Filed 12/18/19 P. v. Mims CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

LAFAYETTE DEVETTECAR MIMS,

Defendant and Appellant.

C085787, C086146

(Super. Ct. Nos. 14F07275, 16FE022584)

Defendant Lafayette Devettecar Mims, charged with felony theft and identity theft/forgery in two cases, was sentenced to a two-year split term under a plea agreement. In the first case, he seeks the redesignation of his felonies as misdemeanors under Penal Code section 1170.18 (subsequent undesignated statutory references are to the Penal Code). In the second case, he seeks reversal of the trial court’s ruling that denied his section 995 motion to dismiss the felony charges and recharge the case as a misdemeanor.

We remand the matter to the trial court for further proceedings.

FACTS AND LEGAL PROCEEDINGS

In case No. 14F07275 (case No. 14F), an amended felony complaint filed on December 18, 2014, charged defendant and a codefendant with multiple counts of theft and identity theft, among other offenses. Defendant pleaded no contest to counts 9 through 12, all alleging unlawful use of personal identification (§ 530.5, subd. (a)), in return for the dismissal of the remaining counts and a grant of formal probation for five years.

In case No. 16FE022584 (case No. 16F), a felony complaint filed on December 2, 2016, charged defendant with identity theft (§ 530.5, subd. (c)(2); count 1), use of false identification to defraud (§ 470b; count 2), and forgery (§ 476; count 3).

On February 16, 2017, a petition to violate defendant’s probation in case No. 14F was filed, alleging defendant’s arrest on the new charges as the violation.

On July 21, 2017, in case No. 14F, defendant petitioned the trial court pursuant to section 1170.18 to redesignate the felonies to which he had pleaded as misdemeanors. The trial court denied the petition, finding that those felonies were not eligible for redesignation.

On June 27, 2017, an amended felony complaint was filed in case No. 16F, adding a new count of violating section 470b (count 4).

On August 24, 2017, in case No. 16F, defendant moved under section 995 to dismiss the alleged counts and to replace them with a single misdemeanor count of “commercial burglary,” i.e., shoplifting (§ 459.5). On October 12, 2017, the trial court denied the motion.

On October 12, 2017, under a plea agreement encompassing both cases, defendant pleaded no contest to count 2 (§ 470b) in case No. 16F and admitted the probation violation in case No. 14F. The court revoked defendant’s probation in case No. 14F and sentenced him to eight months’ imprisonment on count 9, with counts 10 through 12 to run concurrently. In case No. 16F, the court imposed probation, which included 16 months’ imprisonment on count 2 (dismissing the other counts), run consecutive to the sentence in case No. 14F. Defendant’s total term was two years, the first year to be served in custody and the second under mandatory supervision.

DISCUSSION

In defendant’s opening brief, he contended: (1) As to case No. 14F, the matter should be remanded for an evidentiary hearing pursuant to section 1170.18 to determine whether defendant’s convictions qualify for redesignation as misdemeanors. (2) As to case No. 16F, the matter should be reversed because the provisions under which defendant was charged qualify for such redesignation under section 459.5 (shoplifting) or section 490.2 (petty theft).

Respondent Attorney General argued in part that section 1170.18 relief was unavailable to defendant in case No. 14F because he entered his plea after Proposition 47’s passage. In case No. 16F, the Attorney General argued that defendant’s section 490.2 claim is forfeited because he did not raise it on the section 995 motion, and the charging limitation of section 459.5 does not apply to the statutes under which defendant was charged.

Having originally failed to discuss whether Proposition 47 applies to crimes occurring after its enactment, defendant requested and was granted leave to file a supplemental brief that did so. The Attorney General filed a responsive supplemental brief.

Case No. 14F

Proposition 47, which reduced certain drug and theft related offenses from felonies or “wobblers” to misdemeanors, was enacted on November 4, 2014 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014). (People v. Buycks (2018) 5 Cal.5th 857, 870-871; People v. Martinez (2018) 4 Cal.5th 647, 651.) Section 1170.18, enacted into law by Proposition 47, provides that a defendant “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,” or “who has completed his or her sentence for a conviction . . . of [such] a felony or felonies,” may petition the trial court to request resentencing in accordance with Proposition 47. (§ 1170.18, subds. (a), (f).)

Here, defendant was not serving a sentence for a conviction of a felony covered by Proposition 47 and had not completed a sentence for such a conviction when case No. 14F was filed. Therefore, as defendant acknowledges in his supplemental brief, he was not eligible to file a petition under section 1170.18 as to that case.

Relying on People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) and People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), defendant asserts that this court should “extend or relax the time within which an otherwise qualified petitioner may file.” On this issue, Gonzales and Romanowski do not support him. In both cases, the defendants who filed resentencing petitions had been sentenced and had begun to serve their sentences before the effective date of Proposition 47. (Romanowski, at p. 906; Gonzales, at pp. 862-863 [probation].) Neither decision extends the reach of section 1170.18 to persons in his situation.

