commercial burglary (§ 459), and forgery (§ 484f, subd. (b)) involving the Top Dollar 99 Cent Store, (3) second degree commercial burglary (§ 459) and forgery (§ 484f, subd. (b)) involving the Exxon Mobil gas station, and (4) giving false information to a police officer (§ 148.9, subd. (a)). Defendant entered a plea to possessing a controlled substance and to the second degree commercial burglary count associated with the Exxon Mobil gas station purchase. As part of her plea bargain, the court dismissed the remaining counts. Defendant also admitted she was in violation of her probation in the earlier case. The court then imposed a 16-month prison sentence on the drug possession charge and imposed concurrent 16-month sentences on the second degree burglary charge and the probation violation.
In 2015, defendant applied to the trial court to have all three convictions redesignated as misdemeanors pursuant to Proposition 47 (§ 1170.18). The court granted her application as to the controlled substance conviction, but denied it as to the remaining two convictions. With respect to the receiving stolen property conviction, the court reasoned that the "collective amount" of the stolen property, which included a stolen check for $1332.50, exceeded the $950 limit that defines the upper limit of misdemeanor receipt of stolen property under Proposition 47. With respect to the second degree commercial burglary conviction, the court reasoned that defendant's conduct would have been charged as a forgery today rather than a commercial burglary, rendering irrelevant the $950 threshold for felony commercial burglary.
Defendant timely appealed.
DISCUSSION
Proposition 47, the Safe Neighborhoods and Schools Act, reduced several felony offenses to misdemeanors—namely, those set forth in Health and Safety Code sections 11350, 11357 and 11377 and Penal Code sections 459.5, 473, 476a, 490.2, 496, and 666. (§ 1170.18, subd. (a).) As pertinent here, Proposition 47 also authorizes persons who have been convicted of those enumerated offenses and who have completed their sentences to apply to the trial court "to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) That applicant bears "'the initial burden of establishing [her] eligibility for resentencing . . . .'" (People v. Sherow (2015) 239 Cal.App.4th 875, 879.)
Defendant argues that the trial court erred in denying her application to redesignate her receiving stolen property and second degree commercial burglary convictions as misdemeanors. To the extent her challenges require us to construe Proposition 47, we engage in de novo review (People v. Tran (2015) 61 Cal.4th 1160, 1166); to the extent we must evaluate her evidentiary showing, we review for substantial evidence (People v. Smith (2015) 61 Cal.4th 18, 39).
I. Receiving Stolen Property Conviction
Proposition 47 amended section 496 to classify, with exceptions not pertinent here, the receipt of stolen property as a misdemeanor "if the value of the property does not exceed" $950. (§ 496, subd. (a).) Defendant entered a plea to receiving the stolen property of Donnetta Grays, which consisted of a check for $106 marked "VOID" and a blank check. Because the value of this property does not exceed $950, defendant appears to be eligible to have this felony redesignated as a misdemeanor. The People resist this conclusion, arguing that the trial court was correct in aggregating the amount of all of stolen property that defendant possessed in her backpack, including the property underlying counts that were dismissed.
In People v. Harvey (1979) 25 Cal.3d 754 (Harvey), our Supreme Court held that it is "improper and unfair to permit the sentencing court to consider any of the facts underlying [a] dismissed count . . . for purposes of aggravating or enhancing [a] defendant's sentence." (Id. at p. 758.) "Implicit in . . . a plea bargain [dismissing certain counts]," the court reasoned, "is the understanding (in the absence of any contrary agreement) that [the] defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, [any] dismissed count." (Ibid.) Courts have subsequently extended this rule to prohibit consideration of dismissed counts when fixing the conditions of probation (People v. Martin (2010) 51 Cal.4th 75, 81-82 (Martin); People v. Beagle (2004) 125 Cal.App.4th 415, 417-418, 421 (Beagle)) and, more relevant here, when deciding whether to recall a third strike sentence under the recently enacted Proposition 36 (§ 1170.126) (People v. Berry (2015) 235 Cal.App.4th 1417, 1425). This principle appears to prohibit a trial court from adding up the value of stolen property underlying dismissed counts.
