Opinion
A148665
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. KRYSTAL STARR EVANS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. Nos. CRF15-9448, CRF16-9120)
Defendant Krystal Starr Evans appeals from her conviction of, among other things, felony conspiracy to commit forgery. Her sole contention on appeal is that her conspiracy conviction must be reversed because, pursuant to the provisions of Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47), the prosecution was limited to charging her with misdemeanor shoplifting. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2016, in case No. CRF15-9448, defendant admitted two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) as well as a one-strike enhancement allegation under the "Three Strikes" law (§ 1170.12). The next day, she pled guilty to one count of misdemeanor possession of a methamphetamine pipe (Health & Saf. Code, § 11364). Later that day, at the conclusion of a jury trial on the two remaining counts, defendant was also convicted of felony conspiracy to commit forgery (§§ 182, 476) and misdemeanor forgery (§ 473, subd. (b), 476).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant's co-conspirator, Ronnie Theodore Meyer, Sr. (Meyer), was jointly tried with defendant, and he too was convicted of both felony conspiracy to commit forgery and misdemeanor forgery. Meyer did not raise the applicability of Proposition 47 in his direct appeal. (People v. Meyer (Jan. 10, 2017, A148250) [nonpub. opn.].) He later did so in a pro per petition for a writ of habeas corpus, which we summarily denied. (In re Meyer on Habeas Corpus (June 29, 2017, A151687) [summary denial order].)
On May 17, 2016, in case No. CRF16-9120, defendant pled guilty to one felony count of possession of methamphetamine in jail (§ 4573.6) and admitted the same enhancement allegations as in case No. CRF15-9448.
On June 16, 2016, defendant was sentenced to a total prison term of nine years four months in both cases, consisting of the midterm of three years for felony possession of methamphetamine in jail (doubled to six years under the Three Strikes law), a consecutive eight-month term for felony conspiracy to commit forgery (doubled to one year four months under the Three Strikes law), and one year on each of the two prior prison term enhancements. The remaining charges against defendant were dismissed. Defendant timely appeals.
DISCUSSION
Defendant asserts that her felony conspiracy conviction must be reversed because, under Proposition 47, the prosecution was limited to charging her with misdemeanor shoplifting. Defendant is mistaken. Under Proposition 47, defendant was properly charged with and convicted of misdemeanor forgery (§§ 473, subd. (b), 476), a charge that was later dismissed at sentencing. (People v. Smith (2016) 1 Cal.App.5th 266, 276, fn. 6 [Proposition 47 amended section 473, the sentencing provision for forgery, to mandate misdemeanor treatment where the value of the forged instruments does not exceed $950]; People v. Maynarich (2016) 248 Cal.App.4th 77, 80 [same].) The question at hand is thus whether, in addition to misdemeanor forgery, defendant was properly convicted of felony conspiracy to commit forgery. We conclude the conviction was proper.
The Attorney General properly concedes that the value of the forged instruments is less than $950.
Our Supreme Court has repeatedly held that, absent affirmative legislative intent to the contrary, conspiracies to commit misdemeanors may be punished as felonies. (People v. Osslo (1958) 50 Cal.2d 75, 97-98; Sekt v. Justice's Court (1945) 26 Cal.2d 297, 309; Doble v. Superior Court (1925) 197 Cal. 556, 565.) The high court's conclusion is rooted in the express language of section 182, which defines conspiracies. As the court explained in People v. Osslo, supra, 50 Cal.2d 75, section 182 reflects " 'legislative intention that the words "any crime" should include all crimes—whether felonies or misdemeanors—which are known to the laws of this state and whether defined and made punishable by the Penal Code or by any other law or statute of this state.' " (Id. at p. 98.)
Where the conspiracy is to commit a felony, with certain enumerated exceptions, it is "punishable in the same manner and to the same extent as is provided for the punishment of that felony." (§ 182, subd. (a).) By contrast, where, as in the present matter, the conspiracy is to commit a misdemeanor, it is "punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine." (Ibid.) Consistent with the latter provision, defendant here was sentenced to a consecutive eight-month term (one third the midterm of two years) for felony conspiracy (doubled to one year four months under the Three Strikes law). (§ 1170, subd. (h).)
Applying these settled principles, the appellate court in People v. Tatman (1993) 20 Cal.App.4th 1 (Tatman) reiterated that "[a] conspiracy to commit a misdemeanor may be punished as a felony (Pen. Code, § 182, subd. (a)), and if the illegal object of a conspiracy is accomplished, a defendant may be separately liable for both the conspiracy and the substantive offense." (Id. at p. 7; see People v. Morante (1999) 20 Cal.4th 403, 416 ["Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy."].)
