Filed 8/11/17 P. v. Gatson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JEANETTE ROMIE GATSON,

Defendant and Appellant.


E064446

(Super.Ct.No. RIF1303382)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan and Helios (Joe) Hernandez, Judges. Reversed in part and affirmed in part with directions.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
In April 2014, defendant and appellant Jeanette Romie Gatson pleaded guilty to 37 felony counts of violating various provisions of the Penal and Health and Safety Codes, and admitted to five prison prior allegations (Pen. Code, § 667.5, subd. (b)) and two alleged out-on-bail enhancements (§ 12022.1). The trial court imposed an aggregate sentence of 15 years in state prison.
Subsequently, Gatson sought relief pursuant to the Safe Neighborhoods and Schools Act, enacted as Proposition 47 in the November 2014 election. The trial court granted Gatson some of the relief she requested, reducing 13 of the 37 convictions to misdemeanors, and striking an out-on-bail enhancement related to one of the reduced counts. The trial court denied the petition with respect to the remaining 24 counts and a second out-on-bail enhancement. It also denied Gatson’s request to dismiss four of the five prison prior enhancements on the basis that the underlying convictions had been reduced to misdemeanors pursuant to Proposition 47. The trial court resentenced Gatson to an aggregate term of nine years eight months in prison.
On appeal, Gatson contends that the trial court should have granted her petition with respect to 16 additional counts—eight second degree burglary convictions (§ 459), and eight convictions for theft or attempted theft of access card information (§ 484e, subd. (d))—and the four prison prior enhancements. We reverse and remand the matter with instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, Gatson pleaded guilty to 37 felony counts, including three counts of identity theft (§ 530.5, subd. (c)(3); counts 1, 28, 36); one count of forgery (§ 476; count 2); one count of possession of a forged check (§ 475, subd. (c); count 3); one count of counterfeiting (§ 480, subd. (a); count 4); seven counts of receiving stolen property (§ 496, subd. (a); counts 5-7, 13, 15, 17, 29); nine counts of second degree burglary (§ 459; counts 8-9, 19, 21, 23-25, 34-35); one count of possession of ammunition by a felon (§ 30305, subd. (a); count 10); two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); counts 11, 31); seven counts of theft of access card information (§ 484e, subd. (d); counts 12, 14, 18, 20, 22, 26-27); one count of attempted theft of access card account information (§§ 484e, subd. (d), 664; count 16); one count of petty theft with priors (§ 666; count 30); one count of unlawfully driving a vehicle with priors (§ 666.5, subd. (a); count 32); one count of receiving a stolen vehicle (§ 496d, subd. (a); count 33; and one count of theft with priors (§§ 484, subd. (a), 666, subd. (a); count 37). She admitted two out-on-bail allegations (§ 12022.1), one related to count 31, the other related to counts 32 through 37. She also admitted five prison prior allegations (§ 667.5, subd. (b)).
The trial court (Judge Helios (Joe) Hernandez) sentenced Gatson to an aggregate term of 15 years in state prison. This sentence consisted of two years with respect to count 4, plus consecutive terms of 8 months with respect to counts 1 through 3 and 5 through 10, two years each for the two out-on-bail enhancements, and one year each for three prison prior enhancements. The trial court imposed concurrent sentences with respect to the remaining counts, and ordered that the two other prison prior enhancements to be stricken.
Subsequently, Gatson sought relief under Proposition 47 in the present case, as well as with respect to some of her prior convictions. In the present case, the trial court (Judge Dugan) reduced 13 of the 37 counts—specifically, counts 2 through 3, 5 through 7, 11, 13, 15, 17, 29, 30 through 31, and 37—to misdemeanors. It struck the out-on-bail enhancement related to count 31, but declined to strike the other out-on-bail enhancement, related to counts 32 through 37. It denied Gatson’s petition with respect to the remaining 24 counts. It took judicial notice that the convictions underlying four of the five prison prior enhancements had been reduced to misdemeanors under Proposition 47, but declined Gatson’s request that they be stricken on that basis.
