Opinion
E063340
11-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DEAN WRIGHT, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Karl T. Terp, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI801695) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed with directions. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Anthony Dean Wright pled guilty to theft from an elder or dependent adult. (Pen. Code, § 368, subd. (d).) The parties stipulated that the police reports provided a factual basis for the plea. In accordance with the agreement, a trial court sentenced defendant to two years in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed a petition for resentencing, pursuant to section 1170.18 (Proposition 47). The court found him ineligible for relief and denied the petition. Defendant appealed from the denial of his petition, arguing that the failure to apply Proposition 47 to his conviction violated his equal protection rights. In our original opinion, we agreed with the trial court's decision.
The California Supreme Court has now ordered that we vacate our previous opinion in this matter and reconsider the cause in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). We invited the parties to file supplemental briefs. Defendant argues that, in light of Romanowski, an equal protection claim is no longer necessary to compel redesignation. Instead, he contends that the holding in Romanowski compels the conclusion that a conviction of theft from an elder, like any other theft, should be designated a misdemeanor if the value of the property taken does not exceed the $950 threshold of section 490.2. He claims that because the value in this case was below that amount, this court should reverse the trial court's order and redesignate his conviction a misdemeanor.
Having reconsidered the cause in light of Romanowski, we again conclude that the trial court's order denying defendant's Proposition 47 petition should be affirmed. We also direct the court to dismiss count 1.
PROCEDURAL BACKGROUND
On August 25, 2008, defendant was charged by felony complaint with theft by use of an access card (§ 484g, subd. (a), count 1) and theft from an elder or dependent adult (§ 368, subd. (d), count 2).
On September 9, 2008, defendant entered a plea agreement and pled guilty to count 2. In accordance with the agreement, the court sentenced him to two years in state prison.
On January 22, 2015, defendant filed a petition for resentencing, pursuant to section 1170.18. He filed a memorandum of point and authorities in support of his petition, arguing that his offense of theft from an elder (§ 368, subd. (d)) was a theft offense and should be treated the same as other theft offenses with regard to Proposition 47. He also argued that his equal protection rights would be violated if he was punished more harshly than someone who stole an equal sum of money "from someone of a slightly younger age."
The court held a hearing on defendant's motion on April 10, 2015. At the outset of the hearing, defense counsel stated, "I believe we can agree that the . . . value of the property taken is less than $950." He then proceeded to argue that a violation of section 368 was essentially a theft offense; thus, since the amount of loss was less than $950, the conviction should be reduced to a misdemeanor, under a liberal interpretation of Proposition 47. The court distinguished defendant's offense, noting that the elderly were a protected group of people. It then asserted that section 368 was not enumerated in Proposition 47, and that "it would be listed if it was contemplated that theft from a protected group of people would be included in Prop. 47." The court thus denied the petition.
ANALYSIS
I. The Court Properly Found Defendant Ineligible for Relief Under Proposition 47
Defendant claims this court should order that his conviction for a violation of section 484e, subdivision (d) (theft of access card information) be designated a misdemeanor, based upon the Supreme Court's decision in Romanowski, supra, 2 Cal.5th 903. At the outset, we note that defendant's conviction was for theft from an elder (§ 368, subd. (d)), not for theft of access card information. Assuming that defendant meant to refer to his conviction as one for theft from an elder, we conclude that he is not eligible for Proposition 47 relief.
A. Relevant Law
On November 4, 2014, voters enacted Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "Proposition 47 makes certain drug-and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "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." (Id. at p. 1092.)
B. Theft From an Elder is Not Enumerated in Section 1170.18
Among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, are: shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§490.2); and receiving stolen property, where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list section 368, subdivision (d), the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47. Thus, defendant is simply not statutorily eligible for relief under section 1170.18. Defendant previously conceded that Proposition 47 does not include section 368, subdivision (d).
C. Section 368, Subdivision (d) is Not a Theft Offense Within the Meaning of Section 490.2
Defendant argues that theft from an elder (§ 368, subd. (d)) is like any other theft crime, and because the value in the instant case was below the threshold amount of $950, his conviction must be designated a misdemeanor. We disagree.
Defendant's offense was qualitatively different from the theft offenses listed in Proposition 47. He committed a crime against an elder adult, and, as the trial court pointed out, elder adults are a protected group of people. Section 368, subdivision (a), provides that "[t]he Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, . . ." (See People v. Eastburn (2010) 189 Cal.App.4th 1501, 1506 ["The elder abuse law is intended to provide special protection for elder adults, whose advanced age may render them particularly susceptible to criminal opportunists."]) Thus, there is a rational basis for treating defendant's offense more harshly than other theft offenses. (See People v. Alvarez (2001) 88 Cal.App.4th 1110, 1116 [finding the rational basis test applicable to equal protection challenge involving "an alleged sentencing disparity"].)