In so holding, the Tatman court emphasized that "[a] conspiracy to commit a misdemeanor does not elevate the misdemeanor to a felony." (Tatman, supra, 20 Cal.App.4th at p. 8.) Rather, "[i]t is the unlawful agreement to commit a criminal offense that constitutes a felony. The theory behind these principles is that collaborative criminal activities pose a greater potential threat to the public than individual acts. 'Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a "group danger" rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake. And even if a single conspirator reconsiders and contemplates stopping the wheels which have been set in motion to attain the object of the conspiracy, a return to the status quo will be much more difficult since it will entail persuasion of the other conspirators.' " (Ibid., quoting People v. Zamora (1976) 18 Cal.3d 538, 555.)
Contrary to defendant's assertion, nothing in Proposition 47 addresses conspiracy, much less evinces an intent to reduce the punishment for that offense set forth in section 182, subdivision (a). (People v. Segura (2015) 239 Cal.App.4th 1282, 1284 (Segura).) As Segura explained: " ' "If the language [of a statute] is unambiguous, the plain meaning controls." ' [Citation.] And here there is no ambiguity. [¶] . . . . We recognize ' " ' "[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." [Citations.]' " ' [Citation.] But we cannot conclude a literal interpretation of the statute's omission of the crime of conspiracy leads to such an 'absurd result.' Crimes committed pursuant to a conspiracy present a greater evil than crimes committed by an individual. As the court long ago realized, 'a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law.' " (Ibid.)
The holding in Segura is squarely in line with black letter law governing conspiracies. Indeed, the facts of this case are a textbook example of the enhanced threat posed by collaborative criminal endeavors. (People v. Zamora, supra, 18 Cal.3d at p. 555; Segura, supra, 239 Cal.App.4th at p. 1284; Tatman, supra, 20 Cal.App.4th at p. 8.) Defendant did not simply pass counterfeit bills on her own initiative. Rather, she and codefendant Meyer conspired to exchange counterfeit bills for legal currency and goods entrusted to defendant's care at the market where she worked. Another employee and the store's owner discovered the counterfeit bills in the market's cash register after defendant had left work. Surveillance video recorded during defendant's shift showed Meyer in the store at two different times on the day in question. The video showed defendant and Meyer exchanging a number of counterfeit bills for real money or goods on each occasion. They did so surreptitiously, in an apparent attempt to evade detection. Defendant does not challenge the sufficiency of this evidence to support her conviction for conspiracy, which required not only that she have harbored the intent to commit forgery but also the intent to agree, or conspire, to do so. (People v. Swain (1996) 12 Cal.4th 593, 600.)
Nor does People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), the case relied upon by defendant, warrant a different conclusion. In that case, Huerta was convicted of one felony count of second degree commercial burglary based on her theft of $463 worth of property from a department store. (Id. at p. 541.) Following the enactment of Proposition 47, she petitioned to have her conviction redesignated as the newly created misdemeanor of shoplifting, arguing she had entered the department store with intent to commit larceny of property valued at $950 or less. (Ibid.) The trial court granted the petition, and the People appealed. (Ibid.) On appeal, the Attorney General argued that Huerta was ineligible for resentencing because her burglary conviction was supported not only by her having entered the department store with the intent to commit larceny therein but also by her having done so with the intent to conspire to commit larceny therein. (Id. at pp. 544-545.) The appellate court properly rejected this argument, noting that to permit a felony burglary conviction premised on the latter intent would circumvent the clear mandate of Proposition 47 that where a defendant "harbored the intent to commit larceny, the new shoplifting provision directs the offense 'shall be charged as shoplifting' and further that '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.' (§ 459.5, subd. (b), italics added.)" (Id. at p. 545.)
Significantly, the Huerta court expressly noted that "[c]onspiracy played no role in the prosecution of Huerta." (3 Cal.App.5th at p. 545.) Because the prosecution in Huerta involved only burglary, the court had no occasion to address Segura or the applicability of Proposition 47 to the distinct substantive offense of conspiracy. (People v. Morante, supra, 20 Cal.4th at p. 416.) Indeed, for the reasons we have explained, Huerta and Segura are entirely consistent with one another. Their holdings simply apply to distinct substantive offenses, burglary in the case of Huerta and conspiracy in the case of Segura.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. I concur: /s/_________
Jenkins, J. POLLAK, J., Dissenting.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In my opinion defendant is entitled to resentencing in accordance with the provisions of Proposition 47.
