Opinion
H043640
09-08-2017
THE PEOPLE, Plaintiff and Respondent, v. TERESA MARTINEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. CR4798)
I. INTRODUCTION
In 1991, defendant Teresa Martinez was convicted by plea of felony grand theft (former Pen Code, § 487, subd. 1), and she admitted having served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to four years in prison, suspended execution of the sentence, and placed her on probation for five years. In 1994, her probation was terminated, and she was sentenced to prison for the previously suspended term of four years.
All further statutory references are to the Penal Code unless otherwise indicated.
In 2015, defendant filed an application pursuant to section 1170.18, subdivision (f), which was enacted as part of Proposition 47, seeking to have her felony grand theft conviction redesignated as a misdemeanor. At the time of her offense in 1991, grand theft included the taking of property valued at more than $400. (Former § 487, subd. 1, as amended by Stats. 1989, ch. 930, § 6.) The trial court denied defendant's application to redesignate her offense as a misdemeanor after implicitly determining that defendant failed to show that the value of the property taken was $950 or less.
On appeal, defendant contends that the trial court erred in denying her application. She argues that her grand theft offense was based on jackets that she took from a store on a certain date, and that the trial court erred by including the value of the jackets that she took from the store on other occasions. According to defendant, the takings on separate occasions could not have been combined into one count for theft.
For reasons that we will explain, we will affirm the trial court's order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's Theft Offense
1. The complaint
In 1991, defendant was charged by complaint with grand theft (former § 487, subd. 1). At the time, grand theft included the taking of property valued at more than $400. In defendant's case, the complaint alleged that "on or about May 28, 1991," defendant took "money and personal property of a value exceeding Four Hundred Dollars ($400.00), the property of another."
Former section 487, subdivision 1 provided in part: "Grand theft is theft committed in any of the following cases: [¶] 1. When the money, labor or real or personal property taken is of a value exceeding four hundred dollars ($400); . . . provided, further, that where the money, labor, real or personal property is taken by a servant, agent or employee from his principal or employer and aggregates four hundred dollars ($ 400) or more in any 12 consecutive month period, then the same shall constitute grand theft." (Stats. 1989, ch. 930, § 6.)
2. The preliminary examination
The testimony at the preliminary examination was as follows.
On May 15, 1991, the owner of a clothing store reported to Santa Cruz County Sheriff's Deputy Tom Gilbertson that four black, suede-leather jackets had been stolen from his store—three that day and one the previous weekend. The owner reported that the value of each jacket was $225.
On May 29, 1991, another deputy was at the clothing store with defendant. While at the store, the deputy requested the assistance of Deputy Gilbertson, who was in "roll call." Also present in the "roll-call room" was Deputy Steve Johnson, who mentioned to Deputy Gilbertson that he had taken a report the previous day, May 28, 1991, from the same clothing store. Deputy Gilbertson testified that Deputy Johnson "indicate[d]" to him that "[a]nother one of the same black-suede jackets" had been stolen from the store on May 28. (Italics added.)
Deputy Gilbertson responded to the clothing store on May 29, 1991. He spoke briefly with a female store employee. The employee "pointed [defendant] out as the woman who had been in the store the previous day, who [the employee] suspected as having stolen two leather jackets." (Italics added.) The employee indicated that defendant had taken two shirts from a rack and then had gone into the dressing room. Upon leaving the store, defendant handed the two shirts back to the employee. The employee discovered the coat hangers from the stolen jackets in the two shirts.
Deputy Gilbertson thereafter talked to defendant at the clothing store and at the sheriff's station. After defendant was advised of her Miranda rights, and during the course of the interview, defendant admitted to having stolen at least five of the jackets in question. Defendant had discovered that the store had jackets on racks without a cable locked through the jackets to protect against theft. She explained that she would take the jackets into the changing rooms, put them in a shopping bag, and then hold the bag below counter height so the store clerks could not see anything as she left the store. Defendant told the deputy that she was trying to "kick" a drug habit. Defendant was arrested that day.
