People v. Sanders

• Court: California Court of Appeals
• Writing for the Court: HUFFMAN, Acting P.J.
• Citation: People v. Sanders, 231 Cal.Rptr.3d 477, 22 Cal.App.5th 397 (Cal. App. 2018)
• Decision Date: 17 April 2018
• Docket Number: D072875
• Parties: The PEOPLE, Plaintiff and Respondent, v. Misha Yvanne SANDERS, Defendant and Appellant.

22 Cal.App.5th 397

231 Cal.Rptr.3d 477

The PEOPLE, Plaintiff and Respondent,

v.Misha Yvanne SANDERS, Defendant and Appellant.

D072875

Court of Appeal, Fourth District, Division 1, California.

Filed April 17, 2018

Randy Mize, Public Defender, Angela Bartosik, Chief Deputy, Michael Begovich and Robert L. Ford, Deputy Public Defenders.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P.J.

In 2014, Misha Yvanne Sanders pleaded guilty to two counts of commercial burglary ( Pen. Code,¹ § 459 ) and two counts of identity theft (§ 530.5, subd. (a) ). The court sentenced Sanders to a determinate term of three years eight months.

In 2017, Sanders filed a petition under Proposition 47 (Safe Neighborhoods and Schools Act, § 1170.18) to reclassify all of her convictions as misdemeanors and to dismiss the identity theft counts. The trial court granted the petition as to the burglary counts, reasoning they qualified as "shoplifting" under section 459.5. The court denied the petition with regard to the violations of section 530.5.

Sanders appeals contending the offenses under section 530.5 must be deemed petty thefts since the amounts of money or merchandise taken in the burglaries (shoplifting) was less than $950. She asserts that in light of the court's opinions in People v. Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ) and People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), we should find the violations of section 530.5 to be theft offenses and thus subject to the determination they amount to petty theft within the meaning of section 490.2.

We will find the violations of section 530.5, subdivision (a) are not theft offenses. They are not specified in section 1170.18, and are not subject to reclassification under that section. Nor do we believe the decisions in Page , supra, 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 and Romanowski, supra, 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 compel adoption of Sanders's interpretation of those decisions. Accordingly, we will reject Sanders's contention and affirm the trial court's decision.

STATEMENT OF FACTS

The facts of the offenses are not in dispute and are taken from the probation officer's report.

It is sufficient to note Sanders discovered a credit card on the ground. The card belonged to someone else. Sanders used the card to obtain cigarettes and a beverage at a 7-11 store. She also obtained cash at a Burger King restaurant. The total amount of charges made by Sanders on the credit card were $174.61.

DISCUSSION

Simply put, Sanders contends that since the burglary charges have been reclassified as misdemeanor shoplifting and the amount of goods taken from the merchants was under $950, the section 530.5 violations must be considered as petty thefts and therefore must be reduced to misdemeanors and dismissed. As we will point out, even though section 530.5 violations are often referred to as "identity theft," they are not theft offenses. Theft is not an element of the offense. The offense is not in the theft chapter (chapter 5) of the Penal Code, but is instead listed in chapter 8 dealing with false personation. The gravamen of the section 530.5, subdivision (a) offense is the unlawful use of a victim's identity. Moreover, as we will discuss, there were multiple victims in the offenses charged. The entry into commercial establishments to obtain property by false pretenses victimized the merchant, and not the cardholder. The cardholder is a victim because her identity was unlawfully used.

Additionally, we will point out that section 530.5, subdivision (a) is not one of the listed offenses in section 1170.18 as being subject to reclassification. We will also note that section 473 (forgery) as revised in Proposition 47, specifically excludes cases where the person is convicted of both forgery and identity theft in section 530.5 from the $950 minimum threshold.

A. Proposition 47

Proposition 47 was approved by the voters in November 2014. The proposition reduced the punishment for a number of theft related offenses to misdemeanors where the requisite minimum dollar value of the items taken has not been proved. Additionally, section 1170.18, subdivision (a) creates a procedure which permits a previously convicted defendant to petition the trial court for reclassification of the convicted offenses and for resentencing.

The court in Page, supra, 3 Cal.5th at pages 1181 to 1182, 225 Cal.Rptr.3d 786, 406 P.3d 319 summarized the pertinent portions of the reclassification provisions relevant to our analysis. The court said:

"Proposition 47's resentencing provision, section 1170.18, subdivision (a), provides, in pertinent part: ‘A person who, on November 5, 2014, was serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.’ The cited provisions include section 490.2, subdivision (a), added by Proposition 47, which provides in pertinent part: ‘Notwithstanding [Penal Code] 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 ....’ [¶] Under these provisions, a person serving a sentence for grand theft under Penal Code section 487 or another statute expressly defining a form of grand theft (e.g., Pen. Code, §§ 484e, 487a, 487i ) is clearly eligible for resentencing under section 1170.18 if he or she can prove the value of the property taken was $ 950 or less. (See People v. Romanowski (2017) 2 Cal.5th 903, 910–914, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ) [defendant convicted for theft of access card information under Pen. Code, § 484e eligible for resentencing].)"

Also relevant here is that the proposition amended the forgery statute, section 473, to make forgeries misdemeanors unless the threshold amount of loss is more than $950. Subdivision (b) of section 473 provides:

"(b) Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5. " (Italics added.)

Under the amended section where a defendant is convicted of both forgery and violation of section 530.5 the minimum dollar amount for felony classification does not apply.

Finally, we find it significant that section 530.5 is not one of the listed offenses in section 1170.18 which is subject to the $950 loss limitation for felony sentencing. Although the absence of specific listing of the offense in section 1170.18 provides some guidance, we recognize our Supreme Court has applied section 490.2 as created in Proposition 47 to nonlisted offenses. ( Romanowski, supra, 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 [ § 484e ]; Page, supra, 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 [ Veh. Code, § 10851 ].)

B. Romanowski and Page

Sanders relies heavily on the opinions in Romanowski, supra, 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 and Page, supra, 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 for her position that offenses under section 530.5, subdivision (a) should be treated as theft offenses, at least when the offender uses another person's identity to obtain small amounts of property from banks and other merchants. We do not think either case compels or even supports her argument.

In Romanowski the court dealt with the offense of theft of an access card under section 484e. The offense is not listed in section 1170.18, however, the court found that theft of an access card is a form of grand theft. As such, the offense comes within the scope of section 490.2, created by Proposition 47. ( Romanowski, supra, 2 Cal.5th at pp. 907-908, 215 Cal.Rptr.3d 758, 391 P.3d 633.)

Section 490.2, subdivision (a) provides:

"(a) 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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."

In Page, supra, 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319, the court addressed a different...