Opinion
D076945
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JAZONTAE KRISHON WINSTON, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273017) APPEAL from an order of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
On July 15, 2017, defendant Jazontae Krishon Winston had a fight with friends. During the fight, defendant punched J.M. on the back of his head. Defendant was arrested. Then, on July 17, 2017, defendant took J.M.'s wallet and tried to use his debit card at an ATM. Defendant was again arrested.
In an amended four-count information filed on January 25, 2018, as relevant here the San Diego County District Attorney charged defendant with misusing personal identifying information in violation of Penal Code section 530.5, subdivision (a), and with battery in violation of section 242. A jury found defendant guilty of battery but could not reach a verdict on the remaining three counts, including the count alleging misuse of personal information. The trial court refused to dismiss those counts.
All further statutory references are to the Penal Code unless otherwise specified.
Subdivision (a) of section 530.5 provides: "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 . . . ." --------
On April 9, 2018, defendant pleaded guilty to misusing personal information and the trial court dismissed the balance of the charges. Defendant was placed on a five years formal probation, with 180 days in jail stayed pending successful completion of probation. On September 24, 2019, defendant admitted he violated probation for the third time. His probation was revoked. He was reinstated on probation and ordered to serve 270 days in jail.
On November 6, 2019, defendant filed a motion to have his conviction under section 530.5, subdivision (a) reduced to a misdemeanor. The court denied the motion. An amended notice of appeal was filed December 18, 2019.
ANALYSIS
As presented in his opening brief, defendant's sole issue on appeal is that his conviction for misusing personal information under 530.5, subdivision (a) should be reduced to a misdemeanor shoplifting conviction pursuant to section 459.5, subdivision (b), which provides: "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."
At the time defendant filed his opening brief, the issue he raises was pending in the California Supreme Court. On March 2, 2020, our high court resolved the issue against defendant's position, finding that the misuse of personal identifying information does not constitute a theft crime and does not qualify on that basis for reduction to a misdemeanor. (People v. Jimenez (2020) 9 Cal.5th 53.)
Given the clarification of the law, defendant's position must be rejected as we are bound to follow the decisions of our high court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The order is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.