Miranda v. Arizona (1966) 384 U.S. 436.
After the preliminary examination, defendant was held to answer on the grand theft charge.
3. The information and plea
In June 1991, defendant was charged by information with grand theft (former § 487, subd. 1). In language identical to the original complaint, the information alleged that "on or about May 28, 1991," defendant took "money and personal property of a value exceeding Four Hundred Dollars ($400.00), the property of another." The information further alleged that defendant had served a prior prison term (§ 667.5, subd. (b)).
In August 1991, defendant pleaded guilty to grand theft and admitted that she had served a prior prison term.
4. The sentencing
In September 1991, the trial court sentenced defendant to four years in prison, suspended execution of the sentence, and placed her on probation for five years. She was also ordered to pay restitution of $1,350.
In 1994, defendant's probation was terminated, and she was sentenced to prison for the previously suspended term of four years. According to the abstract of judgment, defendant was ordered to pay restitution of $1,350 to the clothing store.
B. Defendant's Proposition 47 Application
In 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which reduced the penalties for certain theft and drug offenses by amending existing statutes and by adding several new provisions. (People v. Gonzales (2017) 2 Cal.5th 858, 863.) Relevant here, Proposition 47 added section 490.2, which generally provides that "obtaining any property by theft" constitutes misdemeanor petty theft if the stolen property is worth $ 950 or less. Proposition 47 also created the crime of misdemeanor shoplifting, which is defined as entering an open commercial establishment with intent to commit larceny of property worth $950 or less. (§ 459.5, subd. (a).)
Section 490.2, subdivision (a) states in full: "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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
The reductions in punishment provided by Proposition 47 are available to defendants who have "completed his or her sentence for a conviction." (§ 1170.18, subd. (f).) In particular, a defendant "who would have been guilty of a misdemeanor . . . had [Proposition 47] been in effect at the time of the offense" may file an application to have the felony conviction redesignated as a misdemeanor. (§ 1170.18, subd. (f).) The trial court must make the misdemeanor designation if the defendant meets the requisite criteria and has not suffered a prior conviction for an enumerated offense. (Id., subds. (g) & (i).)
In December 2015, defendant filed an application with the trial court pursuant to section 1170.18, subdivision (f), seeking to have her felony grand theft conviction redesignated as a misdemeanor. The application did not specify the misdemeanor offense.
In a written response to defendant's application for redesignation as a misdemeanor, the prosecution contended that defendant had not met her burden to show that the amount of the theft was under $950.
Defendant subsequently filed a memorandum in support of her application. She contended that she was convicted of violating section 487 for entering a clothing store on three different occasions and stealing jackets. The jackets were valued at $225 each, and she had "admitted to stealing a total of six jackets." Defendant argued that because "there were three thefts, the most any one of the thefts could total would be four jackets for a total value of nine hundred dollars." According to defendant, "these offenses would have been misdemeanors had Proposition 47 been in effect at the time of her . . . crimes." Defendant sought to have her felony offense redesignated as misdemeanor shoplifting under section 459.5.
The prosecution contended that defendant was not entitled to misdemeanor redesignation under Proposition 47. The prosecution argued that defendant had been ordered to pay $1,350 in restitution, and the amount of restitution was a "clear indication" that she had stolen more than $950 in merchandise from the store.
On June 2, 2016, a hearing was held on defendant's application. Defense counsel contended that defendant had committed a "series" of thefts on different days, that the date alleged in the complaint "coincide[d] with one of the dates," and that "[t]he others weren't charged." Defense counsel argued that "restitution was established for all of them," and "[t]he aggregate total was for $1300, but that's basically a Harvey waiver." (Italics added.) Defense counsel further argued that there was more than one $225 jacket taken on the date that was the basis for the charge, which made the value of property taken exceed $400, the threshold for grand theft at the time. However, the value was less than $950, and had Proposition 47 been in effect, the crime would have been petty theft.