"On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft- and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g., [Pen. Code,] §§ 459.5, subd. (a) [redefining some theft as shoplifting], 490.2, subd. (a) [redefining some grand theft as petty theft], 473, subd. (b) [changing punishment for some forgery and counterfeiting offenses].)" (People v. Abarca (2016) 2 Cal.App.5th 475, 479.) "The purpose of this and other similar changes was 'to ensure that prison spending is focused on violent and serious offenses [and] to maximize alternatives for nonserious, nonviolent crime.' " (In re J.C. (2016) 246 Cal.App.4th 1462, 1469.) To this end, Proposition 47 "(1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 . . . , and (3) amended . . . sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant asserts that her felony conspiracy-to-commit forgery conviction (§§ 182, 476) must be modified because, under Proposition 47, the prosecution was limited to charging her with misdemeanor shoplifting. Defendant bases her argument on section 459.5, enacted under Proposition 47, which defines misdemeanor shoplifting as "entering a commercial establishment with 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" $950. Because "larceny" as used in the statute means the same as "theft" (§ 490a; People v. Gonzales (2017) 2 Cal.5th 858, 869), and "theft" in turn is defined in section 484, subdivision (a) to include "knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of money, labor or real or personal property," the commission of forgery would seem to come within the meaning of shoplifting as defined in section 459.5.
Analysis of another provision of Proposition 47 leads to the same result. Section 473, subdivision (b), as amended by Proposition 47, provides: "Notwithstanding subdivision (a) [which makes forgery a "wobbler", punishable as either a felony or a misdemeanor], any person who is guilty of forgery relating to a . . . bank bill [or] note . . . where the value of the . . . bank bill [or] note . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year," subject to inapplicable exceptions. The forgery in this case was of United States currency, which "qualifies as a bank bill or note" (People v. Maynarich (2016) 248 Cal.App.4th 77, 80), and the dollar amount of the forged bills was less than $950. Therefore, for the crime of forgery in violation of section 476, the offense cannot be punished as a felony, and must be punished as a misdemeanor (Cf. Maynarich, p. 80.)
In this case defendant was convicted of conspiring to violate section 476, so that the issue is whether the conspiracy conviction is also subject to the reduced punishment mandated by Proposition 47. The Attorney General argues that it is not, relying on the brief opinion in People v. Segura (2015) 239 Cal.App.4th 1282, 1284, that concluded that resentencing under section 1170.18 for a conspiracy to commit theft was not authorized because that section "does not include . . . section 182, the conspiracy count." I find more compelling the analysis with respect to a conspiracy to commit theft in the thoughtful dictum in People v. Huerta (2016) 3 Cal.App.5th 539, 545. There, the People argued "intent to commit conspiracy is not shoplifting, and burglary predicated on such a conspiracy may be charged as a felony even after the electorate enacted Proposition 47. That may be true for some forms of conspiracy. It is not true, however, for conspiracy to commit larceny. If Huerta harbored the intent to conspire to commit larceny, she necessarily harbored the intent to commit larceny as well. Indeed, it is the People's position that Huerta engaged in a conspiracy because she shared the intent to commit larceny with an accomplice. If Huerta harbored the intent to commit larceny, the new shoplifting provision directs the offense 'shall be charged as shoplifting' and further that '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.' (§ 459.5, subd. (b), italics added.) The alleged conspiracy was directed at the theft of the same bottles of perfume as Huerta's intent to commit larceny. It follows under the plain text of the statute that prosecutors would have been required to charge her with shoplifting and could not have charged her with burglary predicated on conspiracy had Proposition 47 been in effect at the time of her offense. She therefore qualifies to have her burglary conviction redesignated as misdemeanor shoplifting." (Huerta, p. 545.)
Here, "the alleged [forgery] was directed at the [forgery of the same bills as defendant's] intent to commit [forgery]" so that the same logic should apply. Section 186, subdivision (a) states that when one conspires to commit any felony other than a crime against specified government officials, "they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony." Since the amendment to section 473 reduced the punishment for forgery to punishment for a misdemeanor, the punishment for conspiracy to commit forgery should be the same. As the majority stresses and Huerta recognizes, conspiracy to violate many misdemeanors may still be a felony. Indeed, People v. Tatman (1993) 20 Cal.App.4th 1 involved a conspiracy to violate provisions of the Fish and Game Code. We are dealing here, however, with a conspiracy to violate provisions within the scope of Proposition 47. The application of the ameliorative provisions of this proposition is entirely consistent with its stated purpose to eliminate felony prison sentences for nonviolent and nonserious offenses.
Therefore, I respectfully dissent.
/s/_________
Pollak, J.