Filed 9/28/17 P. v. Nguyen CA4/3

Opinion following reconsideration

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded.

Robert L.S. Angres, 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, Peter J. Quon, Jr., and Marilyn George, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Lap Phuong Nguyen appeals from an order denying a petition for resentencing of his conviction for violating Penal Code section 484e, subdivision (d) (unlawful acquisition of access card information) as a misdemeanor.

This is our second opinion in this case. In our first opinion we held that the trial court correctly denied the petition and we affirmed because section 484e was not listed in the relevant statute as one of the felonies for which resentencing could be sought. (People v. Nguyen (Oct. 14, 2016, G051524) [nonpub. opn.], review granted Dec. 21, 2016, S238410.) The California Supreme Court granted defendant’s petition for review, and later transferred the case back to this court for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). We now reverse and remand for further proceedings.

Analysis

In our earlier opinion, we concluded the trial court had correctly determined it could not grant defendant’s petition because section 484e was not one of the offenses eligible for resentencing under Proposition 47. (People v. Nguyen, supra, G051524.) The Supreme Court came to the opposite conclusion. “n light of section 490.2’s language and its statutory context—which includes both the other statutory provisions that Proposition 47 enacted and previously existing features of the Penal Code—we conclude that the statute’s unqualified references to ‘obtaining any property by theft’ and ‘any . . . provision of law defining grand theft’ encompass theft of access card information.” ([i]Romanowski, supra, 2 Cal.5th at p. 910.)

As to the value of the access cards, the court in Romanowski held that the value of stolen access card information was not an element of the offense when the petitioner was convicted. (Romanowski, supra, 2 Cal.5th at p. 916.) The court also held that the petitioner bears the burden of proving the value of the access card information. (Ibid.) “In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. . . . 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.’” (Ibid.)

In supplemental briefing, defendant argues, and the Attorney General concedes, that this matter should be remanded to the trial court for further proceedings on defendant’s petition for resentencing, including but not limited to an evidentiary hearing to consider the value of the stolen access card information. We agree that, in light of the Supreme Court’s opinion in Romanowski, this is the proper disposition of this matter.

Disposition

The postjudgment order is reversed and remanded to the trial court for further proceedings on defendant’s petition for resentencing.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.