Opinion
A153476
09-09-2020
THE PEOPLE, Plaintiff and Respondent, v. PARIS KURT RAGLAND, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC194558)
Defendant Paris Kurt Ragland, Jr., appeals his convictions on six felony counts of misusing the personal identifying information of another, often called "identity theft." (Pen. Code, § 530.5, subd. (a)) In briefs filed in 2019, he contended that, under our holding in People v. Chatman (2019) 33 Cal.App.5th 60, review granted June 26, 2019, S255235, cause transferred June 17, 2020 (Chatman), statutory revisions made by Proposition 47 required that those offenses be charged either as misdemeanor shoplifting (§ 459.5) or as petty theft (§ 490.2). He also contended that we must remand to allow the trial court to exercise a newly conferred discretion to strike certain firearm enhancements, to consider whether to decline to impose various fees and assessments, and to correct the abstract of judgment. The Attorney General conceded each point but the first, as to which he noted that the issue of whether Proposition 47 affects convictions for identity theft was then before the Supreme Court in People v. Jimenez (2018) 22 Cal.App.5th 1282, review granted July 25, 2018, S249397. In November 2019, while Jimenez was still pending before the Supreme Court, we issued an opinion in this case relying on Chatman to reduce the identify-theft convictions to misdemeanors under section 459.5.
All undesignated statutory references are to the Penal Code.
In January 2020, the California Supreme Court granted review of this case and deferred briefing pending its resolution of Jimenez. In March 2020, the court issued People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez), which holds that a felony conviction for misuse of personal identifying information under section 530.5, subdivision (a) may not be reduced to misdemeanor shoplifting or petty theft under Proposition 47. (Id. at p. 58.) The court then transferred this cause to us with directions to vacate our decision and reconsider the cause in light of Jimenez.
Jimenez, supra, 9 Cal.5th 53 does not explicitly disapprove Chatman, supra, 33 Cal.App.5th 60 but its holding indisputably has that effect. Since this cause was transferred back to this court, defendant has not filed a brief suggesting otherwise. Accordingly, under Jimenez, supra, at page 58, defendant's convictions under section 530.5, subdivision (a) are not subject to reclassification as misdemeanor theft offenses and must instead be affirmed. We shall remand for the trial court to address the other issues as specified below.
Factual and Procedural History
Defendant was convicted on 12 counts based on two series of events in September 2015 in which he robbed people of their credit cards and then used the cards—or aided his girlfriend in using them—to buy goods in various stores. The first six counts involved the robbery and attempted robbery of two victims on September 2 (counts 1-2; §§ 211, 664, 187) and the subsequent use of one victim's credit card at four convenience or grocery stores to buy items worth less than $950 (counts 3-6; § 530.5, subd. (a)). The final six counts involved a September 9 robbery and assault of a third victim (counts 7-9 and 12; § 211, § 245, subds. (a)(2) & (a)(4), § 243, subd. (d)) and aiding the use of that person's credit card at two stores to buy items worth less than $950 (counts 10-11; § 530.5, subd. (a)). The information alleged facts supporting several sentencing enhancements.
With regard to the robbery and assault charges, the enhancements included personal use of a firearm (§ 12022.53, subds. (b), (g); § 12022.5, subd. (a)) and, as to the third victim, personal infliction of great bodily injury (§ 12022.7, subd. (a)); as to all counts, defendant was charged with having served two prior prison terms (§ 667.5, subd. (b)).
After a jury found defendant guilty on all counts and found true the enhancement allegations, the court sentenced him to 30 years 4 months in prison. The court imposed a $300 restitution fine and a stayed $300 parole-revocation fine (§§ 1202.4, 1202.45), a $480 court security fee (§ 1465.8), and a $360 criminal conviction fee (Gov. Code, § 70373). Defendant timely appealed.
The sentence comprises an upper term of five years, along with firearm and injury enhancements that total 13 years, on count 7 (robbery of the third victim); consecutive terms of one year and of eight months, respectively, on counts 1 and 2 (robbery of the first victim and attempted robbery of the second), with a firearm enhancement of three years four months on each of those counts; and consecutive terms of eight months each (one-third the midterm) on the six identity-theft counts (counts 3-6 and 10-11; § 530.5, subd. (a)). The court stayed the sentences on the remaining counts under section 654 and struck defendant's priors.
Discussion
1. The identity-theft convictions must be affirmed.
Section 530.5, subdivision (a) proscribes what is often colloquially called "identify theft" committed by using another's personal identifying information to obtain credit or goods. In Chatman, supra, 33 Cal.App.5th 60, this court held that section 459.5, subdivision (b), enacted by Proposition 47, bars charging a defendant with identity theft under section 530.5, subdivision (a) if the defendant's conduct constitutes "shoplifting" as defined in section 459.5, subdivision (a). (Chatman, at p. 62.) In so holding, we expressly followed People v. Jimenez, supra, 22 Cal.App.5th 1282—which has since been reversed by Jimenez, supra, 9 Cal.5th 53.
The defendant in Jimenez entered a check-cashing store to cash checks from a company payable to himself, in amounts less than $950. (Jimenez, supra, 9 Cal.5th at p. 59.) The checks contained the company's "personal identifying information in the form of an account number," and the company had not issued them in Jimenez's name or authorized him to issue them. (Ibid.) A jury convicted Jimenez of two violations of section 530.5, subdivision (a), which prohibits "willfully obtain[ing] personal identifying information" of another person "and us[ing] 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." (§ 530.5, subd. (a).)
