Opinion
E073566
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. BRENDAN JOSEPH HOLT, Defendant and Appellant.
Cathryn L. Rosciam, 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, Arlene A. Sevidal and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1602451) APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Cathryn L. Rosciam, 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, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
MEMORANDUM OPINION
In 2016, Brendan Joseph Holt attempted to make a $123.64 purchase in a retail store using the victim's credit card.
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. --------
The Riverside County District Attorney charged Holt with the unauthorized use of personal identifying information of another (Pen. Code, § 530.5, subd. (a)) and theft of access card account information (Pen. Code, § 484e, subd. (d), unlabeled statutory citations refer to this code). The criminal complaint also alleged Holt had one prior strike conviction and four prison priors.
In 2017, Holt pleaded guilty to the charge of unauthorized use of personal identifying information of another and admitted to the prior strike, as well as to three out of four prison priors in exchange for a stipulated sentence of five years eight months in state prison. The trial court sentenced Holt according to the plea agreement. This sentence consisted of the low term of two years eight months plus three one-year terms for each of the prison priors.
On May 22, 2019, Holt petitioned the trial court under section 1170.18 to reduce his felony conviction to a misdemeanor. The People filed a form opposition, alleging Holt failed to meet his burden of proof for relief. The trial court denied the petition on the basis that Holt's conviction was not a qualifying felony under section 1170.18. Holt now challenges that order on appeal.
On November 4, 2014, voters enacted Proposition 47 which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 also created a resentencing provision: Section 1170.18. Under that provision, individuals who are serving, or have already served, a felony sentence for an offense that is now a misdemeanor under Proposition 47 may petition the trial court to have their felony conviction designated a misdemeanor. (§ 1170.18, subds. (a) & (f).)
Among the crimes reduced to misdemeanors by Proposition 47 is shoplifting where the property value does not exceed $950 (§ 459.5). Holt argues his attempt to buy $123.64 worth of goods using a stolen credit card constitutes shoplifting under this provision.
However, as Holt himself recognizes, the California Supreme Court recently rejected this exact argument in People v. Jimenez (2020) 9 Cal.5th 53, 61 (Jimenez). In that case, our Supreme Court "conclude[d] that section 459.5 does not encompass misuse of identifying information. The preclusive language of section 459.5, subdivision (b) . . . applies only as to theft or burglary offenses. Section 530.5, subdivision (a) does not define such an offense." (Ibid.) Accordingly, a violation of section 530.5, subdivision (a), is not eligible for reduction under section 1170.18. (Jimenez, at p. 58.)
DISPOSITION
We affirm the trial court's order denying Holt's petition for resentencing under section 1170.18.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.