Filed 10/13/17 P. v. Stevens CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY WINNFIELD STEVENS,
Defendant and Appellant.
| H043163 (Santa Cruz County Super. Ct. No. F07157) |
Defendant Anthony Winnfield Stevens appeals from the trial court’s denial of his petition to redesignate his 2003 felony conviction for unlawful possession of access card information (Pen. Code, § 484e, subd. (d))[1] as a misdemeanor under Proposition 47 (§ 1170.18, subd. (f)).
On appeal, Stevens argues the trial court erred in denying his petition on the ground that his offense was not eligible for redesignation under Proposition 47. We agree and will reverse the order, remanding the matter to the trial court to permit Stevens to file an amended petition setting forth evidence showing the reasonable and fair market value of the stolen access card information.
I. Factual and Procedural Background
Stevens was charged by a complaint filed on April 29, 2003, with one felony count of unlawful possession of access card information (§ 484e, subd. (d), count 1), one felony count of unlawful possession of stolen property (§ 496, subd. (a), count 2), and one misdemeanor count of unlawfully obtaining food and accommodations without paying (§ 537, subd. (a)(1)). On May 12, 2003, Stevens pleaded no contest to count 1 and, on the People’s motion, the trial court dismissed counts 2 and 3 in the interests of justice. The trial court then suspended sentence and placed Stevens on formal probation for three years.
On September 17, 2015, Stevens filed a petition to redesignate his 2003 felony conviction as a misdemeanor pursuant to section 1170.18, subdivision (f). The People filed a form response, stating that Stevens’ conviction “is not eligible for reduction per Prop[osition] 47 because [section] 484e(d) [sic] punishes the obtaining of access card information with the intent to use it, not the actual use of the information, which is prohibited by section 484g.”
In reply, Stevens described the charges set forth in the 2003 complaint as follows: “These charges were premised on [him] possessing and utilizing a stolen access card to pay for various items in the Santa Cruz area. These charges totaled $469.20. The misdemeanor charge resulted from [him] leaving a dining establishment without paying for his meal after trying to utilize the stolen access card. The cost of the meal was $58.51.” Stevens did not attach any sworn declarations or other documentary evidence to support these assertions.
At the November 12, 2015 hearing, the trial court found that the offense of unlawful possession of access card information (§ 484e, subd. (d)) was not eligible for redesignation under Proposition 47. In its oral remarks during the hearing, the trial court noted that section 484e, subdivision (d) was not “specifically included” in Proposition 47 and that the statute is “focuse[d] upon the taking of an item with the intent to defraud,” without any mention of the value of that item.
Stevens timely appealed.
II. Discussion
The California Supreme Court recently decided this issue, in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), finding that the theft of access card account information (§ 484e, subd. (d)) is an offense eligible for redesignation and resentencing under section 1170.18, so long as the value of the information stolen does not exceed $950. In Romanowski, the Supreme Court noted that “[t]he provision of Proposition 47 reducing punishment for theft crimes provides: ‘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 . . . .’ (§ 490.2, subd. (a).)” (Romanowski, supra, at p. 907.) Because section 484e, subdivision (d) itself provides that the unlawful taking of access card information is “grand theft” and also because that statute “resides in part 1, title 13, chapter 5 of the Penal Code, which is titled ‘Larceny[,]’ . . . the Legislature made clear that theft of access card information is a theft crime,” and therefore eligible for redesignation under Proposition 47. (Romanowski, supra, at p. 908.)
Having determined that the trial court erred in finding that Stevens’ conviction for theft of access card information was presumptively ineligible for redesignation under Proposition 47, we now address the appropriate remedy. Again, Romanowski points the way forward, holding that “[a]s with any other theft that is punished based on the stolen property’s value, ‘the reasonable and fair market value shall be the test’ for applying section 490.2’s $ 950 threshold. (§ 484, subd. (a).)” (Romanowski, supra, 2 Cal.5th at p. 917.) Recognizing that there is no legal market that can be consulted to assess the value of stolen access card information, “courts may consider evidence concerning the potential for illicit sale of the access card information in order to determine its value.” (Ibid.) However, “[t]he ultimate burden of proving section 1170.18 eligibility lies with the petitioner.” (Id. at p. 916.)
We note that Stevens, in response to the People’s objection to his petition, made certain representations relating to the value of the unlawful purchases of goods and services he made with the stolen access card. Those unsupported representations are not evidence, and even more importantly, they are irrelevant. The Supreme Court has made clear that “the $950 threshold for theft of access card information must reflect a reasonable approximation of the stolen information’s value, rather than the value of what (if anything) a defendant obtained using that information.” (Romanowski, supra, 2 Cal.5th at p. 914, italics added.)
With that in mind, we will direct the trial court on remand to provide a reasonable deadline for Stevens to file an amended petition to support his allegation that the stolen access card information was valued at less than $950.[2]
III. Disposition
The order denying defendant’s application for redesignation is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. On remand, the trial court shall set a reasonable deadline for the filing of an amended petition, and it shall have discretion to continue that deadline for good cause shown.
Premo, J.
WE CONCUR:
Rushing, P.J.
Walsh, J.*
[1] Unspecified statutory references are to the Penal Code.
[2] At oral argument, Stevens’ counsel cited People v. Smith (2016) 1 Cal.App.5th 266 for the proposition that the burden of proof on the issue of valuation shifted to the district attorney once Stevens declared, under penalty of perjury, that the value of the access card information was less than $950. We find Smith distinguishable, because in that case, the district attorney expressly conceded that the defendant was “ ‘entitled to resentencing’ ” under Proposition 47 on his burglary conviction, a concession which necessarily encompassed the valuation issue. (Id. at p. 275, underscore and italics omitted.) On appeal, the People unsuccessfully sought to roll back that concession, arguing for the first time that the defendant had failed to carry his burden of proof on the valuation issue below. (Ibid.) In the instant case, there was no such concession by the district attorney, on the eligibility of the offense itself or the valuation question, and Stevens’ bare declaration on value was insufficient to shift the burden of proof.
* Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
