Opinion
F079140
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. CRYSTAL DENISE SILVA, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F11902733)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and DeSantos, J.
-ooOoo-
Crystal Denise Silva (defendant) contends she is entitled to have her conviction for violating Penal Code section 530.5 reduced to a misdemeanor. The California Supreme Court recently held otherwise. Accordingly, we affirm the trial court's denial of defendant's application for reduction.
All statutory references are to the Penal Code. --------
FACTS AND PROCEDURAL HISTORY
Defendant, who was a care provider for the elderly, disabled victim, used the victim's bank card at a gas station, a grocery store, and a fast food outlet. The three transactions totaled just over $300. On June 1, 2011, defendant pled no contest to unauthorized use of personal identifying information of another person (§ 530.5, subd. (a)), commonly known as identity theft. She was sentenced to 16 months in prison, and ordered to pay various fees, fines, and assessments.
On September 25, 2015, defendant petitioned to have her conviction reduced to a misdemeanor pursuant to section 1170.18. Her petition was denied on the ground her conviction did not qualify for reduction. On March 6, 2019, she again petitioned for relief based on an asserted change in the law. Her petition was again denied, although the trial court told her that if the California Supreme Court decided her conviction was eligible for reduction, her matter would be returned to the trial court, which would then grant the petition. Defendant filed a timely notice of appeal from denial of the second petition.
DISCUSSION
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 (Prop. 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."
Also enacted by Proposition 47, section 1170.18, subdivision (f) permits someone who has completed a sentence for a felony that would have been a misdemeanor had Proposition 47 been in effect at the time of the offense, to apply to the trial court to have the felony conviction designated as a misdemeanor. Defendant says her petition under this provision should have been granted, because her violation of section 530.5, subdivision (a) constitutes shoplifting under section 459.5. This is so, she argues, because her conduct — using a stolen bank card to obtain goods valued at less than $950 from commercial establishments — amounted to shoplifting.
As of the time of the hearing on defendant's second petition for reduction and briefing in this appeal, the California Supreme Court had determined that theft of access card account information, in violation of section 484e, is eligible for reduced punishment under section 490.2, subdivision (a), a statute enacted by Proposition 47 that defines petty theft. (People v. Romanowski (2017) 2 Cal.5th 903, 905, 908-910.) The state high court had also determined that entering a bank to cash a stolen check for less than $950 now constitutes shoplifting under section 459.5, and so a defendant convicted of second degree burglary as a result of such conduct may petition for misdemeanor resentencing under section 1170.18. (People v. Gonzales (2017) 2 Cal.5th 858, 862, 864, 876.) Courts of Appeal were divided on the question whether a violation of section 530.5, subdivision (a) could constitute shoplifting under section 459.5, such that a felony conviction of the former statute was reducible, under section 1170.18, to a misdemeanor conviction of the latter statute.
Recently, after briefing was completed in defendant's appeal, the California Supreme Court held that a violation of section 530.5, subdivision (a) does not constitute a burglary or theft offense to which section 459.5 applies; hence, a felony conviction for violating the former statute is not reducible to misdemeanor shoplifting. (People v. Jimenez (2020) 9 Cal.5th 53, 58-59, 61-62.) In reaching this conclusion, the state high court rejected the argument defendant now makes, namely, that Gonzales mandates a contrary conclusion because the conduct on which Jimenez's and defendant's convictions for violating section 530.5, subdivision (a) are based was similar to the conduct that gave rise to Gonzales's burglary conviction. (Jimenez, supra, at pp. 65-66, 67-69.)
Jimenez is dispositive. Defendant was not entitled to have her felony conviction for violating section 530.5, subdivision (a) reduced to a misdemeanor violation of section 459.5.
DISPOSITION
The order is affirmed.