People v. Martin

• Decision Date: 29 August 2018
• Docket Number: 2d Crim. No. B283097
• Citation: 237 Cal.Rptr.3d 504,26 Cal.App.5th 825
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Amaya Monique MARTIN, Defendant and Respondent.

26 Cal.App.5th 825

237 Cal.Rptr.3d 504

The PEOPLE, Plaintiff and Appellant,

v.Amaya Monique MARTIN, Defendant and Respondent.

2d Crim. No. B283097

Court of Appeal, Second District, Division 6, California.

Filed August 29, 2018

Gregory D. Totten, District Attorney, Michelle J. Contois, Deputy District Attorney, for Plaintiff and Appellant.

Todd W. Howeth, Public Defender, William M. Quest, Snr. Deputy Public Defender, Cerise M. Fritsch, Deputy Public Defender, for Defendant and Respondent.

YEGAN, J.

The fabric of the law will stretch only so far before it will unravel. Here, a professional thief entered in to an international conspiracy to commit as many petty thefts as she could get away with. She was foiled by security guards and the police. She seeks to stretch Proposition 47 to cover her conspiracy to commit petty theft. She convinced the trial court. But it just will not stretch that far. It is difficult, if not impossible, to believe that the electorate intended that a person, such as respondent, with five prior separate prison terms who joined an international conspiracy to commit petty theft, would deserve misdemeanor treatment. To say it out loud or put it on paper causes considerable pause.

Respondent Amaya Monique Martin was convicted of felony conspiracy to commit petty theft. ( Pen. Code, § 182, subd. (a)(1).)¹ The People appeal from an order granting respondent's petition to recall her felony sentence and resentence her to misdemeanor shoplifting pursuant to sections 459.5 and 1170.18, which were enacted by Proposition 47.

We reverse. The trial court erroneously determined that a felony conviction for conspiracy to commit petty theft is eligible for reduction to a misdemeanor under section 1170.18. We hold that Proposition 47 does not authorize the reduction of a felony conspiracy conviction to misdemeanor shoplifting.

Negotiated Disposition and Sentence

The information consisted of eight counts. In January 2016 respondent pleaded guilty to three counts: count 2 (felony commercial burglary over $950 in violation of § 459), count 4 (felony conspiracy to commit petty theft), and count 8 (misdemeanor shoplifting in violation of § 459.5, subd. (a)). All of the crimes were committed on different dates in January 2015. The remaining counts were dismissed. Respondent admitted five prior separate prison terms (§ 667.5, subd. (b)) and one prior "strike." (§ 667, subds. (c)-(e)(1).)

The trial court dismissed the strike and three prior prison terms. It sentenced respondent to prison for three years four months, to be served consecutively to a four-year prison term imposed for a 2015 burglary conviction in another case. The consecutive prison sentence was calculated as follows: eight months for the burglary (one-third the middle term of two years), plus eight months for conspiracy to commit petty theft (same), plus two years for the two prior prison terms. As to the misdemeanor, respondent was sentenced to a concurrent term of 180 days.

Facts Underlying the Three Counts to Which Respondent Pleaded Guilty

As to count 4, conspiracy, on January 24, 2015, a security guard saw respondent and two other women in the cosmetic aisle of a Walmart store. He recognized the women as suspects in a prior shoplifting at another Walmart store. One of the women put cosmetics into her purse. The three women walked past open cash registers and exited the store. The security guard stopped them. He recovered stolen cosmetics valued at $794.50. Cosmetics valued at $486.30 were missing and never recovered.

A sheriff's deputy viewed a video of the incident. The video "showed three female subjects entering the Wal-Mart store, walking to the cosmetic aisle, all standing together, looking around the area nervously, putting items into purses, and then walking out of the store together." It appeared that "they were all working together."

As to count 2, felony commercial burglary, on January 16, 2015, respondent and two other persons "arrived together in a ... sedan" at a Walmart store. They entered the store and walked to the cosmetics aisle. "They proceeded to remove cosmetics items from the shelves and fill a purse and a grocery-type reusable bag that was placed ... in the [shopping] cart." "They all left the store within seconds of one another after walking past cash registers [and] not paying for the items they selected." The stolen cosmetics were valued at $966.² The property was never recovered.

As to count 8, misdemeanor shoplifting, on January 23, 2015, respondent and two other persons entered an Alberston's store together. While respondent appeared to act as "a lookout," the two other persons removed "[a]lcohol items and possibly cosmetics" from shelves and "secret[ed] them."

