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People v. Valenzuela

California Court of Appeals, Second District, Sixth Division

November 14, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
LUIS DONICIO VALENZUELA, Defendant and Appellant

         THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) March 1, 2017.

          Superior Court of Ventura County, No. 2013025724, Nancy L. Ayers, Judge.

Page 450

         COUNSEL

         Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy Public Defender, and William Quest, Deputy Public Defender, for Defendant and Appellant.

Page 451

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

         Perren, J., with Yegan, Acting P. J., and Tangeman, J., concurring.

          OPINION

          PERREN, J.

          The crime of " street terrorism" requires, inter alia, that a person actively participate in criminal street gang activity and willfully promote, further or assist in [209 Cal.Rptr.3d 861] any felonious criminal conduct of the gang. (Pen. Code, § 186.22, subd. (a).)[1] The enhancement for the commission of a felony for the benefit of a criminal street gang requires that the underlying crime be a felony. ( Id., subd. (b)(1).) Here we resolve an unanticipated consequence of the passage of Proposition 47, i.e., whether a conviction for street terrorism survives after a felony conviction that is based upon the same conduct has been reduced to a misdemeanor. We hold that it does survive because, unlike with a gang enhancement, a street terrorism conviction does not require a felony conviction; it requires only that the conduct that resulted in the conviction was felonious at the time it was committed. We therefore affirm the trial court's order denying resentencing on Luis Donicio Valenzuela's street terrorism conviction.

         FACTS AND PROCEDURAL HISTORY [2]

         In 2013, Valenzuela stole a $200 bicycle from " the person" of the victim and was convicted of grand theft. (Pen. Code, § 487, subd. (c).) In addition, an enhancement of having committed that crime for the benefit of a gang was found to be true. (§ 186.22, subd. (b)(1).) Valenzuela was also convicted of street terrorism ( id., subd. (a)), and sentenced to an aggregate term of nine years eight months in prison.

         At the time Valenzuela stole the bicycle, taking property from the person of another was classified as grand theft, irrespective of the property's value. Following the passage of section 1170.18 (Prop. 47) by voter initiative in November 2014, theft of money or property worth $950 or less, even if taken directly from another person, is " considered petty theft and ... punished as a misdemeanor." (§ 490.2, subd. (a).)

         After Proposition 47 took effect, Valenzuela successfully petitioned the trial court to reclassify his theft ...


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