The trial court indicated that it had reviewed the preliminary examination transcript, and that it found the evidence "vague in terms of when things happened." Defense counsel argued that there were three incidents resulting in six jackets being taken. The court responded, "I don't find that the transcript is as clear as you think it is." The court stated that, although there was "some indication" that the thefts occurred on three different dates, there was only "one charge, one date" and defendant admitted that "she took more than five coats." The court denied defendant's application.
III. DISCUSSION
A. Burden of Proof Regarding a Proposition 47 Application
On a Proposition 47 application, the defendant has the ultimate burden of proving eligibility for redesignation as a misdemeanor. (People v. Romanowski (2017) 2 Cal.5th 903, 916.) In this case, the trial court in denying defendant's Proposition 47 application implicitly determined that defendant failed to meet her burden.
"[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279 (Shaw), quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 571; accord In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
B. Parties' Contentions
Defendant contends that she committed "three separate theft offenses on different dates," but that the information "only charged the one that occurred on May 28, 1991." According to defendant, her conviction was based on the theft of two $225 jackets on that date, and thus her felony grand theft offense should be redesignated as misdemeanor petty theft under section 490.2. She argues that, as a matter of law, the three offenses could not have been combined into one theft offense under one count. Defendant contends that the trial court therefore erred by aggregating the value of all the jackets that were taken during the three separate thefts.
Whereas defendant contends in this court that her felony grand theft offense should be redesignated as misdemeanor petty theft (§ 490.2), in the trial court she contended that her felony offense should be redesignated as misdemeanor shoplifting (§ 459.5). As both misdemeanor offenses require that the value of the property taken be $950 or less (§§ 490.2, subd. (a); 459.5, subd. (a)), and as the Attorney General does not object to defendant's change in position as to which misdemeanor offense applies in this case, we will consider the substance of defendant's contention. Moreover, because we conclude that defendant's application for redesignation was properly denied because she failed to establish that her offense involved the taking of property worth $950 or less, we need not decide which of the two misdemeanor offenses—petty theft or shoplifting—could have applied in this case.
The Attorney General contends that defendant "admitted to[] three takings of the same type of item from the same victim in an amount that was over $950." The Attorney General argues that defendant could have been convicted of only one count of felony grand theft for those three takings, based on People v. Bailey (1961) 55 Cal.2d 514 (Bailey) and People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer). The Attorney General contends that defendant's assertion that her conviction encompassed only one of the thefts is not supported by the record. The Attorney General argues that the trial court therefore properly denied defendant's application for redesignation, where the value of all the items she took was over $950.
C. Analysis
As an initial matter, defendant objects to the Attorney General's reliance on certain facts from a probation report in this case. Defendant contends that those facts were not presented at the preliminary examination or at the hearing on her Proposition 47 application. We need not decide whether the Attorney General may properly rely on the facts contained in the probation report. Even without considering those facts, we determine that defendant fails to establish that the trial court erred in denying her Proposition 47 application.
Turning to the substance of defendant's contentions on appeal, we observe that the information alleged that defendant's grand theft offense was "committed on or about May 28, 1991." (Italics added.) Thus, the information did not allege the exact date of the offense as defendant appears to suggest on appeal. We also observe that "the evidence is not insufficient merely because it shows that the offense was committed on another date" than that alleged in the information. (People v. Starkey (1965) 234 Cal.App.2d 822, 827; accord, People v. Peyton (2009) 176 Cal.App.4th 642, 660.) In this case, the evidence at the preliminary examination reflected that all of the takings occurred in May 1991.
We next consider whether the prosecution was precluded, as a matter of law, from charging in one theft count the takings that occurred on the different dates in May 1991, as defendant contends on appeal.
In Bailey, the defendant was convicted of grand theft based on evidence that she had unlawfully obtained a number of welfare payments by false pretenses. (Bailey, supra, 55 Cal.2d at pp. 515, 518.) The issue before the California Supreme Court was "whether [the defendant] was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $ 200 but aggregating more than that sum." (Id. at p. 518, fn. omitted.) The California Supreme Court applied the following test: "Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. [Citation.]" (Id. at p. 519.) The court concluded that the defendant was properly convicted of a single count of grand theft. (Id. at pp. 515, 520.)
