Opinion
F079146
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. PABLO GABINO RIVERA, Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09900537)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
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INTRODUCTION
On February 2, 2009, pursuant to a plea agreement, appellant Pablo Gabino Rivera pled no contest to two felony counts, one count of identity theft in violation of Penal Code section 530.5, subdivision (a), and one count of second degree burglary in violation of section 459. On March 15, 2019, Rivera filed an application pursuant to section 1170.18 for reduction of his felony convictions to misdemeanors pursuant to Proposition 47. The superior court reclassified the second degree burglary conviction, but not the identity theft conviction.
References to code sections are to the Penal Code. --------
Rivera appeals, contending the superior court erred when it failed to reclassify the identity theft conviction. Subsequent to briefing in this case, the California Supreme Court issued People v. Jimenez (2020) 9 Cal.5th 53, 58-59, 61-62, holding that a violation of section 530.5, subdivision (a) does not constitute a theft offense and therefore, is not subject to reclassification. Consequently, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
On December 3, 2008, Rivera entered a Golden1 Credit Union and handed the teller a check belonging to the victim. The teller noticed that the writing appeared to have been traced over and over and the " 'Pay to the order of' " portion was " 'washed' " out and the name "Pablo River" was written into the washed out area.
The teller asked Rivera for his California identification so the credit union could cash the check. The teller then looked up the victim's contact information and contacted the victim. The victim explained she had issued a check to an insurance company for the exact amount shown on the check presented by Rivera; she had issued no check to Rivera.
Police were contacted. Rivera was apprehended on January 25, 2009. Rivera told the officer he had lost his California identification, did not remember going into the credit union, and denied having any check in his possession.
On January 27, 2009, a five count complaint was filed against Rivera. On February 2, 2009, pursuant to a negotiated plea agreement, Rivera pled no contest to second degree burglary and identity theft, in exchange for dismissal of the other three counts.
On March 15, 2019, Rivera filed an application, pursuant to section 1170.18, for reduction of his felony second degree burglary and identity theft convictions to misdemeanors pursuant to Proposition 47. At the April 8, 2019 hearing, the superior court granted the application as to the second degree burglary conviction but denied it as to the identity theft conviction.
Rivera filed a notice of appeal on April 15, 2019.
DISCUSSION
Rivera contends the superior court erred in denying his application under section 1170.18, subdivision (a) to reduce the identity theft conviction to a misdemeanor. He is incorrect.
Section 530.5, subdivision (a) provides, in pertinent part: "Every person who willfully obtains personal identifying information ... 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 ...."
Enacted by initiative measure (Proposition 47) and effective November 5, 2014, section 459.5 provides, as relevant here: "(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). ... Shoplifting shall be punished as a misdemeanor .... [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."
Recently, after briefing was completed in Rivera's appeal, this issue was resolved by the California Supreme Court in Jimenez, which held that a felony conviction for misuse of personal identifying information in violation of section 530.5, subdivision (a) is not a theft offense and cannot be reduced to misdemeanor shoplifting pursuant to Proposition 47. (Jimenez, supra, 9 Cal.5th, at p. 59.) "Section 530.5 criminalizes the willful use of someone's personal identifying information for an unlawful purpose, not an unlawful taking. It is not a theft offense because criminal liability pivots on how the information was used rather than how it was acquired. The offense therefore evinces a concern with the panoply of harms occurring when personal information is no longer personal." (Ibid.) Jimenez further held that section 459.5 "does not encompass misuse of identifying information," and the language of section 459.5 "applies only as to theft or burglary offenses. Section 530.5, subdivision (a) does not define such an offense." (Jimenez, at p. 61.)
Jimenez concluded that "use of the shorthand 'identity theft' to describe the offense in section 530.5 doesn't somehow make the misuse of personal identifying information swallow up elements of the theft offense, nor does it otherwise 'provide a reason to read into the statute an additional element that cannot be found by referring to the language of the statute.' " (Jimenez, supra, 9 Cal.5th at p. 71.)
Jimenez is dispositive. Rivera was not entitled to the benefit of Proposition 47 and section 459.5 in connection with his identity theft conviction under section 530.5, subdivision (a).
Consequently, the trial court did not err in denying Rivera's section 1170.18 application that requested reduction of the identity theft conviction to a misdemeanor.
DISPOSITION
The order is affirmed.