Opinion
E073502
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MAJANO ROMERO, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF054674) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court denied the petition made pursuant to Penal Code section 1170.18 by defendant and appellant Anthony Majano Romero seeking reduction of his conviction for felony possession of stolen property to a misdemeanor. On appeal, he argues that the petition should have been granted. The People concede the point, and we agree.
All further statutory references are to the Penal Code, unless otherwise noted. --------
BACKGROUND
In May 2006, defendant was a passenger in a car that was subjected to a traffic enforcement stop by an Indio police officer. Defendant, who was a gang member in possession of methamphetamine and a loaded, stolen nine-millimeter semiautomatic firearm, attempted to run away on foot but was apprehended.
In response to charges stemming from his arrest, defendant pled guilty in June 2008 to eight felony counts, including receiving the stolen firearm in violation of Penal Code section 496, subdivision (a). Defendant admitted he committed that offense for the benefit of a criminal street gang within the meaning of subdivision (b) of Penal Code section 186.22. The court sentenced him to 15 years in state prison, which was later corrected to 13 years by an adjustment to the term imposed on the principal count (count 5, violation of Health & Saf. Code, § 11370.1, subd. (a), possessing a loaded firearm while in possession of methamphetamine). The sentence included a total of five years for receipt of the stolen property, consisting of the midterm of two years plus three years for the street gang enhancement, to run concurrently with the principal count.
After the November 2014 passage of Proposition 47, defendant petitioned the trial court pursuant to newly enacted section 1170.18 to reduce to a misdemeanor his conviction for receiving stolen property on the grounds the firearm's value did not exceed $950. The People agreed defendant was entitled to the reduction. The court denied the petition, finding that the section 186.22 gang benefit enhancement foreclosed granting the requested relief.
DISCUSSION
On appeal, defendant argues that (i) his felony conviction for receiving stolen property qualifies for reduction to a misdemeanor pursuant to Proposition 47, and (ii) the attachment of a conduct enhancement to the offense does not render it ineligible for the reduction. The People concede those points. Although we agree the offense qualifies for reduction and resentencing, the applicable statute is section 496, not section 490.2 as posited by the parties.
Proposition 47, approved by voters in 2014, added or amended several statutory provisions making certain drug-related and theft offenses punishable as misdemeanors instead of felonies. (People v. Page (2017) 3 Cal.5th 1175, 1179.) The Proposition added section 490.2, relied on by the parties here, which eliminated the need to modify all penalties set forth in the existing grand theft statutes by providing a "sweeping catchall" category of conduct to encompass theft of any property valued at $950 or less. (People v. Orozco (2020) 9 Cal.5th 111, 120 (Orozco).) The new provision is not applicable here because it is aimed at the wrongful taking of property, not the receiving of property that has been stolen. (Id. at pp. 121-122.)
The provision relating to the receipt of stolen property is section 496, which is the statute violated by defendant that is under consideration here. After defendant's conviction, subdivision (a) of section 496 was amended by the passage of Proposition 47 to provide that, subject to exceptions not pertinent in this case, receipt of any stolen property with a value not exceeding $950 is to be punished as a misdemeanor. (§ 496, subd. (a); amend. approved by voters, Prop. 47, § 9, eff. Nov. 5, 2014.)
Proposition 47 also added section 1170.18, which sets forth the procedure for recall and reduction of a felony sentence for an offense that would have been classified as a misdemeanor had the changes effectuated by the Proposition been in effect at the time of sentencing. (§ 1170.18, subd. (a).) It specifically authorizes a person who is serving a sentence for felony violation of former section 496 to petition the court that entered the judgment for a recall of the sentence and request resentencing if the value of the stolen property received by that person was $950 or less. (§ 1170.18, subd. (a).) If the petition is successful, the offense must be considered a misdemeanor for all purposes except the person may not own, possess, or have custody or control of a firearm. (§ 1170.18, subd. (k).)
Defendant qualifies for relief under Proposition 47. When defendant filed his petition pursuant to section 1170.18, he was incarcerated on account of a number of Penal Code violations, including receipt of the stolen firearm in violation of section 496, subdivision (a). It appears from his petition and the People's concession that the firearm was worth no more than $950. Defendant was, therefore, entitled to have his felony conviction for receiving stolen property reduced to a misdemeanor.
The trial court, however, found that the attachment of the section 186.22, subdivision (b), street gang enhancement to the conviction for receipt of stolen property foreclosed resentencing under Proposition 47. That provision authorizes an enhanced penalty if a person is convicted of a felony committed at the direction or for the benefit of, or in association with, a criminal street gang, if it was committed with the specific intent to promote, further, or assist the criminal conduct of gang members. (§ 186.22, subd. (b).) The trial court's finding that the enhancement insulates a Proposition 47 eligible felony conviction from recall and reduction of the sentence was erroneous for each of the following reasons.
First, Proposition 47 took care to exclude specified offenses from its coverage. If the electorate, which is generally presumed to be aware of existing law, intended to exclude from the Proposition's coverage otherwise eligible felonies because an enhancement was attached to the sentence, it would have done so. (Orozco, supra, 9 Cal.5th at p. 118; see People v. Sweeney (2016) 4 Cal.App.5th 295, 302 [Although a felony conviction accompanied by a gang enhancement is necessarily a strike, there is no general rule that a strike cannot be reduced to a misdemeanor pursuant to Proposition 47.].)
Second, Proposition 47 was enacted to reduce penalties for specific drug and theft offenses and reduce the number of nonviolent offenders in state prisons, and to permit certain previously convicted offenders to petition for reduced sentences. (People v. Adelmann (2018) 4 Cal.5th 1071, 1075; Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.) The initiative is required to be liberally construed to effectuate its purposes. (People v. Valenzuela (2019) 7 Cal.5th 415, 423.) It defeats the intent of Proposition 47 to permit the street gang enhancement, which is dependent on the existence of the felony conviction for its validity, to be used to obstruct reduction of an eligible felony conviction to a misdemeanor. After all, if the underlying felony conviction is reduced to a misdemeanor, then the reduced conviction is required to be treated as a misdemeanor for all purposes and the enhancement is rendered a nullity because it may not be imposed unless there is a felony conviction. (§ 1170.18, subd. (k); see People v. Buycks (2018) 5 Cal.5th 857, 888-890 [A Proposition 47 reduction of a felony conviction to a misdemeanor negated the section 12022.1 on bail enhancement, which may not be imposed absent two felony convictions.].)
DISPOSITION
The order denying defendant's section 1170.18 petition is reversed with instructions that the conviction for receiving stolen property (count 3) be recalled and resentenced as a misdemeanor, and that the section 186.22, subdivision (b) street gang enhancement be stricken. The clerk of the superior court is directed to amend the abstract of judgment to reflect the new sentencing and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J.
RAPHAEL
J.