Filed 6/13/22 P. v. Morrow CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In 2005, defendant Katrina Morrow pleaded no contest to felony counts of identity theft and altering public records based on acts she committed while working at the Department of Motor Vehicles (DMV). Several years later, she filed a petition to dismiss both charges under Penal Code section 1203.4 and to reduce the identity-theft conviction to a misdemeanor under Penal Code section 17, subdivision (b) (section 17(b)).[1] The trial court dismissed both convictions under section 1203.4 but denied the section 17(b) request. On appeal, Morrow claims that the court erred by declining to reduce the identity-theft conviction to a misdemeanor because the court (1) improperly presumed the offense was ineligible to be reduced and (2) failed to consider facts specific to her case. We affirm.

I.
Factual and Procedural
Background

Morrow worked as a technician for the Daly City DMV.[2] Over a five-month period beginning in the summer of 2004, she issued fraudulent driver’s licenses and identification cards to several customers, using other individuals’ personal information to which she had access. In March 2005, she was charged with five felony counts of identity theft and five felony counts of altering public records.[3] She pleaded no contest to one count of each crime, and the remaining charges were dismissed. That September, the trial court suspended imposition of the sentence and placed Morrow on probation for three years.

Approximately 15 years later, Morrow filed a petition for relief under sections 1203.4 and 17(b). In August 2020, the trial court denied the petition on the basis that Morrow had “an outstanding balance with revenue services.” Three months later, Morrow filed another petition for relief under the same statutes after confirming that only her supervision fees were outstanding. She sought to dismiss both convictions under section 1203.4 and to reduce the identity-theft conviction to a misdemeanor under section 17(b).[4] In a declaration submitted with the petition, Morrow wrote that she took full responsibility for her past actions and the impact they had on others. She also submitted supporting letters from various employers detailing her exemplary conduct.

The People did not oppose Morrow’s request to dismiss both convictions under section 1203.4. They did oppose her request to reduce the identity-theft conviction to a misdemeanor, arguing, “[W]hile the People do not presently have access to the facts of the case, based on the convictions alone, it was obviously a case in which [Morrow], an officer in a trusted position, did something nefarious (stealing, destroying, or falsifying) with court documents and stole the identity of a third party. . . . This is not misdemeanor conduct and neither conviction should be reduced.” Thus, although Morrow acknowledged in the petition that the public-records offense was not eligible for reduction, the People erroneously believed she also sought to reduce that offense to a misdemeanor.

In March 2021, the trial court granted relief under section 1203.4 and dismissed both charges, but it declined to reduce the identity-theft conviction to a misdemeanor. On the form order denying relief under section 17(b), the court checked the box indicating the ruling applied to “ALL FELONY CONVICTIONS in the above-titled action” and wrote in, “The charge is not eligible for reduction.”

The following month, Morrow filed a renewed petition for relief under section 17(b). After noting the trial court’s basis for previously denying that relief, she explained that identity theft under section 530.5(a) is a wobbler offense and her conviction could in fact be reduced to a misdemeanor. In May 2021, the trial court again denied relief under section 17(b), this time on the ground that “[t]he conduct in this case was severe and was not misdemeanor conduct.” Although Morrow’s renewed petition did not include a request for dismissal under section 1203.4, which the court had already granted, the court also checked a box “den[ying] the petition for dismissal” under section 1203.4 and explained, “The conduct in this case was severe.”

II.
Discussion

A. General Legal Standards

Identity theft under section 530.5(a) is a wobbler offense, meaning it can be sentenced as either a misdemeanor or a felony. (§ 17(b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez); People v. Baratang (2020) 56 Cal.App.5th 252, 260; see § 530.5(a).) Section 17(b) authorizes a trial court “to determine the nature of [a wobbler] at the time of sentencing or later, namely ‘on application of the defendant or probation officer’ after the trial court has granted probation ‘without imposition of sentence.’ ” (People v. Tran (2015) 242 Cal.App.4th 877, 887 (Tran), quoting § 17(b)(3).)

A trial court has broad discretion to decide whether to reduce a wobbler offense to a misdemeanor. (Alvarez, supra, 14 Cal.4th at p. 977.) “ ‘This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” (Ibid.) The court must consider all relevant circumstances and rule within “the perimeters drawn by individualized consideration of the offense, the offender, and the public interest.” (Id. at p. 978.) In the case of a later petition for section 17(b) relief, the court may properly consider postconviction evidence such as “the defendant’s conduct on probation, postprobation behavior, efforts at rehabilitation, and the longevity and duration of [the defendant’s] rehabilitation.” (Tran, supra, 242 Cal.App.4th at p. 892.)

We review the denial of a section 17(b) petition for an abuse of discretion. (See Alvarez, supra, 14 Cal.4th at pp. 977–978; Tran, supra, 242 Cal.App.4th at pp. 891–892.) It is the defendant’s burden “ ‘to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Alvarez, at pp. 977–978.)