Because defendant has not requested any form of relief actually available to him as to case No. 14F, we express no view on whether the statute under which he was convicted in that case is subject to Proposition 47.

Case No. 16F

Background

At the preliminary hearing, defendant argued in reliance on Gonzales, supra, 2 Cal.5th 858, that the acts charged as felonies in counts 1 through 3 — which he called “entry into a commercial establishment with intent to commit identity theft” (count 1), “displaying a fictitious ID card” (count 2), and “passing a fictitious check in order to obtain two pairs of headphones” (count 3) — should have been charged as a single count of misdemeanor shoplifting (§ 459.5), because they all involved “entering a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours” and the value of the property “taken or intended to be taken” did not exceed $950. After the trial court rejected the argument and held defendant to answer, defendant renewed the argument as a section 995 motion (the 995 motion). (The motion separately argued that count 4 should be stricken for insufficient evidence. That count was dismissed under defendant’s global plea agreement.) Neither at the preliminary hearing nor in the 995 motion did defendant cite section 490.2 (petty theft).

As defendant stated the facts in the 995 motion (an account which the Attorney General does not dispute), employees of a Best Buy store notified the police that defendant came in and tried to purchase headphones worth $518.36 with a prepaid debit card, then with a check. Both were denied. He left the store to get another form of payment, leaving behind the check and an out-of-state driver’s license bearing his photograph and another person’s name. A search of his vehicle disclosed six more checks with that name, and an ID from another state bearing defendant’s photograph with a different person’s name. The checks were purportedly issued by a Missouri bank which turned out not to be located in that state, and the phone number on the checks belonged to another bank. Officers could not find anyone whose identity matched that of any person named on the documents in defendant’s possession.

The People’s opposition to the section 995 motion distinguished Gonzales on several grounds and argued that identity theft offenses fall into a separate category of crime from the offenses discussed in Gonzales.

The trial court issued a written tentative ruling, later confirmed orally, denying the section 995 motion without stating reasons.

Analysis

The Attorney General asserts that defendant’s claim as to section 490.2 is forfeited because he did not raise it on the section 995 motion. We agree.

The question whether any of defendant’s alleged offenses could come within section 490.2 is a mixed question of law and fact, since it involves both statutory construction and applying the facts to the statute as construed. Such issues are generally forfeited on appeal if not raised in the trial court. (See People v. McCullough (2013) 56 Cal.4th 589, 593-599 [issues depending partly on fact-specific determinations].) We see no reason to depart from that rule in this case. However, since we are remanding the matter to the trial court, defendant will have the opportunity to address section 490.2 on remand.

On the other hand, defendant’s section 459.5 contention, which he properly raised below, has merit. Because the offenses with which defendant was charged in case No. 16F at least potentially fall within section 459.5, the matter must be remanded for further proceedings.

In Gonzales, supra, 2 Cal.5th 858, the defendant who allegedly stole his grandmother’s checkbook, entered a bank, and cashed two checks made out to himself for $125 each, was charged with forgery and second degree burglary. He pleaded guilty to burglary and the forgery charge was dismissed. (Id. at p. 862.) The majority held: (1) These facts constituted misdemeanor shoplifting under section 459.5 because they showed entry into a commercial establishment during regular business hours with the intent to commit theft in an amount less than $950. (Gonzales, at pp. 864-875 (maj. opn. of Corrigan, J.).) (2) Where the alleged facts constitute shoplifting, the prosecution must charge them only that way and may not charge them in the alternative as theft or burglary of the same property. (Id. at pp. 876-877 [rejecting the argument that the defendant’s crimes could not be called shoplifting because he also entered the bank with the intent to commit “identity theft”].)

Gonzales’s second holding was followed in People v. Washington (2018) 23 Cal.App.5th 948 (Washington). The defendant in Washington used another person’s identity without permission to secure credit and purchase items at a Nordstrom store. These facts, which parallel those in the present case, gave rise to convictions for identity theft (§ 530.5, subd. (a)), burglary at a commercial establishment (§ 459), and possession of a forged driver’s license (§ 470b). (Washington, at p. 952.) Before Gonzales was decided, the trial court denied the defendant’s petition to reclassify his burglary conviction as shoplifting, reasoning that his intent was to commit identity theft, which was “not a shop-lifting [sic] type of crime.” (Ibid.) After Gonzales, the defendant renewed his petition, but the trial court, referring to its prior order, summarily denied the petition. (Id. at p. 953.)

