Opinion
F077800
05-22-2020
THE PEOPLE, Plaintiff and Appellant, v. ROBERTO ZARAGOZA, Defendant and Respondent.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Appellant. No appearance for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F18900238)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
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INTRODUCTION
Roberto Zaragoza filed a Penal Code section 995 motion to set aside the information after he was charged with felony identity theft pursuant to section 530.5, felony forgery, and misdemeanor identity theft, alleging his conduct amounted only to misdemeanor shoplifting under Proposition 47, a violation of section 459.5. The trial court granted the motion and dismissed all three counts.
References to code sections are to the Penal Code. --------
The People appeal, contending the identity theft and forgery charges should not have been dismissed. We agree and reverse and remand.
FACTUAL AND PROCEDURAL SUMMARY
On January 8, 2018, Zaragoza entered a check cashing business in Fresno and attempted to cash a check for $650 purportedly from a lawyer (R.B.) payable to Zaragoza. The manager spotted irregularities in the check and called the Fresno Police Department. Officer Eric Ia was dispatched.
Ia spoke with Zaragoza, who indicated he had received the check for doing some plumbing work. However, he could not provide Ia with a name, address, or phone number for where the work was done. Ia informed Zaragoza the check was from a lawyer and asked him if he knew anyone by the name R.B. Zaragoza responded he did not and was not expecting any payment from a lawyer. After further discussion, Zaragoza stated he had received the check in the mail; did not know who had sent it; and thought it was sent for him to cash.
Detective Marty Lucero contacted R.B. R.B. told Lucero that the check belonged to him, but he had not written any check to Zaragoza; did not know anyone by that name; Zaragoza had never been a client of his; and Zaragoza had never done any work for him. The information on the check did, however, belong to R.B.
A first amended information was filed on June 7, 2018, charging Zaragoza in count 1 with felony identity theft, in violation of section 530.5, subdivision (a); in count 2 with felony forgery, in violation of section 475, subdivision (c); and in count 3 with misdemeanor identity theft, in violation of section 530.5, subdivision (c)(1). It also was alleged that Zaragoza served three prior prison terms and had suffered a prior strike conviction.
Zaragoza filed a motion pursuant to section 995 to set aside the first amended information on June 25, 2018. The motion alleged that as a matter of law, Zaragoza's actions amounted only to misdemeanor shoplifting pursuant to section 459.5, as a result of Proposition 47.
The People filed a written response and argued that the crime set forth in section 530.5, subdivision (a) is not a theft offense and should not be reclassified as shoplifting. The People also contended the related forgery charge should remain a felony.
A hearing on the motion was held on July 6, 2018. The trial court concluded that the case law interpreting Proposition 47 required that Zaragoza be charged only with shoplifting. The trial court stated "it is constrained by precedent and required" to dismiss the charges.
The People filed a timely notice of appeal on July 16, 2018.
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 (Proposition 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."
Recently, after briefing was completed in Zaragoza's appeal, the Supreme Court held that a violation of section 530.5, subdivision (a) does not constitute a 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.) Jimenez is dispositive. Zaragoza was not entitled to the benefit of Proposition 47 and section 459.5 in connection with the count 1 section 530.5, subdivision (a) offense. Jimenez also applies to prevent application of Proposition 47 to the count 3 offense, a misdemeanor charge of identity theft. (People v. Jimenez, at pp. 58-59, 61-62.)
Furthermore, when a forgery offense occurred "in connection with" a section 530.5, subdivision (a) offense, the forgery offense is not within the purview of Proposition 47. (People v. Gonzales (2018) 6 Cal.5th 44, 54-55.) While count 1 charged Zaragoza with using personal identifying information of R.B. on January 8, 2018, count 2 charged Zaragoza with the offense of possessing a forged completed check on January 8, 2018, with the intent to pass the check in order to defraud. The offenses constituting violations of section 530.5, subdivision (a) and section 475, subdivision (c) occurred in connection with each other. Therefore, the forgery charge filed against Zaragoza was not subject to Proposition 47. (People v. Gonzales, at p. 54-55; see also, People v. Guerrero (Apr. 30, 2020, S253405) ___ Cal.5th ___ [2020 Cal. Lexis 2749 at pp. 13-14].)
Consequently, the trial court should not have granted the section 995 motion.
DISPOSITION
The trial court's order granting Zaragoza's section 995 motion and dismissing counts 1 through 3 of the first amended information is reversed and the matter is remanded to the superior court.