Filed 10/18/17 P. v. Jaime CA2/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
| THE PEOPLE,
Plaintiff and Respondent,
v.
AQUALINA JAIME,
Defendant and Appellant.
| B267552
(Los Angeles County Super. Ct. No. GA089412) |
APPEAL from an order of the Superior Court of Los Angeles County, Michael Villalobos, Judge. Reversed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Kathleen Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Ilana Herscovitz and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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On October 7, 2013, a jury convicted Aqualina Jaime (Jaime) of (among other offenses) four counts of theft of access card information, in violation of Penal Code[1] section 484e, subdivision (d). The court struck three of those convictions at sentencing. On June 10, 2015, the trial court denied Jaime’s petition to have the remaining section 484e, subdivision (d) offense reclassified as a misdemeanor under section 1170.18, enacted pursuant to Proposition 47. Jaime appealed, and we affirmed.
On March 27, 2017, the California Supreme Court decided People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), holding that theft of access card account information is one of the crimes eligible for reduced punishment under Proposition 47. On May 24, 2017, the Court granted Jaime’s petition for review and remanded, directing us to vacate our decision and reconsider in light of Romanowski. We now reverse and remand to the superior court for reconsideration of Jaime’s petition for recall and resentencing in light of Romanowski.
BACKGROUND
Our prior opinion in Jaime’s direct appeal includes the following facts. An information charged Jaime with 14 felony counts, including four counts of theft of access card information in violation of section 484e, subdivision (d). Jaime pleaded not guilty. The evidence at trial showed that Jaime used the victim’s Discover card to make a total of $10,994.25 in transactions. A jury found her guilty on all counts. At sentencing, the court struck three of the section 484e, subdivision (d) convictions, as Jaime’s acquisition of the card could not be the basis of multiple convictions for repeated use of the account information. (People v. Jaime (Jan. 22, 2015, B252835) [nonpub. opn.].) Jaime received a sentence of six years and eight months.[2] On count 5, the remaining conviction on section 484e, subdivision (d), Jaime received a three-year sentence, stayed pursuant to section 654.
On April 22, 2015, Jaime filed a petition for recall and resentencing under section 1170.18, subdivision (a), in which (as relevant to this appeal) she requested her sentence on count 5 be stricken. The trial court denied the petition in part and granted it in part. As to count 5, the trial court denied the petition on the ground that a violation of section 484e, subdivision (d) was not reducible to a misdemeanor. The court lifted the stay on the sentence on count 5 and resentenced Jaime to eight months on count 5, to run consecutively.[3]
Jaime filed a timely appeal.
DISCUSSION
Section 484e, subdivision (d), provides: “Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.”
Proposition 47, approved by the electorate in November 2014, made certain theft offenses misdemeanors by enacting section 490.2, subdivision (a), which states: “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 . . . shall be considered petty theft and shall be punished as a misdemeanor,” with exceptions not in issue here. Section 1170.18 creates a resentencing procedure for defendants whose offenses have been reclassified as misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092–1093.)
The California Supreme Court granted review in the published decisions addressing (with conflicting results) whether a violation of section 484e, subdivision (d) may be classified as a misdemeanor under the provisions enacted by Proposition 47. (See (People v. Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9, 2016, S232212; People v. Grayson (2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757; People v. Cuen (2015) 241 Cal.App.4th 1227, review granted Jan. 20, 2016; People v. Romanowski (2015) 242 Cal.App.4th 151, review granted Jan. 20, 2016, S231405; People v. King (2015) 242 Cal.App.4th 1312, review granted Feb. 24, 2016, S231888; People v. Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9, 2016, S232212.) In Romanowski, supra, 2 Cal.5th 903 the court resolved the split of authority and held that section 484e, subdivision (d) was eligible for reduced punishment under Proposition 47. “After Proposition 47, theft of access card information ‘where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950)’ can be a misdemeanor. (§ 490.2, subd. (a).) As 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).) When stolen access card information lacks a legal market, moreover, courts may consider evidence concerning the potential for illicit sale of the access card information in order to determine its value.” (Id. at p. 917.)
Jaime has the burden of proving to the trial court that she is eligible for resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) That includes demonstrating that the value of the stolen access card information does not exceed $950. (Romanowski, supra, 2 Cal.5th at p. 916; People v. Pak (2016) 3 Cal.App.5th 1111, 1117–1118.) “[T]he $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.) Jaime’s petition and application did not give any basis for valuing the stolen access card information, and the trial court rejected her application based on its conclusion that her section 484e, subdivision (d) conviction was ineligible for reclassification as a matter of law. Therefore, whether she is eligible for resentencing on count 5 “turn[s] on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ ” Romanowski, supra, 2 Cal.5th at p. 916.)
The trial court denied Jaime’s petition as to count 5 on the ground that the violation of section 484e, subdivision (d), was not reducible to a misdemeanor as a matter of law. We therefore must remand for further proceedings, to afford Jaime an opportunity to demonstrate whether the value of the stolen access card information was less than $950, making her conviction eligible for reclassification as a misdemeanor under Proposition 47.
DISPOSITION
The order is reversed. The trial court shall reconsider Aqualina Jaime’s application for reclassification of her Penal Code section 484e, subdivision (d) conviction in light of People v. Romanowski (2017) 2 Cal.5th 903.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
[1] All further statutory references are to the Penal Code.
[2] The court also imposed a consecutive sentence of eight months in another case, resulting in a total overall sentence of seven years and four months. After resentencing, Jaime’s total sentence (including the other case) was six years and eight months.
[3] At the resentencing hearing, Jaime did not object to lifting the stay, and neither Jaime nor respondent addresses whether section 654 required that the eight-month resentence for count 5 be stayed. Nevertheless, “the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3.) The hearing transcript, in which the trial court referred to “switching” the sentences on count 4 and count 5, does not explain why the count 5 sentence, which originally was stayed, was not stayed on resentencing. On the record before us, we cannot say that the trial court committed error.
