Opinion
B261625
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRELL THOMPSON, Defendant and Appellant.
Carlos Ramirez for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael Johnsen, Mary Sanchez and Theresa A. Patterson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA095346) APPEAL from an order of the Superior Court of Los Angeles County, Wade Olsen, Commissioner. Reversed and remanded. Carlos Ramirez for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael Johnsen, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General for Plaintiff and Respondent.
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Terrell Thompson appeals the denial of his resentencing petition pursuant to Penal Code section 1170.18. He contends that he is entitled to relief because his grand theft conviction for violating section 484e, subdivision (d) has now been reclassified as a misdemeanor under section 490.2, subdivision (a) (added by Proposition 47).
All further statutory references are to the Penal Code.
In a split opinion, we originally agreed and reversed, holding that the value of the credit card Thompson stole was de minimis as a matter of law. (People v. Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9, 2016, No. S232212.) On August 16, 2017, the Supreme Court transferred the case back to us for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). Upon reconsideration, we reverse and remand for further proceedings consistent with the holding of that case.
FACTUAL AND PROCEDURAL SUMMARY
On August 6, 2011, after using her debit card to pay for gas at a Chevron station, Miriam Golf dropped it on the ground. Thompson was observed picking up the card. Thereafter, Thompson used the card at gas stations on three separate occasions for a total of $210.28. He was charged with two counts of grand theft (§ 484e, subd. (d)) and two counts of second degree commercial burglary (§ 459). On September 1, 2011, Thompson entered a nolo contendere plea to one count of grand theft pursuant to section 484e, subdivision (d) and was sentenced to six years in state prison.
Both parties reference the probation report for these facts. --------
On December 11, 2014, Thompson petitioned for resentencing under section 1170.18, subdivision (a); alternatively, he applied for reduction of his conviction to a misdemeanor under subdivision (f). He declared that he was serving a sentence for the underlying conviction and that he believed the value of the property stolen did not exceed $950. In opposition, the People argued that the conviction rendered him ineligible for relief. The court denied the petition, concluding that Thompson's conviction under 484e, subdivision (d) does not qualify for resentencing under section 1170.18.
DISCUSSION
In November 2014, California voters enacted Proposition 47, which reclassified certain drug- and theft-related offenses as misdemeanors. To effectuate these changes, Proposition 47 added several sections to the Penal Code, including section 490.2. Section 490.2, subdivision (a), provides that "[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor," except where there are certain prior disqualifying convictions.
Proposition 47 also "created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.) Alternatively, section 1170.18, subdivisions (f) and (g) permit certain convicted felons who have completed their sentences to apply to have their qualifying felony convictions designated as misdemeanors. (Rivera, at p. 1093.)
Section 484e, subdivision (d) provides that "[e]very person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft." In Romanowski, supra, 2 Cal.5th at pages 907-914, the Supreme Court held that a person convicted of a section 484e, subdivision (d) offense is eligible for resentencing, so long as the value of the stolen information does not exceed $950. The burden of proving eligibility for resentencing is on the petitioner. (Id. at p. 916.) "[A]n evidentiary hearing may be 'required, if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (Ibid.)
The court in Romanowski, supra, 2 Cal.5th at page 917 also held that "[a]s with any other theft that is punished based on the stolen property's value, 'the reasonable and fair market value shall be the test' for applying section 490.2's $950 threshold. (§ 484, subd. (a).) When stolen access card information lacks a legal market, moreover, courts may consider evidence concerning the potential for illicit sale of the access card information in order to determine its value." "Only in cases where stolen property would command no value on any market (legal or illegal) can courts presume that the value of stolen access information is de minimis." (Id. at p. 915.) The court rejected using the value of any property actually obtained by using the stolen access card information to determine the value of that information. (Id. at p. 914.)
Here, the record does not reflect the value of the stolen access card information. Thus, the matter must be remanded to afford Thompson an opportunity to prove that the value of the information does not exceed $950, in a manner consistent with the procedures approved in Romanowski. Since it is unclear if Thompson is still serving a sentence for the underlying conviction, if he succeeds in proving the value of the stolen information is within the statutory limit, the trial court should consider either resentencing him under section 1170.18, subdivision (b), unless he would pose an unreasonable risk of danger, or designating the conviction a misdemeanor under section 1170.18, subdivision (g).
DISPOSITION
The order is reversed and the case remanded for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
COLLINS, J.