Opinion
C081993
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH MELGER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-144616)
On January 29, 2016, defendant Thomas Joseph Melger obtained identifying information belonging to the Roseville Chapter of the Northern California DeMolay Association and used it to obtain $300.
Defendant pleaded no contest to identity theft (Pen. Code, § 530.5, subd. (a)) and admitted a strike (§§ 1170.12, 667, subd. (b)) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to a stipulated term of three years eight months, imposed various fines and fees, ordered victim restitution, and awarded 32 days of presentence credit (16 actual and 16 conduct).
Undesignated statutory references are to the Penal Code. --------
Defendant appeals. His request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending that he received ineffective assistance of counsel because his identity theft offense, which involved the loss of $300 for the victim, was a misdemeanor pursuant to section 490.2.
Defendant is wrong.
One of the changes brought by Proposition 47 was the enactment of section 490.2, which states that "[n]otwithstanding 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," subject to certain exceptions not relevant here. (§ 490.2, subd. (a).)
While defendant's crime is called identity theft, it is not a form of grand theft. Section 530.5, subdivision (a) states: "Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170." Section 530.5 does not define a form of grand theft and is therefore not subject to the $950 limitation in section 490.2.
Defendant's reliance on sections 459.5 and 473 are likewise misplaced. Proposition 47 makes commercial burglary during regular business hours involving larceny a misdemeanor unless the amount in question is worth more than $950. (§ 459.5.) Following Proposition 47, forgery is a misdemeanor if the value of the forged item is $950 or less. (§ 473, subd. (b).) Defendant was not convicted under either of these statutes, neither of which change the punishment for defendant's crime of identity theft.
Since defendant's sentence was authorized, counsel was not ineffective for failing to object to it.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: HULL, J. HOCH, J.