IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
April 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRANDY YVONNE CHILDRESS, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF092757)
The opinion of the court was delivered by: Hoch, J.
P. v. Childress
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Brandy Yvonne Childress of receiving stolen property. (Pen. Code, § 496, subd. (a).)*fn1 At sentencing, the trial court denied defendant's motion to reduce the conviction to a misdemeanor. The court suspended imposition of sentence and placed defendant on probation for three years on the condition that she serve 90 days in jail.
On appeal, defendant contends that the trial court abused its discretion by denying her motion to reduce her conviction to a misdemeanor. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 14, 2009, Parole Agent Larry Dunn was conducting routine compliance checks on parolees, including Justin Cannon. Agent Dunn found Cannon at an apartment on Reeves Avenue in Yuba City. Cannon stated that he had been living at the apartment for about four days. Pursuant to Cannon's parole conditions, Agent Dunn searched the apartment. Defendant, Cannon's wife, was standing in the front door. She stated that she lived in the apartment. Also present were Mary Ann Lewis and a number of small children. Lewis was on probation at the time.
On a bed in the only bedroom in the apartment, Agent Dunn found a blank check belonging to Linda J. Fox, a legal form bearing the signature of "Linda J. Fox," a debit card, and a business card. The back of the business card had what appeared to be "some personal information, account number, social security number, that type of thing."
Yuba City Police Department Detective Aaron Moe asked defendant if she knew Fox. Defendant responded that she had known Fox for about a week and had been to Fox's residence to fill out an online job application. When the detective asked whether defendant's apartment contained any property belonging to Fox, defendant initially gave no answer. When the detective asked how defendant came into possession of the check, she explained that she had left a folder at Fox's house. When the folder was returned to defendant a few days later, it inexplicably contained Fox's blank check and debit card. Defendant admitted that she had been in possession of the check for four days.
Later that evening, Detective Moe interviewed Fox, who was very upset at the theft of her check and personal information. At trial, Fox testified that she had not given anyone permission to possess her blank checks. Fox confirmed that the business card found in defendant's bedroom was inscribed with Fox's bank card number, social security number, date of birth, and home address. Fox had not given anyone permission to write down this personal information. Fox noted that she had not signed the scrap of paper found in defendant's bedroom even though it appeared to be the signature of "Linda J. Fox."
Testifying on her own behalf, defendant claimed that she did not know about Fox's property being in her apartment until Detective Moe showed the items to her. Defendant stated that she had been lying when she told the detective she had been in possession of Fox's check for four days. Defendant did not know why she had lied.
Defendant contends the trial court abused its discretion in denying her motion to reduce her conviction of receiving stolen property to a misdemeanor. We are not persuaded.
Subdivision (a) of section 496 prohibits receiving stolen property by providing, in pertinent part, that "[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year."
Possession of stolen property may be prosecuted as a felony or a misdemeanor because the offense is punishable by either a prison or jail term. As relevant to this case, section 17 provides: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."
The trial court has broad discretion in ruling on a motion to reduce a felony conviction to a misdemeanor. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.) The California Supreme Court has held that in ruling on a motion to reduce a conviction to a misdemeanor, the trial court should consider the nature and circumstances of the offense and the defendant's criminal history. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978-979 (Alvarez).)
We will not disturb the trial court's ruling unless the defendant "'clearly show[s] 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.' (People v. Superior Court (Du) [(1992)] 5 Cal.App.4th [822,] 831.) Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' (People v. Preyer (1985) 164 Cal.App.3d 568, 573.)" (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
The trial court did not abuse its discretion when it ruled that defendant's conviction should not be reduced to a misdemeanor. The court properly considered defendant's prior criminal offense. As the trial court noted, that offense was committed when defendant "and two - or three male companions were found driving a stolen vehicle, and they fled. And she did admit that she was affiliated with the Barrio Linda Rifa Gang. That was only back in '03, which doesn't seem that long ago."
In deciding whether to reduce the conviction to a misdemeanor, the trial court was entitled to consider "the defendant's appreciation of and attitude toward the offense . . . ." (Alvarez, supra, 14 Cal.4th at p. 978.) Here, the court noted that defendant's motion was premised on a minimization of her guilt. The court explained, "She hasn't done anything that shows me that she's taking any responsibility for where she finds herself. And from where I'm sitting, she is giving me the kind of sophisticated criminal argument that, you didn't really pin it on me as firmly as it could have been pinned . . . ; therefore no harm, no foul." On appeal, defendant continues in seeking to shift the blame onto Cannon and Lewis in a manner that ignores the fact that the jury rejected her testimony and convicted her. The evidence at trial showed that the stolen items were found lying openly on defendant's bed and that she initially admitted having at least Fox's check for four days prior to the search of her apartment.
The trial court properly took into account defendant's criminal history and lack of appreciation of her role in the current offense when it denied the motion to reduce her conviction from a felony. Accordingly, there was no abuse of discretion in denying the defense's motion.
The judgment is affirmed.
We concur: BLEASE , Acting P.J. NICHOLSON , J.