The People nevertheless proffer two reasons why Harvey, supra, 25 Cal.3d 754 does not apply. First, they argue that Harvey itself allows a court to consider the conduct underlying a dismissed count if that conduct is "transactionally related to the offense to which the defendant" entered a plea. (Id. at p. 758, italics omitted.) Conduct underlying dismissed counts is "transactionally related" when it facilitates the criminal conduct to which the defendant entered a plea. (See, e.g., People v. Gaskill (1980) 110 Cal.App.3d 1, 3-4 [weapons transactionally related to kidnapping, when brandished to facilitate kidnapping]; People v. Guevara (1979) 88 Cal.App.3d 86, 92-93 [same]; People v. Bradford (1995) 38 Cal.App.4th 1733, 1739 [loaded shotguns transactionally related to cultivation of marijuana, when used to protect drugs]; cf. Martin, supra, 51 Cal.4th at pp. 81-82 [two robberies separate in time and place not transactionally related].) However, a defendant's simultaneous possession of multiple items does not by itself render them transactionally related. (See, e.g., People v. Berry, supra, 235 Cal.App.4th at pp. 1421-1422, 1426 [possession of firearm not transactionally related to simultaneous possession of fraudulent check and forged driver's license]; Beagle, supra, 125 Cal.App.4th at pp. 417-418, 421-422 [possession of nunchakus and drugs in different parts of house; not transactionally related]; People v. Berry (1981) 117 Cal.App.3d 184, 197 [possession of gun not transactionally related to possession of vehicle absent showing that "defendant used the pistol to obtain or retain possession of the vehicle"].) Because the People have not otherwise demonstrated how defendant's receipt of the other people's stolen documents facilitated or aided her receipt of the stolen documents underlying her plea, these other documents are not "transactionally related" and may not be considered in determining her eligibility for relief under Proposition 47. (Accord, People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 [declining to aggregate amounts of checks forged when defendant pled to seven forgery counts].)
Second, the People contend that Harvey's restrictions on the use of evidence may be waived and that defendant waived those restrictions as part of her plea bargain. The People are correct on the law (see Harvey, supra, 25 Cal.3d at p. 768 [noting how "contrary agreement" may authorize consideration of dismissed counts]), but incorrect on the facts. Defendant did make a so-called "Harvey waiver," but did so solely as to restitution. This limited waiver did not dispel Harvey's protections for any and all purposes.
Because the trial court erred in considering the value of the stolen property underlying the dismissed counts, and because the value of the stolen property underlying defendant's conviction was less than $950, defendant is entitled to have this offense redesignated as a misdemeanor.
II. Second Degree Commercial Burglary Conviction
Proposition 47 also added section 459.5, which creates a new crime of "shoplifting" and designates it as a misdemeanor. (§ 459.5.) In pertinent part, section 459.5 provides: "Notwithstanding Section 459, shoplifting is defined 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).) Because Proposition 47 entitles a person to relief if she "would have been guilty of a misdemeanor . . . had [Proposition 47] been in effect at the time of the offense" (§ 1170.18, subd. (f)), defendant's entitlement to relief as to her second degree commercial burglary conviction under section 459 turns on whether that burglary "would have been" treated as the misdemeanor crime of shoplifting. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449 [so holding]; People v. Contreras (2015) 237 Cal.App.4th 868, 892 [same].)
This question is resolved by our Supreme Court's recent decision in Gonzalez, supra, 2 Cal.5th 858. There, the Court held that a "defendant's act of entering a bank to cash a stolen check for less than $950 . . . constitutes shoplifting." (Id. at p. 862.) In reaching this holding, the Court reasoned that section 490a had consolidated all theft offenses and that section 490a's consolidation applied not only to traditional burglary under section 459 but also "shoplifting" under section 459.5. (Id. at pp. 865-875.) Gonzalez's reasoning and its holding applies with equal force here, where defendant's second degree commercial burglary conviction is premised upon her walking into an Exxon Mobile gas station to use someone else's credit card to purchase $56.13 in merchandise. Accordingly, her second degree commercial burglary conviction is eligible for redesignation under Proposition 47.
DISPOSITION
We reverse the trial court's judgment denying redesignation of the receiving stolen property conviction in No. KA058017 as a misdemeanor, and remand the matter with directions to redesignate that conviction as a misdemeanor offense. We also reverse the trial court's judgment denying redesignation of the second degree commercial burglary conviction in case No. KA061048, and remand the matter with directions to redesignate that conviction as a misdemeanor shoplifting offense.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
CHAVEZ