Filed 7/6/16 P. v. Broyles CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E063020
v. (Super.Ct.No. RIF1203222)
ALFRED G. BROYLES, JR., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed.
Michael A. Hestrin, District Attorney, and Natalie M. Lough, Deputy District
Attorney, for Plaintiff and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Respondent.
1 INTRODUCTION
The People appeal from an order granting the petition of defendant Alfred G.
Broyles, Jr., under Proposition 47 and Penal Code section 1170.181 for resentencing of
his felony conviction of receiving stolen goods (§ 496, subd. (a)) as a misdemeanor. The
People contend that defendant failed to meet his burden of establishing that the value of
the stolen property—a credit card—was less than $950. We agree and reverse the order.
FACTS AND PROCEDURAL BACKGROUND
On June 22, 2012, defendant was charged in a complaint with receiving stolen goods,
a credit card (Pen. Code, § 496, subd. (a)—count 1), possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)—count 2), and misdemeanor resisting arrest (Pen.
Code, § 148, subd. (a)(1)—count 3). He was also charged with an allegation of a strike
prior. (Pen. Code, § 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) On July 19, 2012,
defendant pled guilty to all counts and admitted the strike prior. On the plea form,
defendant initialed the following statement: “Factual Basis: I agree that I did the things
that are stated in the charges that I am admitting.” He was sentenced to five years four
months in state prison.
On November 26, 2014, defendant filed a petition for resentencing under section
1170.18. Over the People’s objection that the stolen credit cards defendant possessed had
a collective credit limit of more than $950, the trial court granted the petition.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 DISCUSSION
Overview of Proposition 47 and Section 1170.18
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
from felonies or wobblers to misdemeanors for qualified defendants and added, among
other statutory provisions, section 1170.18. Section 1170.18 creates a process through
which persons previously convicted of crimes as felonies, which would be misdemeanors
under the new definitions in Proposition 47, may petition for resentencing. (See
generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
Specifically, Penal Code section 1170.18, subdivision (a), provides: “A person
currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . had
[Proposition 47] been in effect at the time of the offense may petition for a recall of
sentence before the trial court that entered the judgment of conviction in his or her case to
request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as
those sections have been amended or added by [Proposition 47].”
As relevant to the present case, Proposition 47 added section 490.2, which
provides as follows: “Notwithstanding Section 487 or any other provision of law
defining grand theft, obtaining any property by theft where the value of the money, labor,
3 real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor . . . .” (§ 490.2, subd. (a).)
Standard of Review
When interpreting a voter initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to
the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We
construe the statutory language “in the context of the statute as a whole and the overall
statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the
voters’ intent, particularly the analyses and arguments contained in the official ballot
pamphlet.’” (Ibid.)
Valuation of Stolen Credit Card
The People contend that “the value of a stolen credit card should be calculated by
the intended loss and potential use by the defendant, not the monetary value of the
physical card or the amount charged by the defendant.” In so arguing, the People rely on
federal appellate decisions interpreting federal sentencing guidelines under which a
defendant can be sentenced to a longer term by using the credit card limit as the value of
the “intended loss.” (See, e.g., U.S. v. Sowels (5th Cir. 1993) 998 F.2d 249, 251-252
[holding that the defendant could be sentenced to a longer term under sentencing
guidelines by using the credit limit of stolen credit cards to determine the “intended
loss”]; see also U.S. v. Harris (5th Cir. 2010) 597 F.3d 242, 256, [holding that the full
credit limit of a card could be used to calculate intended loss when “a defendant
recklessly jeopardizes the full credit limit of a card by transferring it to a third party
4 whom he does not control”]; U.S. v. Nosrati-Shamloo (11th Cir. 2001) 255 F.3d 1290,
1292.) Those cases are inapposite; the federal sentencing guidelines at issue expressly
permit consideration of the “intended loss that a defendant was attempting to inflict”
when that amount can be determined. (See U.S. v. Egemonye (1st Cir. 1995) 62 F.3d
425, 428.) The People concede that such concept of “intended loss” has no counterpart in
California law as a measure of the value of stolen property for purposes of section 496,
subdivision (a).
We believe a different approach is consistent with California’s settled legal
standard for determining the value of stolen property. That standard is “‘the fair market
value of the property and not the value of the property to any particular individual.’”
(People v. Lizarraga (1954) 122 Cal.App.2d 436, 438, quoting People v. Latham (1941)
43 Cal.App.2d 35, 39; see also § 484, subd. (a) [“In determining the value of the property
obtained, for the purposes of this section, the reasonable and fair market value shall be
the test”].) Although our research has disclosed no published California opinion on
point, we note that when there is no legal market for a stolen item, courts in other
jurisdictions have looked to “the illegal market price” and other objective evidence in
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Filed 7/6/16 P. v. Broyles CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E063020
v. (Super.Ct.No. RIF1203222)
ALFRED G. BROYLES, JR., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed.
Michael A. Hestrin, District Attorney, and Natalie M. Lough, Deputy District
Attorney, for Plaintiff and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Respondent.
1 INTRODUCTION
The People appeal from an order granting the petition of defendant Alfred G.
