Opinion
E068840
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM DIONICIO MUNOZ, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1400489) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Abraham Dionicio Munoz tried to steal a vehicle from a car dealership. A jury convicted defendant of burglary (Pen. Code, § 459), possessing a forged driver's license to facilitate a forgery (§ 470b), attempted grand theft of a 2007 Cadillac (§§ 664, 487, subd. (d)(1)), and possession of methamphetamine for sale (Health & Saf. Code, § 11378). Defendant appeals from an order denying his petition for resentencing and to reduce his current offenses of second degree burglary, possessing a forged driver's license to facilitate a forgery, and attempted grand theft of a vehicle to misdemeanors under the Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18.) We find no error and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The relevant factual and procedural background is taken from defendant's prior appeal in case No. E063620. (See People v. Munoz (Feb. 23, 2017, E063620) [nonpub. opn.] (Munoz I).) This court took judicial notice of its file in case No. E063620 on December 12, 2017. --------
In February 2012, defendant and another man entered the CarMax dealership in Ontario, California, at closing time. The two men briefly looked at two cars—a 2013 Audi A4 worth $30,000 and a 2007 Cadillac worth $17,000—before agreeing to purchase the vehicles.
Defendant provided a salesman with a preapproved loan packet, including a loan voucher, from an automobile finance company. With that paperwork, all defendant had to provide to complete the purchase of the Cadillac was a government-issued identification. Defendant provided a driver's license with his photograph and the name "T.G." The driver's license was "thin and flimsy. Not like a normal driver's license." Defendant's photograph was depicted on the driver's license. The CarMax employees scanned the driver's license, using a DLR scanner that reads the information embedded in the bar code on the back of the license. The scanner's results are pass, fail, or expired. Defendant's proffered driver's license failed the scanner. The driver's license failed the second time it was scanned. There was no holograph on the driver's license under ultraviolet light. A third attempt was made to verify the license using a computer program, "Computer Vehicle Registration," that allows access to DMV records. The issue date on the driver's license did not match the issue date in DMV records. After CarMax employees were unable to verify the authenticity of the driver's license, they concluded the license was forged and they called the police because they suspected defendant was trying to purchase a vehicle fraudulently.
When the first police officer arrived, defendant attempted to leave the CarMax but he was stopped and handcuffed. The other man with defendant ran away and was not apprehended. A second police officer questioned defendant and asked him his name and date of birth. After claiming he was T.G. two or three times, defendant gave his real name. When the second officer began to conduct a patdown of defendant for weapons, a baggie containing one ounce of methamphetamine fell down defendant's pant leg and landed next to defendant's shoe.
Before defendant was transported to the police station for booking, he was searched incident to his arrest and the police found a passport and social security card bearing the name T.G., a driver's license or identification card with defendant's actual name, and $956 in cash.
The real T.G. testified his passport, driver's license, and social security card were missing. T.G. identified the driver's license as his, but the photograph and signature had been altered. T.G. identified his social security card and passport. T.G. said he never applied for a car loan and none of the information on the loan application packet was accurate for him. T.G. did not know defendant and never gave defendant permission to use any of his documents.
On January 14, 2015, a jury convicted defendant of four offenses: (1) second degree burglary (§ 459), (2) possessing a forged driver's license to facilitate a forgery (§ 470b), (3) attempted grand theft of a 2007 Cadillac (§§ 664/487, subd. (d)(1)), and (4) possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court found true various special allegations. After the court denied defendant's motion to dismiss his prior strike conviction, the court sentenced defendant to a total of 14 years four months in state prison. (See Munoz I, supra, E063620, p. 2.)
On May 2, 2017, defendant filed a petition to recall his sentence and for redesignation of his sentence pursuant to Proposition 47, seeking to reduce his second degree burglary, possessing a forged driver's license to facilitate a forgery, and attempted grand theft auto offenses to misdemeanors. Defendant argued the attempted grand theft auto offense constituted a petty theft under section 490.2 because nothing was taken and therefore he could not have exceeded the $950 amount. He also contended that his conviction for possessing a forged driver's license to facilitate a forgery is an offense enumerated under section 473 and the amount had not exceeded the $950 amount. Defendant further asserted that because the loan documents had no face value or signature, they were worthless and, thus, the value did not exceed $950. In addition, defendant claimed that his offenses met the definition of larceny under section 459.5, that he entered the car dealership while it was open, and that he did not exceed the $950 amount because a forged driver's license alone cannot exceed the amount since the check included in the loan package was unsigned and had no face value. He also argued that because both offenses stemmed from the same incident, the grand theft auto constitutes "as shoplifting" and therefore he cannot also be charged with burglary.
A hearing on defendant' s petition was held on July 7, 2017. At the outset of the hearing, defense counsel provided the trial court with a copy of this court's opinion in defendant's prior appeal, case No. E063620, which noted the value of the 2007 Cadillac as $17,000. Defense counsel then argued that defendant's offenses were eligible for relief under Proposition 47, because the value at issue was not more than $950. Defense counsel explained that defendant never took possession of the vehicle and was convicted only of an attempt. Therefore, he had not taken any property, and the loan transaction never took place. The prosecutor contended the forgery offense was not "one of the enumerated felonies that's eligible for reduction," and the felony burglary was completed when defendant entered the car dealership intending to steal a car valued at over $950, regardless of whether he ever gained possession of the vehicle.
The trial court denied defendant's petition for resentencing and reduction of his offenses to misdemeanors, finding defendant's offenses ineligible for redesignation as misdemeanors. The court explained: "I think the exclusion, even though the statute may not specifically indicate that [it applies to attempts], I think the clear intent was for certain categories of crimes where there's a theft or attempted theft of less than $950 to treat those as misdemeanors. [¶] Otherwise, you can have an attempted grand theft of, you know, millions of dollars and say, 'Well, that's a misdemeanor now.' I don't think that's what the law was intended. [¶] So the Court finds that due to the amount of attempted theft and the fact that forged driver's license, [section] 470[b] is not eligible."
On July 28, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
On November 4, 2014, voters enacted Proposition 47, which made certain crimes misdemeanors that previously had been felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Specifically, the proposition added or amended sections 459.5, 473, 476a, 490.2, 496, 666, and Health and Safety Code sections 11350, 11357, 11377. Proposition 47 also added, among other statutory provisions, Penal Code section 1170.18. (People v. Contreras (2015) 237 Cal.App.4th 868, 889-890.)
Section 1170.18 allows persons previously convicted of felonies that would be misdemeanors under Proposition 47 to petition for resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 878-879 (Sherow).) As pertinent here, Proposition 47 permits a felon serving a sentence for second degree burglary of a commercial establishment—shoplifting—and/or grand theft or forgery relating to a check or money order to petition the court for resentencing as a misdemeanant if the value of the property taken was $950 or less. (§§ 459.5, 473, 490.2.) Section 490.2, subdivision (a), provides 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," unless the defendant has one or more disqualifying prior convictions. Section 487, subdivision (d)(1), specifies that "[g]rand theft" is committed when the property taken is "[a]n automobile."
Proposition 47 does not expressly mention attempts. Without deciding the issue, we follow the trial court's assumption that attempted grand theft auto is subject to the proposition. A number of courts have concluded that a defendant bears the initial burden of showing eligibility for resentencing under Proposition 47, including the value of the property at issue. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136-137; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450; Sherow, supra, 239 Cal.App.4th at pp. 878-880.) That is because " ' "[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense he is asserting." ' " (Sherow, at p. 879; see Evid. Code, § 500.) Here, defendant was ineligible for Proposition 47 relief because the value of the property exceeded $950.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.