On September 11, 2015, the trial court (Judge Dugan) resentenced Gatson to an aggregate term of nine years eight months in state prison. It arrived at this total by subtracting the two-year sentence previously imposed for the stricken out-on-bail enhancement, and the eight-month sentences previously imposed for counts 2, 3, 5, 6, and 7, noting that the sentences for the remaining counts that had been reduced to misdemeanors had been imposed “concurrently, so they don’t affect the outcome.” Put another way: In effect, on resentencing, the trial court imposed a two-year sentence with respect to count 4, plus consecutive terms of eight months for each of counts 1, 8, 9, and 10, two years for the remaining out-on-bail enhancement, and one year each for three prison prior enhancements, with the sentences for the remaining counts running concurrent, and the remaining two prison prior enhancements stricken.
II. DISCUSSION
Gatson asserts three primary contentions regarding her requests for relief under Proposition 47: (1) the trial court should have also reduced to misdemeanors eight second degree burglary counts (counts 8, 9, 19, 21, 23, 24, 25, and 34); (2) the trial court should have also reduced to misdemeanors eight counts of theft or attempted theft of access card information (counts 12, 14, 16, 18, 20, 22, 26, and 27); and (3) the trial court should have dismissed four of her five prison prior enhancements, since the underlying convictions had been reduced to misdemeanors by the time of her resentencing. We address each of these contentions in turn.
A. The Trial Court Erred by Determining That Eight of Gatson’s Burglary Convictions Do Not Qualify as Shoplifting.
Gatson argues that, contrary to the findings of the trial court, the facts underlying eight of her nine burglary convictions fall within the scope of the offense of “shoplifting” defined in section 459.5. We agree.
Proposition 47 added section 459.5, which provides in part as follows: “Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with the 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).” (§ 459.5, subd. (a).) Shoplifting, as newly defined in section 459.5, is a misdemeanor, unless the offense was committed by certain ineligible defendants. (§ 459.5, subd. (a).)
The trial court found that the facts underlying the eight burglary counts at issue did not fall within the section 459.5 definition of shoplifting. Seven of those counts involved Gatson entering a retail store and using a stolen credit card to buy merchandise; the eighth involved entry into a bank to deposit a forged check.
They argue, however, that the matter should be remanded with respect to counts 8 and 9, for the trial court to make a determination as to the value of the property taken or intended to be taken. We agree. Count 8 was apparently based on a single entry into a retail store during which Gatson twice attempted to use a stolen credit card, resulting in a successful $3 transaction and an unsuccessful transaction, the amount of which is not reflected in our record. The trial court denied relief with respect to count 8 based on its erroneously narrow definition of shoplifting, without considering value. It is not apparent whether Gatson could carry her burden of demonstrating that the value of the property she stole or intended to steal was below the statutory threshold. (§ 459.5, subd. (a); see also People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski) [“The ultimate burden of proving section 1170.18 eligibility lies with the petitioner.”].) But she should be given an opportunity to make the necessary evidentiary showing.
Similarly, in the proceedings in the trial court, Gatson’s counsel represented that the transactions charged under count 9 totaled $875.18 in value. But the trial court made no explicit ruling adopting that representation as a factual finding, and it is not apparent from the record whether the prosecution has a basis to dispute it. The trial court should decide the matter in the first instance, after the defense and the prosecution have each had a full and fair opportunity to present their evidence.
In short, Gatson’s petition should have been granted with respect to counts 19, 21, 23 through 25, and 34. The facts underlying counts 8 and 9 fall within the statutory definition of shoplifting, if the value of the property at issue was less than $950; on remand, the trial court will have to make the factual determination regarding value after an evidentiary hearing.
B. The Trial Court Erred by Determining That Section 484e, Subdivision (d) Convictions Do Not Qualify for Relief Under Proposition 47.
Gatson asserts that the trial court erred by determining that theft of access card account information was not a “qualifying felony” under Proposition 47. The People contend, among other things, that she forfeited the issue, because her trial counsel did not preserve the issue for appeal. We address the issue on the merits, and agree with Gatson.