At the time, grand theft involved, among other things, theft of money exceeding $200. (Bailey, supra, 55 Cal.2d at p. 518, fn. 3.) --------
"After Bailey was decided, various Court of Appeal decisions expanded Bailey beyond its facts." (People v. Nilsson (2015) 242 Cal.App.4th 1, 13.) Subsequently, in Whitmer, the California Supreme Court clarified the rule of Bailey. The Whitmer court explained that Bailey involved a defendant who had made a single misrepresentation and who had received a series of welfare payments as a result. (Whitmer, supra, 59 Cal.4th at p. 740.) The Whitmer court explained that, "[o]ther than omitting to correct the misrepresentation and accepting the payments, the defendant [in Bailey] committed no separate and distinct fraudulent acts." (Whitmer, supra, at p. 740.)
The Whitmer court contrasted Bailey with the case before it, in which the defendant committed separate and distinct fraudulent acts. (Whitmer, supra, 59 Cal.4th at p. 740.) The Whitmer court went on to hold that "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Id. at p. 741.) Although the Whitmer court expressed its "disapprov[al] of any interpretation of Bailey that is inconsistent with this conclusion," the Whitmer court did not apply its rule to the facts before it. (Ibid.) The Whitmer court explained that a "long, uninterrupted series of Court of Appeal cases, beginning . . . in 1978, . . . have consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft." (Id. at p. 742.) Those Court of Appeal cases barred " 'multiple convictions for grand theft when the individual thefts arise from a recognizable plan or scheme, even though each theft is separate and distinct, and involves property or money exceeding the amount needed for grand theft.' " (Id. at p. 739.) The Whitmer court determined that due process precluded application of its subsequent contrary conclusion to the defendant in the case before it. (Id. at p. 742.)
The Whitmer court instead applied to the facts before it the earlier rule that had emanated from the Court of Appeal cases. In Whitmer, the defendant was the manager of a motorcycle dealership. He arranged for the fraudulent sale of 20 vehicles to fictitious buyers on 13 different dates, which resulted in a total loss to the dealership of over $250,000. (Whitmer, supra, 59 Cal.4th at p. 735.) The defendant "committed a series of separate and distinct, although similar, fraudulent acts in preparing separate paperwork and documentation for each fraudulent transaction." (Id. at p. 740.) The defendant was convicted of 20 counts of grand theft, one count for each of the vehicles fraudulently sold. (Id. at p. 735.) The jury also found true a section 12022.6 allegation. (Whitmer, supra, at pp. 735-736.) The Whitmer court concluded that only one count of grand theft was permissible, explaining as follows: "In finding the [section 12022.6] enhancement allegation true that defendant took property valued at more than $200,000, the jury necessarily found that the grand thefts arose 'from a common scheme or plan.' (Pen. Code, § 12022.6, subd. (b).) The law as it had existed for decades before defendant committed his crimes permitted conviction of only one count of grand theft under those circumstances. Because defendant is entitled to the benefit of that law, he cannot be convicted of more than one count of grand theft." (Whitmer, supra, at p. 742.)
In this case, although defendant took jackets from the store on different dates, a reasonable inference arises from the evidence at the preliminary examination that defendant committed all of the takings "pursuant to a single overarching scheme" or " 'a common scheme or plan.' " (Whitmer, supra, 59 Cal.4th at pp. 741, 742.) Defendant (1) went to the same store each time, (2) took the same type of jacket, and (3) used the same method of putting the jackets in a shopping bag in the dressing room and walking out of the store with the bag at a certain height so the store clerks would not see it. She admitted that she took the jackets after discovering that the store did not use a cable to lock the jackets in place.