An Albertson's employee saw the three persons "walking out the store with a cart loaded with merchandise which they didn't pay for." The employee said, " ‘Hey, what are you doing?’ And they just kept walking." The employee could not recall the value of the property taken.

Respondent told detectives: "She had been approached earlier last year and ‘recruited’ to steal cosmetics for someone who would send them to Latin America, primarily Guatemala. She would receive about $200 each time she took $1,000 of cosmetics."

Proposition 47, Section 459.5, Also Known as "Shoplifting"

At the general election on November 4, 2014, the voters approved Proposition 47, which became effective the next day. "Proposition 47 created the new crime of ‘shoplifting,’ defined as entering an open commercial establishment during regular business hours with the intent to commit ‘larceny’ of property worth $950 or less. ( Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute, which also applies to an entry with intent to commit ‘larceny’ or any felony. ( Pen. Code, § 459.)" ( People v. Gonzales (2017) 2 Cal.5th 858, 862, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ).) Section 459.5, subdivision (a) provides, "Shoplifting shall be punished as a misdemeanor."

Proposition 47 added section 1170.18 to the Penal Code. If a person is serving a sentence for a felony offense that would have been misdemeanor shoplifting pursuant to section 459.5, section 1170.18 permits the person to file a petition to recall the felony sentence and resentence the person to a misdemeanor.

Conspiracy To Commit Petty Theft Is a "Wobbler"

Since 1872 when the Penal Code was enacted, conspiracy has been a separate and distinct crime. "[T]raditional conspiracy encompasses an agreement to commit ‘any crime.’ ( § 182, subd. (a)(1).) Therefore, it is possible to conspire to commit a misdemeanor. [Citations.]" ( People v. Johnson (2013) 57 Cal.4th 250, 262, 159 Cal.Rptr.3d 70, 303 P.3d 379 ( Johnson ).)

"Conspiracy to commit [misdemeanor] petty theft ... may be punished as either a felony or a misdemeanor. [Citations.]" ( People v. Mullins (2018) 19 Cal.App.5th 594, 611, 228 Cal.Rptr.3d 198 ( Mullins ).) Such a crime is referred to as a " ‘wobbler.’ " ( People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6, 111 Cal.Rptr.3d 589, 233 P.3d 1000.) "The conviction [of a wobbler] constitutes a felony unless and until the crime is reduced by the court to a misdemeanor. [Citations.]" ( Ibid . ) " ‘ "If [as in the instant case] state prison is imposed, the offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter deemed a misdemeanor. [Citations.]" ’ [Citation.]" ( People v. Tran (2015) 242 Cal.App.4th 877, 885, 195 Cal.Rptr.3d 638.)

" ‘A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. [Citations.]’ [Citation.]" ( Mullins , supra , 19 Cal.App.5th at p. 607, 228 Cal.Rptr.3d 198.)

"Once one of the conspirators has performed an overt act in furtherance of the agreement, ‘the association becomes an active force, [but] it is the agreement, not the overt act, which is punishable. Hence the overt act need not amount to a criminal attempt and it need not be criminal in itself.’ [Citations.]" ( Johnson , supra , 57 Cal.4th at p. 259, 159 Cal.Rptr.3d 70, 303 P.3d 379.)

" ‘Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.’ [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and ‘does not require the commission of the substantive offense that is the object of the conspiracy.’ [Citation.] ‘Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.’ [Citation.]" ( Johnson , supra , 57 Cal.4th at pp. 258-259, 159 Cal.Rptr.3d 70, 303 P.3d 379 ; see also Callanan v. United States (1961) 364 U.S. 587, 593, 81 S.Ct. 321, 5 L.Ed.2d 312.)

Proposition 47 Does Not Apply to Conspiracy To Commit Petty Theft

People v. Segura (2015) 239 Cal.App.4th 1282, 191 Cal.Rptr.3d 904 ( Segura ), is directly on point, but the trial court refused to follow it. In Segura the defendant was convicted of conspiracy to commit theft. "He admitted he had unlawfully entered a 7-Eleven store with the intent to commit larceny and had conspired with two codefendants to commit a theft." ( Id . at p. 1283, 191 Cal.Rptr.3d 904.) The trial court denied the defendant's petition to recall his felony sentence and resentence him to a misdemeanor.

The Segura court upheld the trial court's ruling "because Proposition 47 does not apply to convictions for conspiracy." ( Segura , supra , 239 Cal.App.4th at p. 1284, 191 Cal.Rptr.3d 904.) It said: " Section 1170.18 specifies the sections of the Health and Safety Code and Penal Code to which it applies. ( Pen. Code, § 1170.18, subds. (a), (b).) It does not include Penal Code section 182, the...