On appeal from the trial court’s second order, the defendant contended that Gonzales had rejected the order’s premise that identity theft is outside the scope of “shoplifting.” (Washington, supra, 23 Cal.App.5th at p. 954.) The Attorney General conceded the point, and the appellate court accepted the concession. (Ibid.) In other words, Washington took it as settled law in light of Gonzales that even if a crime can be characterized as identity theft, it is nevertheless misdemeanor shoplifting, and may be punished only as such, if it includes the elements of that offense as defined by section 459.5.

The Attorney General states in a footnote that he does not concede the point he conceded in Washington but makes no argument to show Washington was wrong on this point. Points merely asserted without argument or authority are forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Therefore, the Attorney General’s purported withdrawal of his concession carries no weight.

The Attorney General cites two appellate decisions, both published prior to Washington, that hold Proposition 47 relief is not available for violations of section 530.5 (identity theft) because such crimes are not specifically listed in section 1170.18, and have more possible purposes and broader potential harms than theft crimes per se. (People v. Sanders (2018) 22 Cal.App.5th 397, 400-406, review granted July 25, 2018, S248775; People v. Liu (2018) 21 Cal.App.5th 143, 150-153, review granted June 13, 2018, S248130.) But since the Supreme Court has granted review in both cases (but not in Washington, which held that Gonzales required a contrary result as to crimes sounding in “identity theft”), Sanders and Liu have no binding or precedential effect.

The Attorney General contends Gonzales is distinguishable because the “identity theft” charge there (forgery) was dismissed, leaving only a burglary conviction (to which Proposition 47 applies), whereas here the single count to which defendant pleaded — section 470b (displaying or having in one’s possession a driver’s license or identification card with intent to use it to facilitate commission of forgery) — is not a burglary or theft offense. But Gonzales did not merely hold that a defendant could not be convicted of “identity theft” where the alleged facts fit the definition of shoplifting: it held that such a defendant may not even be charged with any theft offense, and impliedly included forgery in that category. (Gonzales, supra, 2 Cal.5th at pp. 876-877; see Washington, supra, 23 Cal.App.5th at p. 954.) Contrary to the Attorney General’s assertion, this portion of Gonzales is not mere dicta that this court is free to disregard.

Similarly, the Supreme Court held in Romanowski, supra, 2 Cal.5th 903 that “theft of access card account information” (§ 484e, subd. (d)), if the amount taken or intended to be taken is under $950, is eligible for Proposition 47 reclassification as misdemeanor theft. (Romanowski, at pp. 905-906.) Romanowski is not directly on point because, unlike the statutes at issue in the present case, section 484e, subdivision (d), uses the expression “grand theft,” and therefore comes within the reach of “petty theft” (§ 490.2, subd. (a)) if involving an amount less than $950. (Romanowski, at pp. 907-910; see People v. Bloomfield (2017) 13 Cal.App.5th 647, 654 [reading Romanowski’s holding narrowly to concern only the specific crime it addressed].) Nevertheless, Romanowski is instructive because it rejects the argument, made now as to section 470b by the Attorney General, that section 484, subdivision (e), is not primarily a “theft” crime. The high court found that any attempt to “retain possession” of access card information “without the cardholder’s or issuer’s consent” and “with the intent to use it fraudulently” within the meaning of the statute constitutes “a form of embezzlement, which is covered by section 484’s definition of ‘theft.’ ” (Romanowski, at p. 912.) Thus, the fact that a statute speaks of an intent to commit fraud (which the theft and burglary statutes do not, but section 470b does), does not necessarily take it out of the category of theft offenses — a category that includes shoplifting. (See Gonzales, supra, 2 Cal.5th at pp. 876-877.)

Romanowski further holds that the alleged “underlying purpose” of section 484e — “ ‘to protect innocent consumers’ ” — does not remove it from the scope of Proposition 47. Even assuming the statute has that purpose, there is nothing in the language of Proposition 47, or in any “unstated expectations about consumer protection,” that shows any intent under Proposition 47 to treat the theft of access card information differently from other forms of theft. (Romanowski, supra, 2 Cal.5th at pp. 912-913.) Thus, the Attorney General’s argument that “identity theft” crimes fall outside Proposition 47 because, unlike theft crimes in general, they potentially have multiple victims or because they have different objectives from theft crimes per se, is untenable.

For all the above reasons, we conclude that the matter must be remanded to the trial court for reconsideration of defendant’s section 995 motion. On remand, defendant may also argue the effect of section 490.2, which he failed to mention in the original motion.

Finally, if the court finds that defendant is entitled to redesignation of the offense in case No. 16F as a misdemeanor, the court is directed to resentence defendant in both cases in accordance with that finding.

DISPOSITION

The matter is remanded to the trial court for further proceedings consistent with this opinion.

HULL, Acting P. J.

We concur:

ROBIE, J.

MAURO, J.