Opinion
C059543.
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. JESS FERRIN SCHILBER, Defendant and Appellant.
Not to be Published
A jury found defendant Jess Ferrin Schilber guilty of receiving stolen property. (Pen. Code, § 496, subd. (a); undesignated section references are to this code.) The court found true special allegations that defendant committed the offense while released on bail (§ 12022.1) and served two prior prison terms (§ 667.5, subd. (b)). The court denied defendants request to reduce the offense to a misdemeanor, denied probation, and sentenced defendant to an aggregate sentence of five years and eight months in state prison.
On appeal, defendant contends the courts denial of his motion to reduce the conviction to a misdemeanor was an abuse of discretion. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant dated Tamara Murdock and lived with her on and off for several months. After they broke up, defendant no longer had a key to Murdocks residence (a motel room), nor did he have permission to be there or take any of her belongings.
On January 28, 2008, Murdock and defendant left Murdocks motel room and dropped defendant off at the home of his daughter, Moriah, in Anderson, California. When Murdock returned home, she received several telephone calls from defendant. She decided to spend the night at a friends house.
On January 29, 2008, Anderson Police Officer Scott Bailey pulled a car over in which defendant was a passenger. Defendants eyes were red, bloodshot and watery, and he smelled strongly of alcohol. Defendant initially falsely identified himself, but later provided his real name. He was holding an external computer drive in his lap and his feet were resting on a laptop computer lying on the floorboard of the car. There was a DVD player near the laptop. Bailey also found a checkbook with Murdocks name on the checks. Defendant told Bailey the electronic items were his and gave Bailey permission to give the items to the driver of the car. He said the checks belonged to his girlfriend. Bailey arrested defendant, booked the checkbook into evidence, and gave the electronic items to the driver.
When Murdock returned home on January 29, 2008, she discovered someone had broken in and stolen her checkbook and various electronic items, including a telephone, DVD player, and laptop computer. Murdock contacted the police. She also made another telephone call and, within eight hours, the electronic items were returned. The checkbook was also eventually returned to her.
Defendant was charged with first degree residential burglary (count 1) and receiving stolen property (count 2). It was specially alleged that he was released on bail during the commission of those crimes, and that he served two prior prison terms. The jury found defendant not guilty of count 1, but guilty of count 2.
Prior to sentencing, defendant requested that the court reduce the receiving stolen property offense from a felony to a misdemeanor. The court denied the motion and sentenced defendant to the middle term of two years, plus three consecutive years for the enhancements.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court should have reduced the receiving stolen property offense to a misdemeanor because the value of the item possessed — i.e., the victims checkbook — did not exceed $400. In the alternative, defendant claims that the trial court should have imposed the lower rather than the middle term because the value of the checkbook was "minimal." We disagree.
Pursuant to section 496, subdivision (a), a person charged with receipt of stolen property may be punished "by imprisonment in a state prison, or in a county jail for not more than one year." Because the offense may be punished alternatively either as a felony or a misdemeanor, it is known as a "wobbler," and is deemed a felony unless charged as a misdemeanor or reduced to a misdemeanor by the sentencing court under section 17, subdivision (b). (People v. Statum (2002) 28 Cal.4th 682, 685.)
We review for abuse of discretion the trial courts decision whether or not to reduce a "wobbler" from a felony to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981.)
Here, defendant was charged with felony receipt of stolen property, namely the victims "personal checks, laptop computer, telephone, [and] DVD player . . . ." The jury found him guilty as charged. In support of the motion to reduce the offense to a misdemeanor, defense counsel argued that the only evidence of stolen property at trial was the checkbook, noting that the electronic equipment found in defendants possession when he was arrested was never linked directly to the victim and was indeed given to the driver of the car in which defendant was a passenger. In any event, she argued, there was no testimony that any of the stolen items had a value in excess of $400.
The trial court disagreed. Noting that the jury found defendant guilty of felony receipt of stolen property, the court concluded, "Theres every reason to believe beyond a reasonable doubt that [the defendant] received more than just the checkbook . . .," including defendants written statements to probation that "I had no intent to keep my girl friends [sic] things" and "the things I barrowed [sic] were not worth [$]400.00 much less." The court also found defendants criminal history to be highly relevant to its consideration. That history begins with a theft-related offense in 1976 in Oregon, and continues with the following: a theft-related offense in 1992 in Montana; two instances of probation violation in Montana (one resulting in a 10-year prison sentence); a conviction in Montana in 1996 for bail jumping which resulted in a five-year prison sentence; and two felonies, one a theft-related offense, in California in 2003 resulting in a four-year prison sentence. The court found defendant had not "dealt well with authority through the years," had "engaged in theft-related conduct" regularly, was "a dismal failure on probation and on parole" and, despite several stints in prison, had not utilized opportunities to "straighten himself out." Given those facts, the courts denial of defendants request was not an abuse of discretion.
Defendant argues the only item he was proved to have possessed was the victims checkbook and, given the absence of proof that the checkbook had a value in excess of $400, the offense should have been reduced to a misdemeanor under section 496, subdivision (a). Defendant misconstrues the statute.
Section 496 permits the district attorney or the grand jury to charge an offense as a misdemeanor where the value of the property does not exceed $400. (§ 496, subd. (a).) The language is permissive, not mandatory, and first requires a determination that reduction to a misdemeanor "would be in the interest of justice . . . ." (§ 496, subd. (a).) In any event, the charging decision is one for the prosecuting entity, to be made prior to the courts exercise of its jurisdiction over the defendant. There is nothing in the language of the statute, nor are we aware of any authority otherwise, that compels the trial court to reduce the receipt of stolen property offense to a misdemeanor based on a finding, or as in this case a lack thereof, as to the value of the property.
Defendant also claims the trial courts consideration of information regarding the theft of the electronic items in choosing the middle term sentence was a violation of Blakely v. Washington (2004) 542 U.S. 296 because that information was never presented to, nor found true by, the jury. Assuming defendant did not forfeit his claim for failure to raise it below (People v. Saunders (1993) 5 Cal.4th 580, 589-590), the claim lacks merit.
Following the decision of the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 that Californias determinate sentencing law violated the Sixth Amendment, the Legislature amended the law to eliminate the constitutional infirmity. (See People v. Sandoval (2007) 41 Cal.4th 825, 831, 845 (Sandoval).) Under the prior version of the law, a sentencing court was required to "order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Former § 1170, subd. (b).) Based on this provision, the United States Supreme Court determined the middle term was the maximum term that could be imposed based on the jurys verdict or the defendants admissions in a plea, and the imposition of an upper term based on the trial courts finding of aggravating circumstances beyond any facts found by the jury or admitted by the defendant violated the defendants Sixth Amendment right to a jury trial. (Sandoval, supra, at pp. 836-837.) The Legislature eliminated this constitutional problem, however, when it amended the determinate sentencing law to give the sentencing court the discretion to determine which of the three terms of imprisonment to impose, without the middle term being the presumptively correct term. (See § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"].) As a result of the amendment, the upper term, not the middle term, is the statutory maximum that may be imposed without additional fact finding. (Sandoval, supra, at pp. 850-851.)
The amended version of section 1170, subdivision (b) became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.) Because defendant was sentenced to the middle term on June 27, 2008, well after the amendment became effective, Blakely has no application here. The trial courts sentencing of defendant was in compliance with the requirements of amended section 1170, subdivision (b), and did not violate defendants federal constitutional rights under Blakely. We find no error here.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
ROBIE, J. --------------- Notes: The sentence included a consecutive term of eight months pursuant to defendants guilty plea to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in a separate case (case No. 08F126).