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People v. Soto

California Court of Appeals, Fourth District, First Division

May 24, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
ISRAEL SOTO, Defendant and Appellant.

          APPEAL from an order of the Superior Court of San Diego County, No. SCD202626 David J. Danielsen, Judge. Affirmed.

          Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, and Adrian R. Contreras, Deputy Attorney General, for Plaintiff and Respondent.

          DATO, JUDGE.

         Israel Soto appeals an order denying his petition to reduce to a misdemeanor his felony conviction for theft from an elder. (Pen. Code, § 368, subd. (d).)[1] He sought relief under section 1170.18, the Safe Neighborhoods and Schools Act, which was enacted by California voters in November 2014 pursuant to Proposition 47. The trial court denied Soto's petition on the basis that his conviction was categorically ineligible for relief. Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende), and Soto filed a supplemental brief on his own behalf.

         We asked for supplemental briefing on whether Soto's conviction under section 368, subdivision (d) was eligible for reclassification under Proposition 47 following People v. Page (2017) 3 Cal.5th 1175 (Page). Having reviewed the submissions, we conclude Soto is ineligible for relief and affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2006, Soto helped his grandmother change her telephone service provider. While talking to the operator, he memorized her birthdate and social security number. He later impersonated his grandmother to obtain a new credit card on her account in his name and used it to make unauthorized retail purchases.[2] Soto was charged with theft from an elder of a value exceeding $400 (§ 368, former subd. (d), added by Stats. 2004, ch. 893, § 1) and using the personal identification of another (§ 530.5, subd. (a)).

         In December 2006, Soto pled guilty to section 368, subdivision (d) and the People dismissed the remaining charge. Pursuant to the terms of his plea agreement, Soto's conviction was to be reduced to a misdemeanor once he paid full restitution. At sentencing, the court suspended imposition of the sentence and placed Soto on probation for three years, subject to certain terms and conditions. It entered a "no contact" order preventing further contact with the victim and ordered Soto to pay $1, 822.05 in victim restitution. It also imposed a $200 restitution fine and a $200 probation revocation fine, stayed unless probation was revoked. (§§ 1202.4, subd. (b), 1202.44.)

         Soto filed a pro per petition in April 2017 seeking reclassification of his offense to a misdemeanor (§ 1170.18, subd. (f)). His handwritten argument section was three sentences long and stated simply that Proposition 47 converted felonies to misdemeanors. The court denied the petition, deeming the underlying conviction under section 368, subdivision (d) categorically ineligible for reclassification under section 1170.18.

         Appointed appellate counsel filed a brief summarizing the facts and proceedings before the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following issue that might arguably support the appeal: "whether the court erred as a matter of law in finding appellant's conviction for violating Penal Code section 368, subdivision (d), was ineligible for Proposition 47 relief, and if so, whether the record supported a finding that his conviction met the $950 or less statutory threshold."

         Soto filed a supplemental brief, in which he claimed he spent only $822.05 on his grandmother's credit card, not $1, 822.05, and asked us to review the purchases allegedly made. He also argued that his family would be willing to write a letter "to cancel" the civil judgment of "1, 822.05 dollars."

         We asked counsel to submit supplemental briefs on the following issues: "(1) Is Soto's conviction for theft from an elder under Penal Code section 368 eligible for resentencing under Penal Code section 1170.18? (Compare People v. Bush (2016) 245 Cal.App.4th 992, 1001-1005 with People v. Page (2017) 3 Cal.5th 1175.) (2) If the conviction is eligible, did Soto's petition include sufficient 'allegations, testimony, or record references' for the trial court to determine his eligibility for resentencing under Penal Code section 1170.18; if the present petition is insufficient, is Soto 'entitled to an opportunity to file a new petition meeting the statutory requirements'? (See Page, supra, 3 Cal.5th at p. 1189.)"

         Soto's appellate counsel filed a letter brief arguing that Page, supra, 3 Cal.5th 1175 requires reversal; the People filed a brief taking the contrary view.

         DISCUSSION

         1. The Parties Agree That Soto's Petition Was Deficient

         "A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility." (Page, supra, 3 Cal.5th at p. 1188.) Defense counsel concedes that Soto's petition was devoid of allegations, testimony, or record references from which the trial court could determine whether Soto was convicted of theft of a value $950 or less. (Id. at p. 1189.) This information was also not apparent from the record. During the plea soliloquy, Soto admitted he obtained property "of a value over $400" or "exceeding $400." The trial court ordered victim restitution of $1, 822.05 but never made a finding as to the value of property taken. Although Soto claims on appeal he only spent $822.05, he never made argument or presented relevant evidence to the trial court. Because Soto did not meet his burden of proof to establish his eligibility for Proposition 47 relief, his petition was properly denied. (Ibid.)

         The real question presented by this appeal is whether we should affirm the order denying Soto's petition to reduce his offense to a misdemeanor with or without prejudice. Page affirmed the denial of a petition without prejudice because "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, " and "neither had yet been judicially articulated when defendant submitted his petition for recall." (Page, supra, 3 Cal.5th at p. 1189.) It concluded the defendant was "entitled to an opportunity to file a new petition meeting the statutory requirements" and explained that "[s]uch a ...


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