Opinion
C082190
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH OLIVARES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20160003376)
Defendant Joseph Olivares pleaded no contest to grand theft of personal property over $950. (Pen. Code, § 487, subd. (a).) On appeal, defendant challenges the trial court's denial of his petition for resentencing under Proposition 47. We affirm the judgment.
Unspecified statutory references are to the Penal Code.
"On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce felonies to misdemeanors.
FACTUAL AND PROCEDURAL BACKGROUND
The facts, taken from the factual basis for defendant's plea as stated by the prosecution, are as follows:
On January 2, 2016, defendant and his codefendant, Donald Zachary, entered a Kohl's store in Stockton and shopped together for approximately 45 minutes. The store's loss prevention officer observed the two men take numerous items out of the store's rear emergency exit without paying for them. Both men got into a waiting getaway vehicle and fled the scene. The parties stipulated the "total value of the items stolen between them was $1,329."
Defendant and codefendant Zachary were charged with grand theft of personal property over $950 (§ 487, subd. (a)--count 1) and conspiracy to commit grand theft of personal property over $950 (§§ 182, subd. (a)(1) & 487, subd. (a)--count 2).
At the change of plea hearing on May 19, 2016, prior to entry of defendant's plea, defendant's counsel stated, "We want to make it clear that we believe there's an open issue with some Prop 47 here, and so we're not going to waive [defendant's] appellate rights." Unsure of the appropriate timing for a Proposition 47 petition, defendant's counsel made an oral petition requesting that the court reduce the charge of grand theft of personal property over $950 (§ 487, subd. (a)) to a misdemeanor pursuant to Proposition 47, arguing defendant stole personal property with a value less than $950 despite that the aggregated value of the property stolen by both defendant and his codefendant exceeded $950. The court denied the petition stating: "I guess the argument by the People is this was $1,300 collectively and that's why the conspiracy charge has been filed. It's my understanding there's not any current case law indicating how this is to be treated when defendants are together, they're charged by way of conspiracy. So at this point I will deny the Prop 47 motion petition [sic] based on those facts."
Thereafter, defendant entered a negotiated plea of no contest to the charge of grand theft in exchange for dismissal of the remaining count and a grant of five years of informal probation and eight months in county jail.
The trial court granted defendant five years of informal probation and ordered him to serve eight months in county jail, consistent with defendant's negotiated plea.
Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.
DISCUSSION
Defendant contends the trial court erred in denying his preplea motion to reduce his grand theft charge to a misdemeanor pursuant to Proposition 47 because it was improper to aggregate the value of the merchandise defendant stole with that stolen by his codefendant, Zachary. Conceding the theft, defendant asserts his claim is cognizable on appeal because the state had no right to consolidate the amounts and charge him with a felony and thus his plea to felony grand theft is "a legally impossible admission." In the alternative, he claims his trial counsel rendered ineffective assistance for failing to preserve the issue for appeal.
The People argue defendant's claim is not cognizable on appeal because he entered a negotiated plea of no contest to grand theft and admitted he stole personal property with a value of more than $950 and therefore his claim is nothing more than a claim of insufficient evidence. Such a claim, they argue, is precluded from appellate consideration, with or without a certificate of probable cause, by section 1237.5. The People further argue defendant's claim of ineffective assistance of counsel lacks merit because defendant cannot show his counsel's performance was deficient or that he was prejudiced by the deficient performance.
Defendant counters he pleaded no contest to grand theft, "but agreed only that the total value of the merchandise taken by him and [his codefendant] was $1[,]329, not that he personally took clothing worth more than $950." Thus, the trial court "accepted a plea to a crime he did not commit, a legal impossibility."
Defendant's claim that denial of his Proposition 47 petition was error is untenable for several reasons. First, the version of section 1170.18 that was in effect at the time of defendant's petition to reduce his felony to a misdemeanor provided that any defendant "currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing" under the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, former subd. (a), italics added; see People v. Davis (2016) 246 Cal.App.4th 127, 138.) Defendant made his Proposition 47 petition prior to entry of his no contest plea and prior to imposition of his sentence. That is to say, he was neither convicted nor "currently serving a sentence" at the time of the petition. The petition was therefore premature.
