Opinion
C089188
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. MELANIE LYNN VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62160234A)
Following the trial court's denial of her "motion for dismissal and/or reclassification," defendant Melanie Lynn Vasquez, pleaded no contest to, and was convicted of, felony conspiracy to commit shoplifting. The trial court issued a certificate of probable cause on the question defendant raised unsuccessfully in her motion. On appeal, defendant contends: (1) the trial court erred in finding a factual basis for her plea; and (2) we must reverse the conviction, because her plea was based on the illusory promise that she could raise on appeal the argument she made in her motion. We conclude the trial court did not err in finding a factual basis for the plea and did not make an illusory promise. Accordingly, we affirm the judgment.
FACTS AND PROCEEDINGS
In 2018, defendant and her coconspirator drove to a TJ Maxx store in Rocklin. The coconspirator parked in front of the store and stayed in the vehicle as defendant went into the store. Defendant picked up several purses, with a total value of about $400, left the store without paying, returned to the waiting vehicle, and rode away.
On January 1, 2019, the Legislature passed Penal Code section 490.4 which established the crime of organized retail theft. (Stats. 2018, ch. 803, § 1; unless otherwise stated, statutory section references that follow are to the Penal Code.) Given the circumstances of defendant's crime, if she could be found to have violated this statute, her crime would have been a misdemeanor. (§ 490.4, subd. (b).)
A March 2019 information charged defendant with one count of felony conspiracy to commit shoplifting (count one; §§ 182, subd. (a)(1), 459.5), and one count of misdemeanor shoplifting (count two). Defendant filed a "motion for dismissal and/or reclassification" of the conspiracy count, arguing that in light of section 490.4, her charged conduct was "punishable as a misdemeanor . . . rather than the felony" of conspiracy to commit shoplifting, because section 490.4 is a "specific statute that states that shoplifting in concert is a misdemeanor."
The trial court denied the motion, invoking principles of "separation of powers between the judicial branch and the executive branch" in concluding that the "DA's office [should be permitted to] decide which of [the] many statutes . . . relating to theft . . . to charge" defendant with violating. The trial court explained that the "new offense" of organized retail theft "has . . . different sorts of elements to it that are not part of [section] 182, conspiracy to commit a petty theft."
Immediately after that ruling, defendant pleaded no contest to the conspiracy count agreeing to a 16-month sentence concurrent to a sentence in an unrelated matter. Defendant sought reassurance from her counsel and the trial court that she would be able to appeal the denial of her motion. Defense counsel stated that he would file a notice of appeal and request a certificate of probable cause, on the "issue of first impression because of the new statute." Defendant addressed the trial court directly: "If I plead no contest, am I still able to appeal, Your Honor?" The trial court replied, "Yes."
The prosecutor provided a factual basis for defendant's plea, which was "spelled out in Rocklin Police Department Report No. 18-177-6," and defendant and her counsel agreed that factual basis was correct. After finding a factual basis for the no contest plea to the conspiracy charge, the trial court accepted the plea, and the shoplifting charge was dismissed.
At the sentencing hearing, the trial court denied defendant's motion pursuant to section 17, subdivision (b), to reduce her crime to a misdemeanor. Consistent with the plea agreement, the court sentenced defendant to 16 months in state prison for the crime to run concurrently with a two-year sentence in a different case.
Defendant timely appealed and filed a request for a certificate of probable cause. In the request, defendant explained that her "Motion to Dismiss or Reclassify the charge of conspiracy to commit shoplifting to a violation of [ ] section 490.4 -- organized retail theft -- was filed in this matter. The Motion was denied. [¶] Since the conduct in this case is addressed by a specific statute that states that shoplifting in concert is a misdemeanor, it cannot also be charged and punished a felony conspiracy. [¶] . . . [¶] But for the denial of her Motion, [defendant] would not have pleaded to a felony in this matter." The trial court granted the request for a certificate of probable cause.
DISCUSSION
I
Conspiracy to Commit Shoplifting and Section 490 .4
Defendant contends the trial court erred in finding a factual basis for her plea to conspiracy to commit shoplifting, "as conspiracy to commit shoplifting is not a crime under Proposition 47."
On appeal, defendant does not specifically challenge the trial court's refusal to redesignate her offense as one brought under section 490.4. No doubt thinking that, given her plea, the redesignation argument is not cognizable on this appeal, a proposition with which we disagree as we discuss post, she focuses her argument here on the continued viability of the crime of conspiracy to commit shoplifting after the passage of Proposition 47. We will address both arguments.
