Opinion
E064645
01-03-2017
THE PEOPLE, Plaintiff and Appellant, v. ALEXANDRU DANTOS, Defendant and Respondent.
Michael A. Hestrin, District Attorney, Emily R. Hanks and Donald W. Ostertag, Deputy District Attorneys, for Plaintiff and Appellant. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1302637) OPINION APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge. Affirmed. Michael A. Hestrin, District Attorney, Emily R. Hanks and Donald W. Ostertag, Deputy District Attorneys, for Plaintiff and Appellant. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Respondent.
This appeal arises from the trial court's order granting defendant and respondent Alexandru Dantos's petition for resentencing brought under Penal Code section 1170.18 (also known as Proposition 47). In their briefing on appeal, the People advanced several arguments as to why, in their view, that order should be reversed. At oral argument, however, the People requested that we affirm the trial court, because reversal would be a waste of judicial resources. Defense counsel agreed.
Further undesignated statutory references are to the Penal Code.
We affirm the trial court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2013, defendant pleaded guilty to, among other things, one count of second degree burglary (§ 459). In February 2015, defendant filed his petition for resentencing under Proposition 47 with respect to that conviction, which the trial court summarily granted in August 2015.
Subsequently, the People filed a supplemental opposition to defendant's petition—in effect, a petition for rehearing. In the supplemental opposition, the People summarized the facts as follows: "On May 29, 2013, the defendant entered the US Bank at 1260 E. Ontario Avenue, City of Corona, and presented a $500 check to the teller. The check was allegedly issued by Michael Passalacqua to the defendant. When the teller tried to process the check, she learned the account was flagged. The victim, Mr. Passalacqua, had recently had his checks stolen. Mr. Passalacqua confirmed to the teller and police that he did not know the defendant and never issued him a check." The supplemental opposition argues that a bank is not a "commercial establishment" within the meaning of section 459.5, because it does not display or sell goods, so defendant's conduct does not fall within the definition of "shoplifting" under that statute.
In September 2015, the trial court held a hearing on the matter. The People requested that the police report of the events leading to defendant's conviction be filed under seal. The trial court granted the People's request, and stated that defendant's petition "remains granted."
II. DISCUSSION
In briefing on appeal, the People argued that the trial court should have denied defendant's petition, because (1) he failed to meet his burden of proving eligibility for resentencing; and (2) his conduct remains punishable as felony second degree burglary following Proposition 47, because it constituted identity theft, not larceny. The People asked that we reverse the trial court's order on these bases. At oral argument, however, the People expressly and unequivocally urged that we affirm the trial court, because reversal would result in a waste of judicial resources. Defense counsel agreed.
The People have conceded that defendant could and would ameliorate any evidentiary problems with his petition. Specifically, they have conceded that defendant committed the charged burglary by entering a bank with the intent to cash a forged check in the amount of $500, even though defendant presented no evidence of these facts in support of his petition. They acknowledged at oral argument that if the matter were remanded, the police report showing these facts would be stipulated into evidence by the parties, and would constitute an adequate evidentiary basis for a ruling on the merits of defendant's petition.
At oral argument, counsel for the People further conceded that absent any evidentiary issues, applying previous case authority from this court about the scope of section 459.5 (as well as the tentative opinion issued by the court in this matter) to the undisputed facts, we would affirm the trial court's grant of defendant's petition. The People expressed their continued disagreement with this court's analysis: the People disagree that a bank is a "commercial establishment" as that term is used in section 459.5, and argue that defendant's conduct falls outside the scope of Proposition 47 because he entered the bank to commit identity theft, not larceny. The People noted that each of these legal questions is now pending before the California Supreme Court, but acknowledged that they were not likely to persuade this court to reverse itself.
The identity theft argument was raised for the first time on appeal; it was not presented to the trial court. --------
In essence, in the interest of preserving judicial and other resources, the People have abandoned their appeal with respect to any issues regarding the sufficiency of the evidence in support of defendant's petition. And they acknowledge the current state of the law regarding the scope of section 459.5, as articulated by this court, is against them, given the undisputed facts of this case. On that basis, they request that we affirm the trial court's order, expediting the process of bringing this case to the Supreme Court, where they intend to request review on a "grant and hold" basis, pending the resolution of cases already before the Supreme Court.
The People's concession that we should affirm the trial court's order is well taken, and we accept it.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. I concur: CODRINGTON
J.
RAMIREZ, P. J., Dissenting and Concurring
I appreciate the shared objectives of the parties, seeking to avoid a waste of judicial resources in the trial court. However, I write separately to express the following views: First, the People did not abandon the appeal or seek a dismissal. An abandonment must be in writing, and filed with the court, in order to obtain a dismissal. (Cal. Rules of Ct., rule 8.316, subd. (a).) Instead, the People reversed their position at oral argument, after all the briefing was complete and the tentative opinion had been sent out. A party may not change or reverse his position and adopt a new and different theory on appeal; the theory upon which a case is tried must be adhered to on appeal. (In re Blake (1979) 99 Cal.App.3d 1004, 1022, and cases cited therein.) Nor may a party adopt a new position at oral argument. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn.13; People v. Pena (2004) 32 Cal.4th 389, 403.)
Second, the majority summarizes facts referring to a supplemental opposition filed by the People that was not before the trial court at the time it summarily granted the petition. It is well settled that the reviewing court assess a ruling based on the record before the trial court at the time of the ruling. (People v. Price (1991) 1 Cal.4th 324, 328; People v. Burch (2007) 148 Cal.App.4th 862, 867.)
The appeal should have been dismissed by a timely abandonment.
RAMIREZ
P. J.