Next, even assuming the timeliness of the petition, the offenses Proposition 47 reduced to misdemeanors did not include grand theft of personal property more than $950. (§§ 487, 1170.18, subd. (a).) While one of the enumerated offenses, section 490.2, provides that theft of personal property with a value that does not exceed $950, "shall be considered petty theft and shall be punished as a misdemeanor," defendant was neither charged with nor did he plead no contest to that offense. Instead, defendant pleaded no contest to the charge of grand theft of personal property more than $950. (§ 487.)
Defendant claims he pleaded no contest to grand theft, "but agreed only that the total value of the merchandise taken by him and [his codefendant] was $1[,]329, not that he personally took clothing worth more than $950." The record does not bear out that claim. When taking the plea, the court stated, "As to Count Number 1 of the complaint, . . . charging you in Count Number 1 with grand theft of personal property, over $950 . . . in violation of [section] 487[, subdivision] (a), a felony, property being jewelry and clothing belonging to Kohl's," and asked defendant, "What is your plea, sir?" Defendant responded, "No contest," with no qualification regarding the value. The factual basis accepted by defendant "for purposes of plea" stated "[t]he total value of the items stolen between [defendant and his codefendant] was $1,329," but was silent as to the value of the property stolen by either defendant individually. A defendant has the burden of establishing the value of the property stolen. (People v. Sherow (2015) 239 Cal.App.4th 875.) If defendant did not wish to admit to having stolen property valued in excess of $950, his remedy was either to enter into an agreement to plead to a lesser offense or withdraw his plea and proceed to trial where he could then offer evidence establishing the value of the stolen property. He did neither; instead, he agreed to be convicted as charged.
As the People aptly note, defendant's claim is in essence a claim that there is insufficient evidence to support his conviction for grand theft of personal property over $950, a claim which is not cognizable on appeal with or without a certificate of probable cause. (People v. Palmer (2013) 58 Cal.4th 110, 114; People v. Thurman (2007) 157 Cal.App.4th 36, 43 (Thurman) ["A guilty plea ' "concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt." [Citation.] Thus, a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility . . . .' [Citation.]"].)
Moreover, the preplea discussion between the parties and the court regarding the value of the stolen property and defendant's opinion that aggregation of the property stolen by defendant and his codefendant was improper does not render a claim cognizable that would otherwise not be cognizable. "An issue which is not cognizable on appeal following a guilty plea cannot be made cognizable by agreement of the parties or by the issuance of a certificate of probable cause." (Thurman, supra, 157 Cal.App.4th at p. 43.) Notwithstanding defendant's representation that the trial court "agreed with defense counsel that [defendant] 'did steal under $950' " and that defense counsel agreed to the factual basis " 'for purposes of plea only,' " there was no evidentiary hearing or stipulation by the parties establishing the value of the stolen property was less than $950 and no implied agreement that defendant could so argue on appeal in spite of his plea otherwise. Again, defendant's remedy was to file a motion to withdraw his no contest plea. (Id. at p. 42.)
Defendant contends section 1237.5 allows him to appeal from a judgment of conviction upon a no contest plea where he has shown "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" and the trial court has issued a certificate of probable cause for such appeal. (§ 1237.5, subd. (a).) He claims that, because the state had no right to consolidate the amounts stolen so as to charge him with felony grand theft, his plea was a "legally impossible admission," which questions the legality of the proceedings and thus may be challenged on appeal. As support for this claim, defendant cites People v. Soriano (1992) 4 Cal.App.4th 781, 783 (Soriano).
In Soriano, the defendant was charged with and pleaded no contest to forging an instrument--a death certificate--in violation of section 115, for which the trial court suspended imposition of sentence and placed him on three years' probation. (Soriano, supra, 4 Cal.App.4th at p. 783.) On appeal, defendant claimed his plea was fatally defective because a death certificate is not an "instrument" within the meaning of section 115. The defendant claimed he should have been charged with and would have pleaded guilty to forgery (§ 470), a " 'wobbler,' " which may be reduced to a misdemeanor upon successful completion of probation pursuant to section 17, subdivision (b)(3). (Soriano, at p. 783.) The People agreed the defendant's plea was fatally defective, but argued the defendant could not appeal from his conviction because he failed to show jurisdictional grounds going to the legality of the proceedings as required by section 1237.5. (Soriano, at p. 784.)
