Opinion
G051749
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIENNE NUNN, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER DENYING REHEARING PETITION AND MODIFYING OPINION; CHANGE IN JUDGMENT
The opinion filed herein on March 22, 2017, is hereby modified in the following particulars:
1. On the caption page, delete the sentence that reads, "Affirmed in part and reversed in part" and replace it with, "Affirmed in part, reversed in part, and remanded."
2. In the first paragraph on page 2, delete the second sentence that begins with, "Following our first two opinions" and replace it with, "We find appellant's felony convictions for burglary and unlawful acquisition of credit card information are eligible for a reduction to misdemeanors under Proposition 47. Accordingly, we reverse the trial court's rulings to the contrary and remand for further proceedings."
3. Under the DISCUSSION heading on page 2, replace the citation to "People v. Nunn (date, G051741) [nonpub. opn.] (Nunn II)" with, "People v. Nunn (Mar. 22, 2017, G051741) [nonpub. opn.] (Nunn II)."
4. Under the DISCUSSION heading on page 2, delete the last two sentences of the paragraph (beginning with "For the reasons explained . . .") and replace with the following:
"For the reasons explained in those decisions, we find appellant is entitled to Proposition 47 relief for her burglary conviction."
5. Under the DISCUSSION heading on page 2, after the first full paragraph, add the following new paragraph:
"As for appellant's conviction for unlawful acquisition of credit card information under Penal Code section 484e, subdivision (d), the California Supreme Court recently decided Proposition 47 reduces the punishment for that offense, so long as the value of the information does not exceed the $950 limit set forth in Penal Code section 490.2. (People v. Romanowski (Mar. 27, 2017, S231405) ___ Cal.5th ___ .) The court also made clear valuation turns on the reasonable and fair market value of the information in question. (Ibid.) In this case, the court rejected appellant's request to reduce her conviction for unlawful acquisition of credit card information without getting into the issue of valuation. Under these circumstances, we agree with the parties the matter must be remanded for an evidentiary hearing on this issue."
6. Under the DISPOSITION heading on page 3, delete all the text and replace it with: "The trial court's order respecting appellant's petition for relief under Proposition 47 is reversed to the extent it denied appellant's request to reduce her convictions for burglary and unlawful acquisition of credit card information to misdemeanors. The matter is remanded for the court to conduct an evidentiary hearing on the value of the credit card information appellant unlawfully acquired. In all other respects, the order is affirmed."
This modification DOES effect a change in judgment.
The petition for rehearing is DENIED.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.
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. 05NF4284) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Affirmed in part and reversed in part. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
This is the third time we have addressed appellant's entitlement to Proposition 47 relief for crimes arising out her unauthorized use of a credit card. Following our first two opinions, we hold Proposition 47 applies to appellant's conviction for second degree commercial burglary, but it does not apply to her conviction for unlawful acquisition of credit card information.
FACTUAL AND PROCEDURAL BACKGROUND
On November 1, 2005, appellant used a stolen credit card to acquire a hotel room in Anaheim. Based on that incident, she was charged with, and ultimately pleaded guilty to, one count each of second degree commercial burglary, unlawful acquisition of credit card information and fraudulent use of a credit card. (Pen. Code, §§ 459, 460, subd. (b), 484e, subd. (d) & 484g.) In 2014, following the passage of Proposition 47, she petitioned to have her convictions for burglary and unlawful acquisition of credit information reduced to misdemeanors. However, the trial court denied her petition.
Appellant's third conviction involving fraudulent use of a credit card was already a misdemeanor because the amount involved in that offense was less than $400. (See former Pen. Code, § 484g.) --------
DISCUSSION
Contending the trial court erred in denying her petition, appellant asserts she is entitled to have her burglary conviction reduced to misdemeanor shoplifting (Pen. Code, § 459.5) and her credit card conviction reduced to misdemeanor theft (Pen. Code, § 490.2). Appellant sought similar relief in her prior appeals, which involved nearly identical factual and procedural circumstances. (See People v. Nunn (Mar. 22, 2017, G051742) [nonpub. opn.] (Nunn I) & People v. Nunn (date, G051741) [nonpub. opn.] (Nunn II). For the reasons explained in those decisions, we find appellant is entitled to Proposition 47 relief for her burglary conviction, but not her conviction for unlawful acquisition of credit card information. Neither party has advanced any new arguments or cases to justify a different result.
DISPOSITION
The trial court's order respecting appellant's petition for relief under Proposition 47 is reversed to the extent it denied appellant's request to reduce her felony conviction for second degree commercial burglary to misdemeanor shoplifting under section 459.5. In all other respects, the order is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.