In view of (1) the reasonable inference that all the takings arose from a common scheme or plan, and (2) the law as it existed at the time defendant committed the takings, even assuming defendant "committed a series of separate and distinct . . . acts" (Whitmer, supra, 59 Cal.4th at p. 740) in taking the jackets on three separate dates in May 1991, she could be convicted of only one count of grand theft. (Id. at p. 742.) Consequently, the fact that defendant was charged and convicted of only one count of grand theft does not, as she now contends, compel the conclusion that her conviction was based on the taking of jackets that occurred on only one date. Because defendant's conviction may have been based on the taking of five or six jackets, the total value of which was more than $950, defendant fails to establish that the evidence in support of her Proposition 47 application "compels a finding in favor of [her] as a matter of law." (Shaw, supra, 170 Cal.App.4th at p. 279.)
Defendant contends that 1991 version and the current version of section 487, which defines grand theft, "do not allow for aggregation of the value of items taken during separate thefts to reach the threshold value for grand theft except in a special context," that is, when an employee takes an employer's property. (See § 487, subd. (b)(3); see former § 487, subd. 1, as amended by Stats. 1989, ch. 930, § 6.) However, as we have explained, in Whitmer the California Supreme Court determined that the law prior to its decision in 2014 "permitted conviction of only one count of grand theft" when the takings "arose 'from a common scheme or plan.' " (Whitmer, supra, 59 Cal.4th at p. 742.) We are bound by the majority opinion of the California Supreme Court in Whitmer. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also contends that, with respect to Proposition 47 and the petty theft statute (§ 490.2), "the drafters and voters knew how to aggregate the value of multiple items taken at different times but chose not to use that approach." In support of this argument, defendant relies on section 476a, subdivision (b), which pertains to the punishment for passing a check with insufficient funds, and People v. Salmorin (2016) 1 Cal.App.5th 738 (Salmorin), which interpreted Proposition 47 in the context of forgery.
We are not persuaded by defendant's arguments. Section 476a, subdivision (b), which pertains to the punishment for passing a check with insufficient funds, generally provides that the offense is punishable as a misdemeanor "if the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed nine hundred fifty dollars ($950)." Prior to Proposition 47, this subdivision contained this same language, except that the specified amount was $450. (Stats. 2012, ch. 43, § 19, eff. June 27, 2012.) We are not persuaded that the amendment by Proposition 47 to change the dollar amount in this subdivision reflects an intent by the electorate to preclude the aggregation of the value of items taken for a petty theft offense under section 490.2.
Salmorin also does not advance defendant's argument. In Salmorin, the defendant filed a petition under Proposition 47 to have his felony forgery conviction resentenced to a misdemeanor. (Salmorin, supra, 1 Cal.App.5th at p. 741.) Proposition 47 amended section 473 to generally provide that forgery is a misdemeanor if the forgery relates to "a check" and "the value of the check" does not exceed $950. (§ 473, subd. (b).) The prosecution opposed the petition on the ground that the defendant's offense was based on a joint venture or criminal enterprise with another person involving five checks with a total value in excess of $950, although none of the individual checks had a value greater than $950. (Salmorin, supra, at p. 742.) The trial court denied the petition based on the aggregate value of the checks. (Ibid.)
The appellate court concluded that it was error to aggregate the value of the checks. (Salmorin, supra, 1 Cal.App.5th at p. 745.) The court observed that "[i]n referring to 'a check' and 'the value of the check,' the language of [section 473, subdivision (b)] distinguishes misdemeanor forgery from felony forgery based on the value of any single check the person is guilty of forging, not the aggregate value of two or more checks. [Citations.]" (Salmorin, supra, at p. 746.) The court also determined that "a single forgery offense cannot comprise multiple forgeries." (Id. at p. 748.) On this point, the court refused to extend Bailey, supra, 55 Cal.2d 514 (series of takings committed pursuant to one intention, general impulse, and plan constitutes a single offense of theft), to forgery. (Salmorin, supra, at pp. 748-751.)