A. Section 490.4
We first turn to section 490.4.
According to defendant's argument in the trial court, the enactment of section 490.4 was intended to address shoplifting committed by persons acting in concert and it superseded and nullified the crime of conspiracy to commit shoplifting.
Section 490.4 states in relevant part as follows:
"(a) A person who commits any of the following acts is guilty of organized retail theft . . .
"(1) Acts in concert with one or more persons to steal merchandise from one or more merchant's premises . . . with the intent to sell, exchange, or return the merchandise for value.
"(2) Acts in concert with two or more persons to receive, purchase, or possess merchandise described in paragraph (1), knowing or believing it to have been stolen.
"(3) Acts as an agent of another individual or group of individuals to steal merchandise from one or more merchant's premises . . . as part of an organized plan to commit theft.
"(4) Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake any of the acts described in paragraph (1) or (2) or any other statute defining theft of merchandise." (§ 490.4, subd. (a).)
As can be seen from the wording of the statute, section 490.4 defining "organized retail theft" is a statute of limited reach and is intended to curtail shoplifting schemes undertaken by defendants who have organized themselves to commit shoplifting for financial gain and, as such, the statute addresses a rather narrow class of crimes. Where there is no evidence that a defendant's acts come with the provisions of section 490.4, even if the defendant acted with another, there can be no violation of that statute.
On this record, there was no evidence defendant intended to sell or exchange the stolen property for value (subd. (a)(1)), acted in concert with two others to receive or purchase stolen property (subd. (a)(2)), acted as an agent of another individual or group to steal merchandise (subd. (a)(3)), or recruited, coordinated, etc. another to undertake the acts made illegal by the statute (subd. (a)(4)). Under these factual circumstances, a charge of a violation of section 490.4 was not a sustainable charge.
B. Conspiracy to Commit Shoplifting
As an alternative to her "reclassification" argument, defendant contends that, after Proposition 47, California no longer has a crime of conspiracy to commit shoplifting.
Recognizing a split of authority on the question whether "burglary predicated on a conspiracy to commit larceny may be charged as a felony after the passage of Proposition 47," defendant urges us to side with People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), and rule that defendant "could only be charged with misdemeanor shoplifting, not conspiracy, under the plain language of section 459.5."
The People argue the record shows there was an adequate factual basis for the plea and that Proposition 47 does not apply to felony conspiracy to commit shoplifting.
In Huerta, defendant pleaded guilty to second degree commercial burglary in violation of section 459. After the passage of Proposition 47 and in light of the fact that the merchandise she stole did not have a value in excess of $950, she moved to have her conviction redesignated as the newly created misdemeanor of shoplifting in violation of section 459.5. The trial court granted defendant's motion and the People appealed. (Huerta, supra, 3 Cal.App.5th at p. 541.)
On appeal, the People argued the trial court erred because defendant "entered the store with another person with whom she shared the intent to commit conspiracy" in violation of section 182. (Huerta, supra, 3 Cal.App.5th at p. 541.)
The Court of Appeal affirmed the trial court's order for redesignation. Meeting the People's argument, the court observed that, if defendant "harbored the intent to conspire to commit larceny, she necessarily harbored the intent to commit larceny as well" which brought her within the provisions of section 459.5. (Huerta, supra, 3 Cal.App.5th at p. 545.)
The Court of Appeal in People v. Martin (2018) 26 Cal.App.5th 825 (Martin) came to a different conclusion. In Martin, defendant was convicted of felony conspiracy to commit petty theft in violation of section 182, subdivision (a)(1). After the passage of Proposition 47, she petitioned to have her felony sentence recalled and to be resentenced to misdemeanor shoplifting pursuant to section 459.5 and section 1170.18. The trial court granted the petition and, as in Huerta, the People appealed. (Martin, at p. 828.)
The Court of Appeal reversed the trial court's order granting the petition and, agreeing with the result in People v. Segura (2015) 239 Cal.App.4th 1282, held that the crime of conspiracy to commit petty theft remains a crime notwithstanding the passage of Proposition 47. (Martin, supra, 26 Cal.App.5th at pp. 831-834.)
