Opinion
F070806
04-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ESIQUIEL DELEON, JR., Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF156119A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Esiquiel Deleon, Jr. (defendant) and Anthony Montano were jointly charged with vehicle theft (Veh. Code, § 10851, subd. (a) [count 1]); receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a) [count 2]); grand theft (§ 487, subd. (a) [count 3]); and receipt of stolen property (§ 496, subd. (a) [count 4]). Defendant was separately charged with resisting a police officer (§ 148, subd. (a)(1) [count 6]); and possessing burglary tools (§ 466 [count 7]). In connection with counts 1 through 4, the information alleged defendant was previously convicted of active gang participation (§ 186.22, subd. (a)), a qualifying strike under the "Three Strikes" law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); and served four prior prison terms (§ 667.5, subd. (b)). Later, counts 1 and 2 were set aside pursuant to section 995.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Montano, who is not a party to this appeal, was separately charged with resisting a police officer by means of force or violence (§ 69 [count 5]).
The jury found defendant and Montano guilty as charged on counts 3 and 4 and found defendant guilty as charged on count 6. It could not reach a verdict on count 7. In a bifurcated proceeding, the trial court found true the special allegations. At the prosecution's request, counts 4 and 7 were dismissed pursuant to section 1385.
Defendant received a total sentence of 10 years: an upper term of three years, doubled to six years pursuant to the Three Strikes law, plus four years for the four prior prison terms on count 3; and a concurrent 90 days in jail on count 6.
On appeal, defendant contends (1) his grand theft conviction must be reversed because the evidence did not demonstrate he personally stole items having value in excess of $950; and (2) in view of the Safe Neighborhoods and Schools Act (Proposition 47 or the Act), two of the prior prison term enhancements imposed on count 3 should be vacated. For the reasons set forth below, we reject these claims and affirm the judgment.
STATEMENT OF FACTS
I. Prosecution's case-in-chief.
On July 16, 2014, at approximately 6:00 a.m., an anonymous female called the Bakersfield Police Department and reported two Hispanic men suspiciously removing tools from a white work truck and hiding them in a blue garbage can in a vacant lot across from 515 Monterey Street. One of the men wore a black T-shirt while the other was shirtless. Officers Edgar Aguilera and Clifton Ary were dispatched to the site. Upon his arrival, Aguilera observed defendant and Montano standing near a white truck bearing the name of PCL Industries (PCL), an oil field construction company. Defendant wore a black shirt and Montano was shirtless. When the duo saw Aguilera, they ran away. As they were fleeing, defendant and Montano each discarded a "shiny metal object." While defendant darted through adjacent residential property and initially eluded capture, Aguilera and Ary tracked down and apprehended Montano.
Officer Marc Lugo and his K-9 partner Kyro arrived on the scene. Ary "point[ed] in the general direction where he last saw [defendant] running." At 519 Monterey Street, Lugo asked for and received permission from the homeowner to search the premises. Before entering the backyard, Lugo twice announced:
"Attention area. This is Bakersfield Police Department Police K-9. Come out right now. Make yourself known or I'll send my dog. And if he finds you, he will bite you."There was no response. Lugo then instructed Kyro to detect a scent. The dog led him to the east side of the residence, which was cluttered with lawn furniture and overgrown shrubbery. Lugo spotted defendant crouching underneath a table beside the fence line and commanded, "Police K-9. Come out right now. I see you. Come out." Defendant did not budge. Lugo warned, "You're going to get bit." When defendant still refused to emerge, Lugo released Kyro, who bit defendant's boot and dragged him out.
Officer Francisco Esguerra examined the truck. The doors were locked and the windows were rolled up, but various storage containers appeared to be pried open. Two "pin bars," which resembled crowbars and were used by PCL workers "in the process of setting the generator," laid on the ground a few feet southwest of the truck. Esguerra showed the pin bars to Aguilera, who believed they looked similar to the metal objects discarded by defendant and Montano. Esguerra searched a blue garbage can nearby and found more tools. Richard Franco, PCL's generator crew superintendent, confirmed the truck's storage containers had been intact a day earlier and the recovered tools belonged to the company.
John Burns, PCL's warehouse supervisor who was responsible for purchasing materials, estimated a total resale value of $1,165.75 for the stolen items based on the assumption each item would fetch 50 percent of its retail price.
II. Defense's case-in-chief.
Steven Magnus, a pawnbroker, testified that used tools in good quality generally resold at 20 percent of the retail price. He viewed photographs of the recovered tools and opined they could not be resold at 50 percent of the retail price.
Destinie Martinez, a crime lab technician, analyzed latent prints collected from the truck's surface. She determined they did not belong to either defendant or Montano.
DISCUSSION
I. Substantial evidence supported defendant's grand theft conviction.
a. Standard of review.
"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible[,] and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.]" (Tripp, supra, at p. 955, italics omitted.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
"This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" (Tripp, supra, 151 Cal.App.4th at p. 955.)
b. Analysis.
"Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another . . . is guilty of theft." (§ 484, subd. (a).) "Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft." (§ 486.) "Grand theft is theft committed . . . [¶] . . . [w]hen the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950) . . . ." (§ 487, subd. (a).) "[T]he elements necessary to prove grand theft are the taking of personal property (which . . . must exceed $[95]0 in value) from the owner, into the possession of the criminal without the consent of the owner or under a claim of right, the asportation of the subject matter, and . . . the specific intent to deprive the owner of his property wholly and permanently." (People v. Walther (1968) 263 Cal.App.2d 310, 316; accord, People v. Whitmer (2014) 230 Cal.App.4th 906, 922.) "This requisite intent may be shown circumstantially." (People v. Walther, supra, at p. 316.)
The record, viewed in the light most favorable to the prosecution, demonstrates defendant and Montano pried open various storage containers aboard the PCL work truck, removed tools and other items exceeding $950 in value, and concealed them in a nearby garbage can. When Aguilera and Ary arrived on the scene, defendant and Montano fled and tried to get rid of what appeared to be crowbars. In particular, defendant surreptitiously hid in a nearby backyard and remained silent after Lugo gave him multiple opportunities to surrender. A rational trier of fact could find the elements of grand theft were established beyond a reasonable doubt.
Defendant concedes "the evidence established that [he and Montano] took tools from a utility truck" and "[t]he evidence established that the value of all the stolen items somewhat exceeded $950." Nonetheless, he argues his grand theft conviction must be reversed because "the evidence . . . did not establish . . . that [he] personally took property valued in excess of $950." (Italics added.) Not so. Here, defendant and Montano were direct perpetrators who acted in concert to thieve. Under such circumstances, the aggregate value of the stolen property is dispositive. (See, e.g., People v. Hess (1970) 10 Cal.App.3d 1071, 1075; People v. Hardy (1969) 275 Cal.App.2d 469, 470-471; People v. Graham (1967) 251 Cal.App.2d 513, 517-518; People v. Daniels (1948) 85 Cal.App.2d 182, 189 [in each case, multiple defendants acted in concert to take personal property exceeding the threshold value set forth under the grand theft statute].)
Because defendant and Montano were direct perpetrators, we disagree with the notion defendant could only be convicted on a theory of vicarious criminal liability.
II. The trial court properly imposed the challenged prior prison term enhancements.
a. Background.
Defendant was previously convicted of grand theft (§ 487, subd. (c)) in 1997; possession of phencyclidine for sale (Health & Saf. Code, § 11378.5) in 2000; gang participation (§ 186.22, subd. (a)) in 2004; and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in 2010. He served a term in prison for each offense.
On October 29, 2014, in a bifurcated proceeding, the court found true the four prior prison term allegations, inter alia. On November 26, 2014, the court imposed four one-year prior prison term enhancements on count 3.
b. Analysis.
Proposition 47 was enacted by voters on November 4, 2014, and went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) It reduced certain felony or wobbler theft- and drug-related offenses to misdemeanors, unless they were committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) The Act, inter alia, (1) added section 490.2, which defines misdemeanor "petty theft" as "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)" "[n]otwithstanding Section 487 or any other provision of law defining grand theft"; and (2) amended Health and Safety Code section 11377, which categorizes possession of a controlled substance as a misdemeanor. Proposition 47 also established a mechanism by which a person who has completed his or her sentence for a conviction of a felony that was made a misdemeanor can apply to the trial court that entered the judgment of conviction and have the felony offense designated as a misdemeanor:
"(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.
"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor. [¶] . . . [¶]
"(k) Any felony conviction that is . . . designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (§ 1170.18.)
The specified statutes contain restrictions and prohibitions on firearm possession for certain persons.
Defendant contends two of the prior prison term enhancements imposed on count 3 should be vacated because the offenses underlying his convictions in 1997 and 2010—grand theft and possession of a controlled substance, respectively—were reduced to misdemeanors once Proposition 47 became effective. However, the record does not establish he filed an application to designate these convictions as such pursuant to section 1170.18, subdivision (f). Those seeking to avail themselves of the benefits of Proposition 47 must first file a petition in the superior court (People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1254, 1257):
The reporter's transcript shows defense counsel did invoke Proposition 47, arguing defendant could not be convicted of both grand theft (count 3) and receipt of stolen property (count 4) in view of the Act. The prosecutor agreed and, upon his request, count 4 was dismissed. --------
" 'When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in
determining the voters' intent and understanding of a ballot measure.' [Citation.]
"Here, the plain language of section 1170.18 . . . demonstrates that . . . for persons . . . who have completed . . . a sentence [for a felony reduced by Proposition 47], the remedy lies in the first instance by filing . . . an application to redesignate . . . in the superior court of conviction. [Citations.] Defendant has completed his sentence[s] for his conviction[s]. In order for his . . . conviction[s] to 'be considered . . . misdemeanor[s] for all purposes[, except firearm rights]' [citation], which is the necessary predicate of his contention that his section 667.5, subdivision (b) enhancement[s] must be stricken, he must file an application under section 1170.18, subdivision (f) to have [each] offense designated as a misdemeanor in the superior court of conviction . . . ." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332.)
Defendant claims he "is excused from bringing a petition to the Superior Court seeking re-designation of the 1997 and 2010 convictions to misdemeanors because Proposition 47 was already in effect before judgment was imposed with use of those prior convictions for purposes of enhancement in this case." His suggestion that these prior convictions were automatically downgraded, without any action on his part, would require us to countenance an interpretation that renders nugatory section 1170.18. This we cannot do. (See People v. Kirk (2006) 141 Cal.App.4th 715, 720.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.