Opinion
F079914
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID LUCIO MEZA, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Erin Doering, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F19901813)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant David Lucio Meza was found guilty of grand theft and two counts of identity theft. He admitted having three prison priors within the meaning of Penal Code section 667.5, subdivision (b). Meza contends the evidence is insufficient to establish that the value of the property stolen exceeded $950. He also contends that Senate Bill No. 136 (Senate Bill 136) applies to his case and the section 667.5 enhancements must therefore be stricken. The People concede both issues.
All statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL SUMMARY
The evening of March 7, 2019, the victim picked up dinner for her family and returned to the motel where they were staying for the night. Her purse was hanging from her arm and she carried soda bottles and food boxes in her hands. As she closed the door to her car with her foot, a man came running around a car parked next to hers. The man ran straight into her and she fell to the ground, dropping all the items she had been carrying.
As the victim tried to stand up, the man grabbed her purse and ran away. The purse contained her wallet with credit cards, sunglasses, a model S5 or S6 iPhone, and " 'odds and ends.' "
The victim ran to her motel room to check on her children and fiancé. They then checked with the motel office to see if there were any surveillance cameras; there were none. Within about 15 minutes of the incident in the motel parking lot, her fiancé's cell phone began receiving alerts that her credit cards were being used.
The alerts showed that one card was used twice at Walmart; the two transactions totaled $246.22. Another transaction was made on her PayPal account for $45 at the gas station across the street from the motel. The victim testified she had purchased the iPhone for $800.
Meza was charged with robbery, grand theft, and two counts of identity theft. It also was alleged that he had four prison priors.
The victim identified Meza as the man who stole her purse.
The jury found Meza guilty of grand theft and the two identity theft charges; they acquitted on the robbery charge. In a bifurcated proceeding, Meza admitted three of the prison priors and the prosecutor dismissed the fourth. At sentencing, the trial court imposed an aggregate term of seven years four months. Meza filed a timely notice of appeal.
DISCUSSION
Meza contends the evidence is insufficient to establish that the value of the property stolen exceeded $950. He also contends that Senate Bill 136 applies to his case and the section 667.5 enhancements must therefore be stricken. The People concede both issues.
I. Sufficiency of the Evidence
In assessing a claim of insufficiency of the evidence, we review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence encompasses circumstantial evidence and reasonable inferences based on that evidence. (People v. Pierce (1979) 24 Cal.3d 199, 210.) " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933.)
Meza contends, and the People concede, the evidence is insufficient to establish the value of the stolen items exceeded $950. A defendant commits grand theft if the value of the property taken exceeds $950. (§ 487, subd. (a).) Generally, the valuation of property in the context of theft offenses is the fair market value of the property, determined by the highest price the property would reasonably have been sold for in the open market at the time of and in the general location of the theft. (§ 484, subd. (a); People v. Romanowski (2017) 2 Cal.5th 903, 914.)
Here, there is no dispute that Meza stole the victim's purse containing her wallet, credit cards, and iPhone. There also is no dispute that Meza unlawfully used the victim's credit cards to obtain gasoline and goods totaling $291.22. In order to reach the threshold value of $950, the People had to establish the theft of items worth at least $658.78.
The victim testified her iPhone was a model S5 or S6, which she purchased for $800. No evidence was elicited regarding the age of the phone, the condition of the phone, or its fair market value at the time of the theft. Without this additional information, the evidence does not establish the fair market value of the iPhone at the time of the theft. (People v. Romanowski, supra, 2 Cal.5th at p. 914.) As such, the evidence is insufficient to establish that the total value of property taken by Meza from the victim exceeded $950.
Consequently, Meza's conviction for grand theft must be reduced to the lesser offense of petty theft. (§ 486.)
II. Senate Bill 136
In October 2019, the Legislature passed Senate Bill 136, amending section 667.5, subdivision (b) (Stats. 2019, ch. 590, § 1). Prior to these amendments, "[i]n sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied 'for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.' " (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for a defendant who had remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.) Senate Bill 136 amended section 667.5, subdivision (b) to state that a one-year term under that section shall be imposed "for each prior separate prison term for a sexually violent offense ...." Thus, Senate Bill 136 eliminates the prior prison term enhancement except in cases involving sexually violent offenses. The law went into effect on January 1, 2020.
As to retroactivity, the parties state, and we agree, that the amendment applies retroactively to Meza because his judgment was not final at the time the change in law went into effect. The statute applies retroactively because the amended statute leads to a reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745, 748 [for a nonfinal conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"].) Further, none of Meza's prior convictions were for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, Meza would not qualify for the imposition of the one-year enhancement imposed for each of his prior prison terms.
The proper disposition is to strike each prior prison term enhancement. Accordingly, we will strike the section 667.5, subdivision (b) enhancements imposed in this matter.
DISPOSITION
Meza's conviction on the count 2 offense is reduced to petty theft. The one-year enhancements imposed pursuant to section 667. 5, subdivision (b) are stricken. The sentence is vacated. The judgment is affirmed in all other respects and the matter is remanded for resentencing.