Construing the language of Proposition 47, the Martin court found that "[s]ections 1170.18, subdivision (a) and 459.5 are not ambiguous. They make clear that the trial court could recall respondent's felony sentence for conspiracy to commit petty theft and resentence her to misdemeanor shoplifting only if her crime would have been shoplifting had Proposition 47 been in effect at the time of the offense. Section 459.5, subdivision (a) defines '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. The statute does not say that a conspiracy to commit shoplifting shall be charged as simple shoplifting. Without such language, we cannot construe section 459.5 as prohibiting the charging of a conspiracy." (Martin, supra, 26 Cal.App.5th at p. 835.)
Refusing to construe the statute in a manner having the effect of adding to or subtracting from the statute's language, the court was "loathe to add the following italicized language to section 459.5, subdivision (b): 'Any act of shoplifting as defined in subdivision (a) or any conspiracy to commit shoplifting shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with conspiracy to commit shoplifting or with burglary or theft of the same property.' " (Martin, supra, 26 Cal.App.5th at p. 835.)
If it was the intent of Proposition 47 to achieve that result, it is up to the Legislature to amend the statute.
Finally, the Martin court observed that "The courts have long recognized the enhanced dangers of a conspiracy. Almost a hundred years ago, [the Court of Appeal] remarked: '[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.' (People v. Welch (1928) 89 Cal.App. 18, 22.) 'The theory . . . 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. [Citations.]" [Citations.]' (People v. Tatman (1993) 20 Cal.App.4th 1, 8, quoting People v. Zamora (1976) 18 Cal.3d 538, 555-556.)" (Martin, supra, 26 Cal.App.5th at p. 836.)
We agree with the result and the reasoning in Martin. Proposition 47, properly construed, did not sound the death knell for the crime of conspiracy to commit shoplifting.
II
The Factual Basis for Defendant's Plea
It appears that defendant's argument as to the factual basis for her plea is that, because she could only properly be charged with a violation of section 490.4, the factual basis accepted by the court which supported a plea to a violation of section 182 subdivision (a)(1), conspiracy to commit shoplifting as set forth in section 459.5, was factually insufficient because it did not state facts that would support a violation of section 490.4 which, according to defendant, was the only legally cognizable charge.
"Pursuant to section 1192.5, the trial court is obligated to determine whether there is a factual basis for a plea of guilty or no contest when that plea arises from a negotiated resolution of the charges. [Citation.] Although not constitutionally required [citation], such an inquiry furthers constitutional considerations attending a guilty plea [citation], protects against the entry of a guilty plea by an innocent defendant, and makes a record in the event of appellate or collateral attacks on that plea. [Citation.] . . . . A sufficient factual inquiry must be considered a necessary component of the legality of the proceedings." (People v. Marlin (2004) 124 Cal.App.4th 559, 571.)
A trial court may "satisfy itself [that] there is a factual basis for the plea . . . by having the defendant describe the conduct or answer questions, by detailing a factual basis, or by having defense counsel stipulate to a particular document such as the transcript of a preliminary hearing as providing a factual basis for a plea. [Citation.] The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea. [Citations.] . . . . 'The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.' " (People v. Marlin, supra, 124 Cal.App.4th at pp. 571-572.)
Because we have found that a charge of conspiracy to commit shoplifting in violation of section 182 remains a crime under California law and section 490.4 does not apply given the facts of this case, the question then becomes whether there was an adequate factual basis placed on the record in the trial court to support the conspiracy charge.
Here, the prosecutor referenced the police report of the incident, and provided a brief narrative of the crime: defendant entered a store, left the store with merchandise she did not pay for, and left the area of the store in a vehicle driven by another, who waited for defendant in front of the store. Defendant and her counsel agreed that the prosecutor's narration provided a sufficient factual basis for the no contest plea admitting that she engaged in a conspiracy to commit shoplifting. The prosecutor's reference to a particular document (the police report) and description of material facts of the crime, and defendant's affirmative response to the trial court's question whether the prosecutor stated a factual basis for the no contest plea, amount to at least a prima facie factual basis for the plea. Because the factual basis set forth was sufficient, there was no error.
III
Illusory Promise of Right to Appeal
Defendant contends we must reverse her conviction because her plea "was based on the illusory promise that the . . . denial of her motion to dismiss or redesignate [the conspiracy charge] would be arguable on appeal." The People argue the "issue is cognizable on appeal because defense counsel complied with section 1237.5" by seeking and obtaining a certificate of probable cause. Therefore, defendant "was not induced by any mistake of the trial court."
