Filed 9/25/17 P. v. Grayson CA2/6

Opinion on transfer from Suprem Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ernest Grayson appeals from the trial court’s order denying his Proposition 47 petition to resentence as misdemeanors his seven felony convictions for theft of access card information (Pen. Code, § 484e, subd. (d)).[1] (See § 1170.18, subds. (a), (b).) In appellant’s original appeal, we rejected his contention that his felony convictions qualified for resentencing under section 1170.18 and affirmed the denial of the petition. (People v. Grayson (2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757.) Appellant filed a petition for review, which the California Supreme Court granted and held along with several other similar cases.

On August 16, 2017, the Supreme Court transferred the case back to us for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). Upon reconsideration, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

Police officers apprehended appellant while he was driving a stolen vehicle. A search of the backpack found inside the vehicle yielded three access cards and four access account profiles that did not belong to appellant. The account profiles were from hotel files containing the victims’ addresses and photocopies of their identification and access cards. No monetary losses were reported.

Appellant was convicted of seven violations of section 484e, subdivision (d)—unauthorized acquisition or retention of access card account information of another. He was sentenced to two years in county jail on each count; the terms were ordered to run concurrently.

DISCUSSION

Section 484e, subdivision (d) defines each of appellant’s offenses as “grand theft.” Section 490.2, adopted as part of Proposition 47, states that “[n]otwithstanding [s]ection 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.” (Id., subd. (a).) In our original opinion, we concluded the trial court correctly determined it lacked the authority to grant appellant’s resentencing petition because section 484e, subdivision (d) is not one of the offenses eligible for reduced punishment under Proposition 47. In Romanowski, the Supreme Court reached the opposite conclusion. It held that section 484e, subdivision (d) offenses are eligible for resentencing so long as the value of the stolen information does not exceed $950. (Romanowski, supra, 2 Cal.5th at pp. 907-914.)

The record does not reflect the value of the access card information that was stolen here. As stated in Romanowski, the value of the stolen information is not an element of the offense at the time of the conviction. (Romanowski, supra, 2 Cal.5th at p. 916.) The burden of proving the newly relevant fact of value is on the petitioner, and in some cases the uncontested information in the petition and record of conviction may be sufficient. (Ibid.) “When eligibility is established in this fashion, ‘the petitioner’s felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) But in other cases, eligibility for resentencing may turn 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.’ [Citations.]” (Ibid.)

For these reasons, the trial court’s order must be reversed and the matter remanded for further proceedings on the petition. Specifically, the court shall afford appellant an opportunity to prove the value of the stolen access card information does not exceed $950, in any manner consistent with the procedures approved in Romanowski.

DISPOSITION

The order is reversed and the matter is remanded to the trial court with directions to conduct further proceedings on the petition consistent with Romanowski and this opinion.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

James D. Otto, Judge

Superior Court County of Los Angeles

______________________________

Mae G. Alberto, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.