People v. Soto

• Citation: 23 Cal.App.5th 813,233 Cal.Rptr.3d 515
• Decision Date: 24 May 2018
• Docket Number: D072319
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Israel SOTO, Defendant and Appellant.

23 Cal.App.5th 813

233 Cal.Rptr.3d 515

The PEOPLE, Plaintiff and Respondent,

v.Israel SOTO, Defendant and Appellant.

D072319

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

Filed May 24, 2018

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Adrian R. Contreras, Deputy Attorney General, for Plaintiff and Respondent.

DATO, J.

Israel Soto appeals an order denying his petition to reduce to a misdemeanor his felony conviction for theft from an elder. ( Pen. Code, § 368, subd. (d).)¹ He sought relief under section 1170.18, the Safe Neighborhoods and Schools Act, which was enacted by California voters in November 2014 pursuant to Proposition 47. The trial court denied Soto's petition on the basis that his conviction was categorically ineligible for relief. Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( Anders ) and People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ), and Soto filed a supplemental brief on his own behalf.

We asked for supplemental briefing on whether Soto's conviction under section 368, subdivision (d) was eligible for reclassification under Proposition 47 following People v. Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ). Having reviewed the submissions, we conclude Soto is ineligible for relief and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Soto helped his grandmother change her telephone service provider. While talking to the operator, he memorized her birthdate and social security number. He later impersonated his grandmother to obtain a new credit card on her account in his name and used it to make unauthorized retail purchases.² Soto was charged with theft from an elder of a value exceeding $400 ( § 368, former subd. (d), added by Stats. 2004, ch. 893, § 1) and using the personal identification of another (§ 530.5, subd. (a) ).

In December 2006, Soto pled guilty to section 368, subdivision (d) and the People dismissed the remaining charge. Pursuant to the terms of his plea agreement, Soto's conviction was to be reduced to a misdemeanor once he paid full restitution. At sentencing, the court suspended imposition of the sentence and placed Soto on probation for three years, subject to certain terms and conditions. It entered a "no contact" order preventing further contact with the victim and ordered Soto to pay $1,822.05 in victim restitution. It also imposed a $200 restitution fine and a $200 probation revocation fine, stayed unless probation was revoked. (§§ 1202.4, subd. (b), 1202.44.)

Soto filed a pro per petition in April 2017 seeking reclassification of his offense to a misdemeanor (§ 1170.18, subd. (f) ). His handwritten argument section was three sentences long and stated simply that Proposition 47 converted felonies to misdemeanors. The court denied the petition, deeming the underlying conviction under section 368, subdivision (d) categorically ineligible for reclassification under section 1170.18.

Appointed appellate counsel filed a brief summarizing the facts and proceedings before the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. Pursuant to Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, counsel identified the following issue that might arguably support the appeal: "whether the court erred as a matter of law in finding appellant's conviction for violating Penal Code section 368, subdivision (d), was ineligible for Proposition 47 relief, and if so, whether the record supported a finding that his conviction met the $950 or less statutory threshold."

Soto filed a supplemental brief, in which he claimed he spent only $822.05 on his grandmother's credit card, not $1,822.05, and asked us to review the purchases allegedly made. He also argued that his family would be willing to write a letter "to cancel" the civil judgment of "1,822.05 dollars."

We asked counsel to submit supplemental briefs on the following issues: "(1) Is Soto's conviction for theft from an elder under Penal Code section 368 eligible for resentencing under Penal Code section 1170.18 ? (Compare People v. Bush (2016) 245 Cal.App.4th 992, 1001–1005, 200 Cal.Rptr.3d 190 with People v. Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319.) (2) If the conviction is eligible, did Soto's petition include sufficient ‘allegations, testimony, or record references' for the trial court to determine his eligibility for resentencing under Penal Code section 1170.18 ; if the present petition is insufficient, is Soto ‘entitled to an opportunity to file a new petition meeting the statutory requirements'? (See Page, supra, 3 Cal.5th at p. 1189, 225 Cal.Rptr.3d 786, 406 P.3d 319.)"

Soto's appellate counsel filed a letter brief arguing that Page, supra, 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 requires reversal; the People filed a brief taking the contrary view.

DISCUSSION

1. The Parties Agree That Soto's Petition Was Deficient

"A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility." ( Page, supra, 3 Cal.5th at p. 1188, 225 Cal.Rptr.3d 786, 406 P.3d 319.) Defense counsel concedes that Soto's petition was devoid of allegations, testimony, or record references from which the trial court could determine whether Soto was convicted of theft of a value $950 or less. ( Id. at p. 1189, 225 Cal.Rptr.3d 786, 406 P.3d 319.) This information was also not apparent from the record. During the plea soliloquy, Soto admitted he obtained property "of a value over $400" or "exceeding $400." The trial court ordered victim restitution of $1,822.05 but never made a finding as to the value of property taken. Although Soto claims on appeal he only spent $822.05, he never made argument or presented relevant evidence to the trial court. Because Soto did not meet his burden of proof to establish his eligibility for Proposition 47 relief, his petition was properly denied. ( Ibid. )

The real question presented by this appeal is whether we should affirm the order denying Soto's petition to reduce his offense to a misdemeanor with or without prejudice. Page affirmed the denial of a petition without prejudice because "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47," and "neither had yet been judicially articulated when defendant submitted his petition for recall." ( Page, supra, 3 Cal.5th at p. 1189, 225 Cal.Rptr.3d 786, 406 P.3d 319.) It concluded the defendant was "entitled to an opportunity to file a new petition meeting the statutory requirements" and explained that "[s]uch a petition should allege and, where possible, provide evidence of facts necessary to establish eligibility for resentencing under section 1170.18." ( Ibid. )

The People seek affirmance with prejudice because Soto filed his petition after Romanowski established that he bore the burden of proof. ( Romanowski, supra , 2 Cal.5th at p. 916, 215 Cal.Rptr.3d 758, 391 P.3d 633.) We do not address that argument. Because Soto's conviction under section 368, subdivision (d) is ineligible for reclassification, he is not entitled to file a new petition, and we affirm the order denying his petition with prejudice.

2. A Conviction Under Section 368, Subdivision (d) Is Ineligible for Reclassification Via Section 490.2, Subdivision (a)

"Approved by the voters in 2014, Proposition 47 (the ‘Safe Neighborhoods and Schools Act’) reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new ... section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." ( Page, supra, 3 Cal.5th at p. 1179, 225 Cal.Rptr.3d 786, 406 P.3d 319.)

A separate provision of Proposition 47, codified at section 1170.18, describes petitioning procedures. ( Page, supra, 3 Cal.5th at p. 1179, 225 Cal.Rptr.3d 786, 406 P.3d 319.) As is relevant here, eligible defendants who have already completed a felony sentence may petition to reclassify their convictions as misdemeanors if they "would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense." ( § 1170.18, subd. (f).) At issue is whether Proposition 47 applies to a conviction under section 368, subdivision (d). This presents a pure question of law, subject to de novo review. ( People v. Bush (2016) 245 Cal.App.4th 992, 1003, 200 Cal.Rptr.3d 190 ( Bush ).)

At the time of Soto's plea, section 368, subdivision (d) read:

"Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred

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