B. The Trial Court Did Not Abuse Its Discretion in Declining to Reduce the Identity-theft Conviction to a Misdemeanor.

Morrow claims that the trial court denied her relief based on section 530.5(a)’s description of the crime, effectively applying a “non-statutory presumption” that identity theft cannot be reduced to a misdemeanor under section 17(b). She also claims that the court failed to consider facts specific to her case. We are not persuaded on either count.

Morrow argues that the trial court’s use of an improper presumption is demonstrated because the original order denying relief under section 17(b) stated that “ ‘[t]he charge is not eligible for reduction.’ ” As discussed above, the People incorrectly believed that Morrow also sought to reduce the public-records conviction to a misdemeanor and argued that it was not a wobbler. Compounding this mistake, the court then declined to reduce either conviction to a misdemeanor on the same basis. Although this was an error, Morrow did not appeal from the original order. Instead, the only order on review is the court’s denial of the renewed petition for section 17(b) relief, in which the court ruled that Morrow’s conduct was too serious to warrant reduction. Thus, it appears that after Morrow brought the error to the court’s attention, the court reconsidered its original ruling and changed its basis for denial, not that the court hewed to its original conclusion that the conviction was ineligible to be reduced.

Morrow also claims that “there is no evidence the trial court . . . considered any facts specific to her—other than the fact she was convicted of violating . . . section 530.5(a). Instead, assumptions based on the text of [that provision] were substituted for a fact-based consideration of the circumstances.” Although the People argued that the conviction alone established the “nefarious” nature of Morrow’s crime, the court’s statement that her conduct was too “severe” to warrant section 17(b) relief does not demonstrate that the court adopted the People’s reasoning. Rather, while the People acknowledged that they did not have any information about the underlying facts, the court had substantial briefing and documentation before it that elucidated the crime’s circumstances and Morrow’s subsequent behavior. At oral argument, Morrow’s counsel argued that the record does not demonstrate the trial court necessarily considered this information. But it also does not demonstrate the court did not consider this information, and we must therefore presume that it did.

In addition, although Morrow emphasizes that the trial court did not mention any facts on which it based its decision, it was not required to do so. On appeal, we presume that a sentencing court considered all relevant factors, and reliance on the court’s silence does not meet Morrow’s affirmative burden to show the sentencing decision was irrational or arbitrary. (People v. Gollardo (2017) 17 Cal.App.5th 547, 562; see Alvarez, supra, 14 Cal.4th at p. 977.) Morrow points out that the challenged order also purported to deny relief under section 1203.4, even though the same judge had recently granted the same relief, and argues that this indicates there was little consideration of the record. While it appears the court incorrectly believed Morrow had again petitioned to dismiss the convictions, we do not see how this mistake about the relief sought suggests the court did not properly evaluate the section 17(b) claim. To the contrary, the court’s changed reasoning for denying that claim suggests it did perform a fact-specific analysis.

Finally, to the extent Morrow claims the trial court abused its discretion because it could not reasonably deny relief based on the record as a whole, we reject the claim. In suggesting the court improperly evaluated the seriousness of the offense, she points out that the original sentencing judge assessed a $200 restitution fine, which was then the statutory minimum under section 1202.4. She argues that since that statute “mandates that the amount of [the] restitution fine imposed be ‘commensurate with the seriousness of the offense,’ ” the original judge likely “did not find the conduct overly severe.” But even if this is true, the trial court was not bound by the original judge’s evaluation. Rather, the probation report, which the court was entitled to consider (Tran, supra, 242 Cal.App.4th at p. 887), provided significant evidence supporting the conclusion that Morrow’s conduct was serious. The report detailed her sophistication in issuing fraudulent identification, and it explained that the victims were particularly vulnerable and she took advantage of her position of trust. And although we acknowledge that Morrow submitted favorable evidence about her character and rehabilitation, that evidence had to be balanced against other factors and did not compel the court to grant her relief. (See id. at p. 892.) Ultimately, we cannot say that the court’s ruling exceeded the bounds of reason in light of all the relevant circumstances.

III.
Disposition

The May 7, 2021 order denying the petition under section 17(b) is affirmed.

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Wiss, J. *

*Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Morrow A163022

[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] The underlying facts are drawn from the probation report.

[3] The counts of identity theft were brought under section 530.5, subdivision (a) (section 530.5(a)), and the counts of altering public records were brought under Government Code section 6200.

[4] Even if a conviction is dismissed under section 1203.4, it continues to subject the defendant to various “penalties and disabilities,” including the need to disclose the conviction under certain circumstances and the possibility the conviction will be pled as a prior conviction in a future proceeding. (§ 1203.4, subd. (a)(1).) Thus, even if a felony conviction is dismissed under this provision, the defendant can still benefit from having the conviction reduced to a misdemeanor under section 17(b).