In this case, defendant seeks to have her grand theft offense redesignated as petty theft. In contrast to section 473, subdivision (b), which defines misdemeanor forgery based on the value of a single check (Salmorin, supra, 1 Cal.App.5th at p. 746), section 490.2, subdivision (a) does not define petty theft based on the value of a single item. Instead, section 490.2, subdivision (a) defines petty theft generally as "obtaining any property by theft where the value of the money, labor, real or personal property taken" does not exceed a specified amount.
The statutory language defining petty theft under section 490.2, subdivision (a) is similar to the statutory language defining grand theft (except as to value), and the statutory language defining grand theft has remained substantially the same since the time of defendant's offense. (See § 487, subd. (a) [grand theft is committed "[w]hen the money, labor, or real or personal property taken is of a value" exceeding a specified amount]; former § 487, subd. 1, as amended by Stats. 1989, ch. 930, § 6 [grand theft is committed "[w]hen the money, labor or real or personal property taken is of a value" exceeding a specified amount].) As we have explained, the law at the time of defendant's offense "permitted conviction of only one count of grand theft" when a series of takings "arose 'from a common scheme or plan.' " (Whitmer, supra, 59 Cal.4th at p. 742.) We are not persuaded that section 490.2, as added by Proposition 47, changed the law, as set forth in Whitmer, concerning when one theft count may be based on a series of takings. As defendant's 1991 conviction could have been based on takings occurring on more than one date with a total property value in excess of $950, defendant fails to persuasively articulate how her offense could still be redesignated as misdemeanor petty theft under section 490.2.
Defendant observes that Proposition 47 provides for a "liberal[]" construction to effectuate its purposes, which include "[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, §§ 18, 3, pp. 74, 70.) She argues that the denial of her Proposition 47 application does not effectuate the purpose of Proposition 47. However, in view of the text of section 490.2, the evidence presented in connection with defendant's Proposition 47 application, and the law as it pertains to a series of takings by a defendant, we do not believe that a liberal construction of Proposition 47 can support the conclusion that her grand theft conviction may be redesignated as misdemeanor petty theft under section 490.2. (See Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298 ["the rule of liberal construction . . . should not be used to defeat the overall statutory framework and fundamental rules of statutory construction"].)
Defendant also asserts that she was ordered to pay restitution for the jackets taken on dates other than May 28, 1991, "pursuant to a Harvey waiver." (See People v. Harvey (1979) 25 Cal.3d 754, 758 [in sentencing a defendant, a court may not consider the facts underlying a count dismissed in a plea bargain unless the parties agree otherwise]; People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 5 ["a defendant may agree as part of a plea bargain that the trial court may consider at sentencing the facts of unrelated dismissed or uncharged crimes"].)
If the restitution order was based on a Harvey waiver, defendant might be able to establish that her grand theft offense pertained to the taking of only some of the jackets and she was ordered to pay restitution for the other jackets only due to the waiver. However, defendant's citations to the record do not support her assertion that she entered into a Harvey waiver. For example, she cites the reporter's transcript of the hearing on her Proposition 47 application, in which her counsel argued that "basically a Harvey waiver" had been entered with respect to the restitution order. (Italics added.) Neither counsel's argument at the Proposition 47 hearing nor defendant's argument in this court establishes that a Harvey waiver was entered at the time of the original plea or sentencing. Defendant also cites the sentencing minutes when she was initially granted probation. Those sentencing minutes reflect that she was ordered to pay restitution of $1,350, but do not indicate whether defendant entered a Harvey waiver.
In sum, the record reflects that defendant's grand theft offense could have included her takings on separate dates of at least five jackets valued at more than $950. In challenging the trial court's denial of Proposition 47 application, defendant fails to establish that "the evidence compels a finding in favor of [her] as a matter of law," that is, that the evidence compels a finding that her offense was based on the taking of only two jackets. (Shaw, supra, 170 Cal.App.4th at p. 279.) Accordingly, defendant has not shown that the trial court erred in denying her petition.
IV. DISPOSITION
The order denying defendant's application to have her felony grand theft conviction redesignated as a misdemeanor is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.