In deciding what constitutes " 'reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,' " the appellate court noted the rule that " 'a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility' " and "[a] defendant 'cannot admit the sufficiency of the evidence by pleading guilty and then question the evidence by an appeal under section 1237.5 of the Penal Code.' [Citation.]" (Soriano, supra, 4 Cal.App.4th at p. 784.) The court concluded the defendant's appeal was not an impermissible challenge to the sufficiency of evidence, but rather a "legal impossibility" because the defendant could not have been guilty of attempting to file a forged instrument in violation of section 115 given that, "as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115." (Soriano, at p. 784.) Noting the defendant was "neither trifling with the courts [citation] nor attempting to have it both ways [citation]," the Court of Appeal found the defendant "has properly challenged his plea of nolo contendere on appeal and the Attorney General concedes it was defective." (Id. at p. 786.)
Soriano is distinguishable. Here, the People make no concession that defendant's no contest plea was fatally defective or that his admission was legally impossible. Instead, the People argue that, while defendant asserted that aggregation of the value of goods stolen by him and his codefendant was improper, defendant thereafter pleaded no contest to theft of personal property over $950 thereby admitting there was sufficient evidence to prove beyond a reasonable doubt that he stole property valued in excess of $950. In exchange for defendant's plea, the People dismissed the conspiracy count against him, a conviction for which he would likely have suffered a greater penalty had he proceeded instead to trial.
Defendant has provided no authority demonstrating it was a "legal impossibility" for him to be guilty of violating section 487. The cases cited by defendant deal with an individual defendant convicted of check forgery in violation of section 473 (see People v. Hoffman (2015) 241 Cal.App.4th 1304, 1308, 1310 [the People conceded § 473 "does not authorize the trial court to aggregate check values"; "[t]he misdemeanor/felony characterization for forgery depends 'on the value of the check' or other instrument"]); an individual defendant convicted of grand theft of multiple vehicles in violation of section 487 (see People v. Whitmer (2014) 59 Cal.4th 733, 741-742 [Supreme Court's interpretation of the Bailey doctrine holding 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" could not be retroactively applied to the defendant "given the numerous, and uncontradicted, Court of Appeal decisions over a long period of time that reached a [contrary conclusion]" and because the holding constitutes "an unforeseeable judicial enlargement of criminal liability for multiple grand thefts"]); and codefendants convicted of forging checks in violation of section 470 (see People v. Salmorin (2016) 1 Cal.App.5th 738 [denial of Proposition 47 petition reversed due to trial court's error in aggregating value of numerous checks forged by the defendant]). None of the cases on which defendant relies address the issue of multiple defendants convicted of section 487.
People v. Bailey (1961) 55 Cal.2d 514. --------
By pleading no contest to theft of personal property in excess of $950 and thereafter characterizing his plea as "legally impossible" and claiming he should receive the benefit of having pleaded no contest to theft of personal property less than $950, defendant is indeed trifling with the courts and attempting to have it both ways. We reject defendant's attempt to flout the plea bargaining process, and we conclude defendant's thinly-veiled claim of insufficient evidence is not cognizable on appeal.
Defendant claims his trial counsel was ineffective for proceeding with the plea instead of "submitting the case for trial on stipulated facts in order to preserve the issue on appeal." We reject this claim as well. To establish a claim of ineffective assistance of counsel, a defendant must prove: (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficiency resulted in prejudice to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) "Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.) An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687 .)
"[A] conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.) " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.] [¶] In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
We need not strain to find a rational tactical purpose for defense counsel to proceed as he did with the plea proceedings. Defendant was charged with grand theft of personal property over $950 (§ 487, subd. (a)) and conspiracy to commit grand theft of personal property over $950 (§§ 182, subd. (a)(1) & 487, subd. (a)). Had defendant proceeded to trial and failed to convince a jury that there was insufficient evidence to demonstrate the value of the stolen property was more than $950, he would have been subject to two felony convictions resulting in a more severe sentence. Instead, he received five years' probation and 240 days in county jail. Presumably, defense counsel presented the various options to defendant, who weighed those options and chose to enter a plea. Defendant's argument that his attorney should have submitted the case for trial on stipulated facts assumes the People would have been willing to stipulate that the value of the property stolen by defendant was less than $950, an assumption that seems highly unlikely given the People's position both at the trial court and on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur:
/s/_________
Nicholson, J.
/s/_________
Hull, J.