Furthermore, section 368 is not primarily a theft statute. Instead, it is an elder abuse statute, with subdivision (d) merely specifying one form of abuse. Other forms of abuse listed in section 368 include causing or permitting an elder adult to suffer, inflicting unjustifiable pain on an elder adult, endangering an elder adult's health, and committing the false imprisonment of an elder adult. (§ 368, subds. (b), (c) & (f).) We note that the Legislature did not group the elder abuse statute with the theft statutes, but rather included it in Title 9 of the Penal Code, which is entitled "Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals." Within that title, the Legislature placed it in Chapter 13, which is entitled "Crimes Against Elders, Dependent Adults, and Persons With Disabilities." In contrast, the Legislature placed section 490.2 in Title 13, Chapter 5, which is entitled "Larceny." (See Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 ("The policy sought to be implemented [by a statute] should be respected [citation], and to this end, titles of acts, headnotes, and chapter and section headings may properly be considered in determining legislative intent.")
Defendant relies upon Romanowski, supra, 2 Cal.5th 903, in support of his claim. However, Romanowski involved the question of whether section 490.2 applied to theft of access card information (§ 484e, subd. (d)), not theft from an elder. The Supreme Court concluded that, in light of section 490.2's language and statutory context, the statute's references to " 'obtaining any property by theft' " and " 'any . . . provision of law defining grand theft' " encompassed theft of access card information. (Romanowski, at p. 910.) The Court held that "Proposition 47 broadly reduced punishment for 'obtaining any property by theft' where the value of the stolen information is less than $ 950." (Id. at p. 906; see § 490.2, subd. (a).) One of the People's arguments was that section 484e, subdivision (d), was not subject to section 490.2 because it was not a theft crime, but instead was aimed at consumer protection. However, the Supreme Court pointed out that the Legislature chose to place section 484e in a chapter of the Penal Code titled " 'Theft.' " (Romanowski, at pp. 911-913.) Thus, the Supreme Court found such placement significant.
Section 490.2, subdivision (a), provides in relevant part: "Notwithstanding 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, . . ." --------
In any event, defendant has not shown that the value of the property taken was less than $950. He did not provide any supporting documentation with his petition and did not cite to the record or other evidence. In other words, he failed to satisfy his burden to show that he was eligible for relief. (Romanowski, supra, 2 Cal.5th at p. 916; see People v. Sherow (2015) 239 Cal.App.4th 875, 878 ["[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing."].) Although he previously claimed the parties agreed that the loss did not exceed $950, the record merely shows that defense counsel stated the following in court: "I believe we can agree that the . . . value of the property taken is less than $950." Defense counsel proceeded to present his position that section 368 was included in Proposition 47. However, the court quickly distinguished theft from an elder from other theft offenses and denied the petition. Thus, the record demonstrates that the court never addressed the amount of the loss, and the prosecutor never agreed that it was under $950.
Because defendant's offense is not listed in Proposition 47, his crime involved a member of a protected group of people, and he failed to establish the amount of loss was less than $950, we conclude that the court properly denied defendant's Proposition 47 petition.
II. The Court Inadvertently Neglected to Dismiss Count 1
Although not raised by the parties, we note an apparent clerical error. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court "has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." (In re Candelario (1970) 3 Cal.3d 702, 705.)
At the sentencing hearing, the trial court expressly stated its understanding of the terms of the plea agreement to be that defendant would plead guilty to one count of section 368, subdivision (d), that he would be given two years in state prison, and that "all other counts and allegations would be dismissed." The court proceeded to directly examine defendant regarding the plea form and concluded that he understood the nature of the charges, all consequences and punishments for the offenses, and his constitutional rights. Defendant pled guilty, and the court thereafter sentenced him to a total sentence of two years, as agreed upon. The court, however, failed to dismiss count 1 in its oral pronouncement of judgment. Notwithstanding the oral pronouncement of judgment, the minute order states that count 1 was ordered dismissed. There is no reference to count 1 in the abstract of judgment.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order . . . ." (Id. at p. 387.) Since the court here never actually dismissed count 1, the clerk's notation in the minutes that count 1 was dismissed on the People's motion is inaccurate.
Thus, the record shows that the trial court intended to fully execute the terms of the plea agreement, but inadvertently neglected to dismiss count 1 during the oral pronouncement of judgment. Accordingly, we shall direct the trial court to dismiss count 1. (People v. Schultz, supra, 238 Cal.App.2d at p. 807.)
DISPOSITION
The superior court is directed to dismiss count 1. The superior court clerk is directed to generate a new minute order reflecting that the September 9, 2008 minute order incorrectly states that the court dismissed count 1 at that time, and that the court has now dismissed that count. The clerk is further directed to forward a copy of the new minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.