Jimenez later moved to reclassify his felony convictions to misdemeanors pursuant to the same statute on which defendant relies in this case: section 459.5. (Jimenez, supra, 9 Cal.5th at p. 60.) Subdivision (a) of section 459.5 defines the new offense of shoplifting, which consists of entering a commercial establishment "with intent to commit larceny" while the establishment is open during business hours, and where the value of the property taken or intended to be taken is $950 or less. Subdivision (b) of section 459.5 states that any act of shoplifting "shall be charged as shoplifting," and that "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property." The Court of Appeal held that because Jimenez's conduct satisfied the elements of shoplifting, he was entitled to have his felony convictions under section 530.5, subdivision (a) reclassified as misdemeanor violations of section 459.5. (Jimenez, at pp. 60-61.)
The Supreme Court reversed. (Jimenez, supra, 9 Cal.5th 53.) Noting that a conviction under section 530.5, subdivision (a) requires proof that a defendant " 'willfully obtain[ed] personal identifying information belonging to someone else; . . . use[d] that information for any unlawful purpose; and . . . d[id] so without the consent of the person whose personal identifying information [was] being used' " (Jimenez, at p. 63), the court reasoned that "[a]lthough lawmakers and the public sometimes refer to section 530.5, subdivision (a)'s prohibition on the misuse of personally identifying information as 'identity theft,' section 530.5, subdivision (a) makes no mention of theft" (ibid.), does not require that the identifying information have been stolen (ibid.), and does not define "a theft offense, but an 'essentially unique crime' " (id. at p. 65). Even assuming Jimenez's course of conduct included acts satisfying the elements of shoplifting as defined by subdivision (a) of section 459.5, it does not follow, the court held, that subdivision (b) of that statute requires that the offenses of which he was convicted be reclassified as shoplifting: "What triggers section 459.5, subdivision (b)'s bar is not only whether a defendant's course of conduct includes an act of shoplifting, but also whether the charged crime is burglary or theft of the same property." (Id. at p. 66.) Because Jimenez's charged crime—misuse of personal identifying information under section 530.5, subdivision (a)—did not constitute burglary or theft, the court was not required to reclassify the crime as shoplifting: "Only if the offense is eligible for reclassification must a court consider whether a defendant's conduct fulfills the elements of shoplifting, bringing it within Proposition 47's scope." (Ibid.) While acknowledging that "[p]eople who violate section 530.5, subdivision (a) will often use the information to commit some manner of theft, making the theft an important element of that second crime" (id. at p. 70), the court held that fact to be immaterial: " 'That Jimenez committed shoplifting in the course of identity theft does not alter the fact that he committed identity theft' " (ibid.).
For similar reasons, the court rejected Jimenez's alternative contention "that his conviction can be reduced to misdemeanor petty theft, the other new misdemeanor theft offense created by Proposition 47." (Jimenez, supra, 9 Cal.5th at p. 70.) The court quoted section 490.2: " 'Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .' " (Ibid.) Jimenez's reliance on section 490.2 failed "for the same reason his conviction cannot be reclassified as shoplifting: Misuse of personal identifying information is not a theft offense." (Ibid.)
These holdings foreclose defendant's essentially identical arguments here. Like Jimenez, defendant contends that subdivision (b) of section 459.5 requires that his misuse of the personal identifying information on his victims' credit cards be reclassified as misdemeanor shoplifting because the conduct in which he and his codefendant engaged satisfied the elements of subdivision (a) of section 459.5. And like Jimenez, he contends in the alternative that section 490.2 requires that the offenses be reclassified as misdemeanor petty theft because he or his codefendant obtained, by theft, property valued at less than $950. But even assuming that defendants' conduct satisfied the elements of section 459.5, subdivision (a) or section 490.2, the offense with which defendant was charged was misuse of personal identifying information in violation of section 530.5, subdivision (a). Under Jimenez, that offense is not a theft offense, and a conviction of that offense is therefore not subject to reclassification as misdemeanor shoplifting or misdemeanor petty theft pursuant to section 459.5, subdivision (b) or section 490.2. (Jimenez, supra, 9 Cal.5th at pp. 58, 70-71.)
2. The case must be remanded for the trial court to make discretionary sentencing determinations and corrections to the abstract of judgment.
The Attorney General correctly acknowledges that the case must be remanded to allow the trial court to exercise its discretion under recently enacted Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2, pp. 5104-5106) to determine whether to strike the firearm enhancements (People v. Zamora (2019) 35 Cal.App.5th 200, 206-208), to determine whether to refrain from imposing various fees and assessments in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 and subsequent opinions addressing the issues raised in Dueñas (including People v. Johnson (2019) 35 Cal.App.5th 134 and People v. Cowan (2020) 47 Cal.App.5th 32, review granted, June 17, 2020, S261952), and to correct the abstract of judgment in several respects. The corrected abstract should indicate that (a) the court imposed one third of the middle term on each subordinate term of the sentence, (b) the terms imposed on counts 8, 9, and 12 are stayed pursuant to section 654, without deeming the terms either "concurrent" or "consecutive," (c) defendant received 934 (rather than 915) days' presentence credit, (d) the prior-prison-term enhancements were stricken (not "stayed"), and (e) the stayed term on count 8 was 3 (not 4) years.
Disposition
The convictions are affirmed. The matter is remanded for resentencing and correction of the abstract of judgment as specified above.
POLLAK, P. J. WE CONCUR: TUCHER, J.
BROWN, J.