First, the issue of forfeiture. In the trial court, Gatson’s counsel conceded that convictions for theft of access card account information in violation of section 484e, subdivision (d) do not qualify for relief under Proposition 47. “As a general rule, only ‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People v. Smith (2001) 24 Cal.4th 849, 852.) Nevertheless, “where as here, an appellant poses a question of law, the appellate court can exercise its discretion to address the issue.” (In re Julien H. (2016) 3 Cal.App.5th 1084, 1089.)
Here, we exercise our discretion to address the issue. Recently, the California Supreme Court decided it in favor of Gatson: “Proposition 47 reduces the punishment for theft of access card information in violation of section 484e, subdivision (d).” (Romanowski, supra, 2 Cal.5th at p. 917.) The trial court’s conclusion to the contrary was erroneous. If the value of the property taken was less than $950, Gatson’s convictions for theft of access card information are eligible to be reduced to misdemeanors. (Ibid.; see § 490.2, subd. (a).)
In Romanowski, the Supreme Court specified how the value of the property taken is properly determined with respect to convictions under section 484e, subdivision (d): “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. [Citation.] 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.” (Romanowski, supra, 2 Cal.5th at p. 917.) The matter must be remanded for the parties to present any evidence they may have, and for the trial court to make the necessary factual determinations, regarding value under the standard articulated in Romanowski with respect to Gatson’s section 484e, subdivision (d) convictions.
C. The Trial Court Erred by Imposing Prison Prior Enhancements Where the Underlying Conviction Had Been Reduced to a Misdemeanor Before Resentencing.
Gatson argues that the trial court erred at her resentencing by imposing prison prior term enhancements that were based on convictions that had previously been reduced from felonies to misdemeanors pursuant to Proposition 47. We agree.
Proposition 47 created, among other things, a new resentencing provision, section 1170.18. Under section 1170.18, “[a] person who, on November 5, 2014, was serving” a felony sentence for an offense that is now a misdemeanor under Proposition 47 may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) Whether this resentencing provision applies to previously imposed enhancements is, as of this writing, under review by the California Supreme Court, with People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900, as the lead case. Pending final resolution of the issue, the courts of appeal have attempted to grapple with its various permutations.
In People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah), defendant was tried and convicted prior to the enactment of Proposition 47, but sentenced after. (Abdallah, supra, at p. 739.) The trial court imposed a prison sentence including, among other things, a one-year enhancement for a felony prison prior (§ 667.5, subd. (b)), just after it had reduced the felony underlying that enhancement to a misdemeanor pursuant to Proposition 47. (Abdallah, supra, at p. 740.) The court of appeal found error, holding that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from subsequently relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). (Abdallah, supra, at p. 746.) As Abdallah points out, the California Supreme Court has described the elements required to qualify for a prison prior enhancement as follows: “the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563; see Abdallah, supra, 246 Cal.App.4th at p. 742.) And as Abdallah concludes, the first of those required elements is eliminated when the defendant’s prior conviction is redesignated a misdemeanor “‘for all purposes’” under section 1170.18, subdivision (k). (Abdallah, supra, at p. 746.)
In People v. Jones (2016) 1 Cal.App.5th 221 (Jones), this court affirmed the trial court’s order denying the defendant’s motion to strike a prison prior enhancement of his sentence based on the circumstance that the underlying felony conviction had been reclassified as a misdemeanor after his conviction was final and he had begun serving his prison sentence. (Id. at p. 228.) We held that “section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow offenders to request and courts to grant retroactive designation of offenses . . . but no provision allows offenders to request or courts to order retroactively striking or otherwise altering an enhancement based on such a redesignated prior offense.” (Id. at p. 230.) We found that “the direction of section 1170.18, subdivision (k) that any redesignated conviction ‘shall be considered a misdemeanor for all purposes,’ applies, at most, prospectively to preclude future or non-final sentence enhancements based on felony convictions redesignated as misdemeanors under Proposition 47.” (Ibid.)
Together, Abdallah and Jones teach that once a conviction is reduced to a misdemeanor pursuant to Proposition 47, it may not subsequently be used as the basis for enhancing a new sentence, but section 1170.18 does not provide a mechanism for recall of a sentence and resentencing solely to strike an enhancement that is part of a sentence that is otherwise final.