We conclude there was no "illusory promise" by the trial court, as defendant could raise in this appeal the claim that she was not charged under the proper statute.
A no contest plea "is deemed to constitute a judicial admission of every element of the offense charged. (People v. DeVaughn (1977) 18 Cal.3d 889, 895.) [¶] . . . [¶] Issues concerning the defendant's guilt or innocence are not cognizable on appeal from a guilty plea. [Citations.] By admitting guilt, a defendant waives an appellate challenge to the sufficiency of the evidence of guilt. [Citations.] The same restrictions on appellate issues apply after a no contest plea [citations] and the admission of an enhancement [citation]. [¶] In order to appeal after a conviction by plea of guilty or nolo contendere, a defendant must obtain a certificate of probable cause from the trial court. [Citation.] 'Issues cognizable on an appeal following a guilty plea are limited to issues based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" resulting in the plea. [Citations.] The issuance of a certificate of probable cause pursuant to section 1237.5 does not operate to expand the grounds upon which an appeal may be taken . . .' (People v. DeVaughn, supra, 18 Cal.3d 889, 895-896.)" (People v. Voit (2011) 200 Cal.App.4th 1353, 1363-1364.)
"[A] claim that the plea . . . was improperly induced would challenge the legality of the proceedings resulting in the plea and would thus be cognizable on an appeal pursuant to section 1237.5." (People v. DeVaughn, supra, 18 Cal.3d at p. 896, italics omitted.)
Defendant relies on People v. DeVaughn and Voit for the propositions that (1) since she pleaded no contest, she cannot raise an argument on appeal that the trial court "erred in refusing to classify count one as misdemeanor shoplifting"; (2) because the aforementioned claim is not cognizable, the trial court made an "illusory promise" to her when it told her she could appeal the issue; and, (3) that illusory promise improperly induced her plea warranting reversal.
Voit does not help defendant, as her reading of the case is too limited. Voit explained that a claim a defendant's "admission included a legal impossibility" is cognizable on appeal after a plea of guilty or no contest. (See People v. Voit, supra, 200 Cal.App.4th at p. 1365 ["A defendant may also assert that his admission included a legal impossibility. (People v. Soriano (1992) 4 Cal.App.4th 781, 783 [no contest plea to filing a forged instrument when a death certificate does not qualify as an instrument])"] (Soriano).)
The case Voit cited for the proposition -- People v. Soriano -- is instructive. The defendant pleaded no contest to a charge of violating section 115 "in that he attempted to file a 'forged instrument, to wit, a death certificate.' . . . [¶] [On appeal], [t]he parties agree[d] that [the defendant's] guilty plea was defective because a death certificate [was] not an 'instrument' within the meaning of Penal Code section 115, i.e., a writing which transfers title to or creates a lien on real property, or gives a right to a debt or duty [citation]." (Soriano, supra, 4 Cal.App.4th at p. 783.) Even so, the People argued that the defendant could not appeal his conviction because he failed to show jurisdictional grounds going to the legality of the proceedings. (Id. at p. 784.)
Disagreeing with the People, the court ruled that defendant's "legal impossibility" claim was "jurisdictional and therefore cognizable on appeal after a guilty plea." (Soriano, supra, 4 Cal.App.4th at pp. 784-785, fn. omitted.) The court held that "since a trial court's acceptance of a negotiated plea that patently includes a legally impossible admission constitutes an act in excess of its jurisdiction, the validity of such a plea is an issue cognizable on appeal if the procedural requirements of Penal Code section 1237.5 are met." (Id. at p. 783.)
The court explained its "legal impossibility" conclusion: the defendant "could not have been guilty of violating Penal Code section 115 by attempting to file a forged instrument because, as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115." (Soriano, supra, 4 Cal.App.4th at p. 784.)
Thus, Soriano's "legal impossibility" holding -- reaffirmed by Voit -- stands for the proposition that a defendant who pleads guilty or no contest may argue on appeal that he entered his plea to a statute that it was legally impossible for him to have violated.
And that, in essence, is the thrust of defendant's appeal, and was the thrust of defendant's unsuccessful motion in the trial court: that she was charged with violation of a criminal statute that no longer existed as a matter of law. Thus, defendant assumes too much on appeal, and contrary to her contention, she could have raised the claim that she was charged with a crime that did not exist.
Accordingly, we reject defendant's argument that we must reverse her conviction because her plea was based on an "illusory promise."
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
BUTZ, J.