Opinion
2d Crim. No. B262302
09-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JACK E. SIRMAN, Defendant and Appellant.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Robert M. Snider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA030244)
(Los Angeles County) OPINION FOLLOWING TRANSFER FROM SUPREME COURT
On August 16, 2017, the California Supreme Court ordered us to reconsider our prior December 7, 2015, decision, which affirmed the trial court's denial of Sirman's petition to reclassify two prior convictions. In light of People v. Romanowski (2017) 2 Cal.5th 903, we now issue the following decision.
Jack E. Sirman appeals an order denying his petition to reduce and reclassify his two prior convictions for acquiring or retaining possession of access card account information (Pen. Code, § 484e, subd. (d)) (counts 17 and 18) from felonies to misdemeanors under the Safe Neighborhoods and Schools Act (§ 1170.18) (hereafter "Proposition 47"). We conclude, among other things, that the trial court incorrectly ruled these convictions did not qualify as the type of convictions eligible for reclassification under section 490.2. We reverse and remand for further proceedings.
All statutory references are to the Penal Code unless stated otherwise. --------
FACTS
In the early evening of November 3, 2004, Los Angeles Sheriff's Deputy Jeff Williams investigated an automobile parked in the desert near Lancaster. As Williams approached the passenger side of the car, he saw a glass pipe containing residue lying on the floorboard near Sirman's feet. Sirman told Williams, "That's my pipe, but I'm not high." Tami Wear, the driver of the vehicle, told Williams that Sirman printed checks at his residence and used them to obtain merchandise. (People v. Sirman (July 24, 2006, B184084) [nonpub. opn.].)
After arresting Sirman, sheriff's deputies searched the car and Sirman's room. They found, among other things, "baggies of methamphetamine, counter checks, and identification and credit cards in the names of others." (People v. Sirman, supra, B184084.) At trial, witnesses identified the credit cards found in the car and Sirman's room. They testified they did not know Sirman. (Ibid.)
In 2005, the jury found Sirman guilty of 19 felony counts. They included five counts of forgery (§ 475) (counts 1-5), receiving stolen property (§ 496, subd. (a)) (count 6), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 7), identity theft (§ 530.5, subd. (a)) (counts 8-9 and 13-16), grand theft (§ 487, subd. (a)) (counts 10-12), theft of access card account information (§ 484e, subd. (d)) (counts 17-18), and theft (§ 484e, subd. (b)) (count 19).
Sirman admitted suffering a prior felony strike conviction and serving two prior prison terms. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b); People v. Sirman, supra, B184084.) The trial court sentenced him to an aggregate state prison term of 21 years 4 months.
In 2014, Sirman filed a petition for resentencing under Proposition 47. After a hearing, the trial court reduced his felony convictions on counts 1, 6, 7, 11 and 19 to misdemeanors under Proposition 47. (§ 1170.18.) The court resentenced Sirman to an aggregate sentence of 18 years 8 months.
The trial court denied his petition to reduce counts 17 and 18 (theft of access card account information) to misdemeanors. It said those crimes (§ 484e, subd. (d)) involve "a grand theft charge," but they fall "outside the scope of Proposition 47."
DISCUSSION
Sirman contends the trial court erred by ruling that his prior felony convictions for acquiring or retaining possession of access card account information (§ 484e, subd. (d)) (counts 17 and 18) were categorically ineligible to be reduced to misdemeanors under Proposition 47. He claims they fall within section 490.2, which permits grand theft felonies to be reclassified as misdemeanors if they do not exceed a $950 limit. We agree.
In People v. Romanowski, supra, 2 Cal.5th at pages 905-906, our Supreme Court held that "theft of access card account information--an offense that includes theft of credit and debit card information--is one of the crimes eligible for reduced punishment" under Proposition 47. The court said, "What section 490.2 indicates is that after the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950." (Id. at p. 908.) The trial court erred.
DISPOSITION
The order denying the petition is reversed and the case is remanded to the trial court to decide the remaining issues on Sirman's petition for Proposition 47 relief. (People v. Romanowski, supra, 2 Cal.5th at pp. 916-917.).
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Christopher G. Estes, Judge
Superior Court County of Los Angeles
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.