These principles, however, do not answer the question presented in this appeal. Unlike the defendant in Abdallah, Gatson’s case was final before she sought relief under Proposition 47. Unlike the defendant in Jones, Gatson’s petition pursuant to section 1170.18 was granted with respect to some of her current charges, requiring that she be resentenced. We must decide whether, at Gatson’s resentencing, the trial court may impose one or more of her prison prior enhancements, the underlying convictions for which were reduced to misdemeanors pursuant to Proposition 47 after her original sentence became final.
Recognizing that reasonable minds may differ on the issue, we conclude that it may not. For the court to recognize the current status of a prior conviction is not the same thing as giving Proposition 47 retroactive effect. When a sentence is recalled pursuant to section 1170. 18, the subsequent resentencing “encompasses the entire sentence, not merely the portion attributed to the qualifying felony.” (People v. Cortez (2016) 3 Cal.App.5th 308, 316.) Moreover, “the resentencing is supposed to occur as if Proposition 47 had already passed at the time of the original sentencing.” (Id. at p. 315.) The trial court has broad authority to “revisit” sentencing decisions to reach a new “‘appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case,’” albeit with the limitation that the new sentence may be no greater than the original sentence. (Id. at pp. 516-517; see § 1170.18, subd. (e) [“Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.”].) It is a prospective, not retroactive, application of Proposition 47 to resentence Gatson based on current facts, rather than on a set of facts that existed at some fixed point in the past. It follows that the trial court has no authority to impose a prison prior enhancement based on a felony conviction that had been previously designated as a misdemeanor pursuant to Proposition 47. (Abdallah, supra, 246 Cal.App.4th at p. 746.)
We conclude, therefore, that the trial court erred when it resentenced Gatson to a new aggregate sentence that included time for prison prior enhancements based on felony convictions that had, prior to resentencing, been designated as misdemeanors pursuant to Proposition 47. The sentence must be vacated, and the matter remanded for the trial court to exercise its authority to revisit previous sentencing decisions and impose a new appropriate aggregate sentence that does not include any such enhancements.
Starting from a blank slate, the trial court would have had the discretion to impose a new aggregate sentence of no greater than Gatson’s original sentence of 15 years. (§ 1170.18, subd. (e).) Here, however, the trial court is not starting from a blank slate. The prohibition on double jeopardy in the California Constitution (art. I, § 15) generally prohibits imposition of a greater sentence upon resentencing following an appeal. (People v. Collins (1978) 21 Cal.3d 208, 216-217.) On remand, therefore, Gatson’s new aggregate sentence must be no greater than nine years and eight months.
III. DISPOSITION
The judgment is reversed in part and affirmed in part with directions as follows:
We reverse the trial court’s rulings denying relief under Proposition 47 with respect to the challenged second degree burglary convictions (counts 8, 9, 19, 21, 23, 24, 25, and 34) and theft or attempted theft of access card information convictions (counts 12, 14, 16, 18, 20, 22, 26, and 27), as well as the four prison prior allegations, the underlying convictions of which had been reduced to a misdemeanor prior to resentencing (priors 1, 2, 4, and 5).
The sentence imposed on September 11, 2015, is vacated.
We affirm the judgment in all other respects.
The matter is remanded to the trial court for further proceedings consistent with this opinion, including without limitation: (1) to conduct an evidentiary hearing regarding value with respect to counts 8 and 9; (2) to enter a new order granting Gatson’s petition with respect to the counts for which relief was previously granted (counts 2-3, 5-7, 11, 13, 15, 17, 29, 30-31, and 37), the challenged second degree burglary convictions (19, 21, 23, 24, 25, and 34, as well as counts 8 and 9 if the trial court finds the value of property at issue in those two counts to be below the statutory threshold), and theft or attempted theft of access card information convictions (counts 12, 14, 16, 18, 20, 22, 26,


and 27); and (3) to resentence Gatson pursuant to section 1170.18, subdivision (b), to a term of no greater than nine years eight months.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:


MILLER
Acting P. J.

SLOUGH
J.