California Cases October 18, 2019: People v. Owen

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 16WF1322)

OPINION

Appeal from a judgment and a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and dismissed in part.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marvin E. Mizell and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

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Hayden Anthony Owen pleaded guilty to one count of felony theft of access card account information and one count of felony identity theft. He appeals from an order denying his petition under Penal Code section 1170.18, subdivision (a) (section 1170.18(a)) for resentencing under Proposition 47. We conclude he was ineligible for relief. Owen also argues his sentence was unauthorized and the felony convictions should be reduced to a single count of misdemeanor shoplifting. We dismiss that part of the appeal because Owen did not seek and obtain a certificate of probable cause.

In June 2016, Owen was charged by felony complaint with one count of theft of access card account information (§ 484e, subd. (d)) and one count of identity theft (§ 530.5, subd. (a)). In September 2016, he pleaded guilty to the charges. On the plea form, as the factual basis for the plea, he wrote: "[O]n January 21, 2016, I acquired and retained possession of access card information with respect to an access card validly issued to Ann H., without consent of Ann H., with the intent to use the card information fraudulently. I also unlawfully obtained personal identifying information of Ann H., and used that information to obtain goods without consent of Ann H., with intent to defraud."

The trial court accepted the guilty plea. Owen was placed on probation for five years and ordered to pay restitution and statutory fines and fees.

In July 2018, Owen filed a petition under section 1170.18(a) to be resentenced to one count of misdemeanor shoplifting (§ 459.5, subd. (a)) instead of felony convictions for theft of access card account information and identity theft. Owen also filed a petition under section 1170.18, subdivisions (f) and (g) to have his felony convictions designated as misdemeanors. The district attorney did not oppose the

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petition under section 1170.18, subdivisions (f) and (g) as to the conviction for theft of access card account information.

The trial court denied the petition under section 1170.18(a) on the ground Owen was ineligible for relief. What happened to the petition under section 1170.18, subdivisions (f) and (g) is unclear. The court minutes have an entry of "Motion denied," which we construe as applying to both petitions.

Owen filed a notice of appeal on the judicial council form. On the form, he checked the box indicating the appeal was based on the sentence or other matters occurring after the plea that do not affect the validity of the plea and a box indicating the appeal was "after a Petition under [section] 1170.18(a)."

A. Denial of Section 1170 . 18(a) Petition

Section 1170.18(a) reads: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, 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 plain meaning of a statute controls when the statutory language is unambiguous. ( Fluor Corp . v . Superior Court (2015) 61 Cal.4th 1175, 1198; see People v . Briceno (2004) 34 Cal.4th 451, 459 [rules of statutory construction apply to voter initiatives].) Section 1170.18(a) unambiguously states that a party who "on November 5, 2014 was serving a sentence for conviction" may petition for relief. On November 5, 2014, Owen was not serving a sentence for the felony convictions. He was not charged

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until June 2016 and did not plead guilty until September 2016. Under the plain meaning of section 1170.18(a), Owen was not eligible for relief.

B. Reducing Felony Convictions to a Single Misdemeanor Conviction

Owen argues his felony convictions for theft of access card account information and identity theft should be reduced to and designated as a single misdemeanor under section 459.5, subdivision (a) (section 459.5(a)). He argues the offenses for which he was convicted constitute, by definition, shoplifting under section 459.5(a). To the extent Owen argues he is entitled to such relief independent of section 1170.18(a), we agree with the Attorney General the appeal should be dismissed.

Proposition 47, passed by the voters in 2014, created the new crime of shoplifting. ( People v . Gonzales (2017) 2 Cal.5th 858, 862.) Section 459.5(a) defines the crime of shoplifting as "entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)."

The Attorney General argues the appeal should be dismissed because Owen did not obtain a certificate of probable cause under section 1237.5. "[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for

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the appeal." ( People v . Mendez (1999) 19 Cal.4th 1084, 1095.) Section 1237.5 should be applied "in a strict manner." ( People v . Mendez , supra , at p. 1098.)

Two exceptions to the certificate of probable cause requirement of section 1237.5 have been recognized. A defendant may take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere without a certificate of probable cause if the defendant seeks appellate review of (1) the validity of a search or seizure the lawfulness of which was contested under section 1538.5 or (2) errors occurring in adversary proceedings conducted after entry of the plea for purposes of determining the degree of the crime and the penalty to be imposed, and the defendant does not challenge the validity of the plea itself. ( People v . Lloyd (1998) 17 Cal.4th 658, 663-664; see Cal. Rules of Court, rule 8.304(b)(4).)

Owen pleaded guilty to, and was convicted of, two felonies. By arguing those two felonies must be reduced to a single misdemeanor, he is challenging the judgment of conviction and the legality of his plea. Because Owen did not obtain a certificate of probable cause, his appeal on that ground must be dismissed.

The order denying Owen's petition under section 1170.18(a) is affirmed. The appeal is otherwise dismissed.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.