Broyles, Jr., under Proposition 47 and Penal Code section 1170.181 for resentencing of
his felony conviction of receiving stolen goods (§ 496, subd. (a)) as a misdemeanor. The
People contend that defendant failed to meet his burden of establishing that the value of
the stolen property—a credit card—was less than $950. We agree and reverse the order.
FACTS AND PROCEDURAL BACKGROUND
On June 22, 2012, defendant was charged in a complaint with receiving stolen goods,
a credit card (Pen. Code, § 496, subd. (a)—count 1), possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)—count 2), and misdemeanor resisting arrest (Pen.
Code, § 148, subd. (a)(1)—count 3). He was also charged with an allegation of a strike
prior. (Pen. Code, § 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) On July 19, 2012,
defendant pled guilty to all counts and admitted the strike prior. On the plea form,
defendant initialed the following statement: “Factual Basis: I agree that I did the things
that are stated in the charges that I am admitting.” He was sentenced to five years four
months in state prison.
On November 26, 2014, defendant filed a petition for resentencing under section
1170.18. Over the People’s objection that the stolen credit cards defendant possessed had
a collective credit limit of more than $950, the trial court granted the petition.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 DISCUSSION
Overview of Proposition 47 and Section 1170.18
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
from felonies or wobblers to misdemeanors for qualified defendants and added, among
other statutory provisions, section 1170.18. Section 1170.18 creates a process through
which persons previously convicted of crimes as felonies, which would be misdemeanors
under the new definitions in Proposition 47, may petition for resentencing. (See
generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
Specifically, Penal Code section 1170.18, subdivision (a), provides: “A person
currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . had
[Proposition 47] been in effect at the time of the offense may petition for a recall of
sentence before the trial court that entered the judgment of conviction in his or her case to
request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as
those sections have been amended or added by [Proposition 47].”
As relevant to the present case, Proposition 47 added section 490.2, which
provides as follows: “Notwithstanding Section 487 or any other provision of law
defining grand theft, obtaining any property by theft where the value of the money, labor,
3 real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor . . . .” (§ 490.2, subd. (a).)
Standard of Review
When interpreting a voter initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to
the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We
construe the statutory language “in the context of the statute as a whole and the overall
statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the
voters’ intent, particularly the analyses and arguments contained in the official ballot
pamphlet.’” (Ibid.)
Valuation of Stolen Credit Card
The People contend that “the value of a stolen credit card should be calculated by
the intended loss and potential use by the defendant, not the monetary value of the
physical card or the amount charged by the defendant.” In so arguing, the People rely on
federal appellate decisions interpreting federal sentencing guidelines under which a
defendant can be sentenced to a longer term by using the credit card limit as the value of
the “intended loss.” (See, e.g., U.S. v. Sowels (5th Cir. 1993) 998 F.2d 249, 251-252
[holding that the defendant could be sentenced to a longer term under sentencing
guidelines by using the credit limit of stolen credit cards to determine the “intended
loss”]; see also U.S. v. Harris (5th Cir. 2010) 597 F.3d 242, 256, [holding that the full
credit limit of a card could be used to calculate intended loss when “a defendant
recklessly jeopardizes the full credit limit of a card by transferring it to a third party
4 whom he does not control”]; U.S. v. Nosrati-Shamloo (11th Cir. 2001) 255 F.3d 1290,
1292.) Those cases are inapposite; the federal sentencing guidelines at issue expressly
permit consideration of the “intended loss that a defendant was attempting to inflict”
when that amount can be determined. (See U.S. v. Egemonye (1st Cir. 1995) 62 F.3d
425, 428.) The People concede that such concept of “intended loss” has no counterpart in
California law as a measure of the value of stolen property for purposes of section 496,
subdivision (a).
We believe a different approach is consistent with California’s settled legal
standard for determining the value of stolen property. That standard is “‘the fair market
value of the property and not the value of the property to any particular individual.’”
(People v. Lizarraga (1954) 122 Cal.App.2d 436, 438, quoting People v. Latham (1941)
43 Cal.App.2d 35, 39; see also § 484, subd. (a) [“In determining the value of the property
obtained, for the purposes of this section, the reasonable and fair market value shall be
the test”].) Although our research has disclosed no published California opinion on
point, we note that when there is no legal market for a stolen item, courts in other
jurisdictions have looked to “the illegal market price” and other objective evidence in
determining the value of a stolen item, including a credit or debit card and similar
instruments. (See, e.g., Miller v. People (1977) 193 Colo. 415, 418 [“Evidence of the
dollar amount which may be purchased by using the credit card without card company
approval provides an objective means of evaluating the illegitimate market value of credit
cards.”]; U.S. v. Tyers (2d Cir. 1973) 487 F.2d 828, 831 [jury could properly consider
street value of stolen blank money orders]; U.S. v. Bullock (5th Cir. 1971) 451 F.2d 884,
5 890 [trier of fact could consider the value of stolen money orders based on the value the
defendants obtained through “legitimate channels, or at what they might bring on the
thieves’ market”]; Churder v. U.S. (8th Cir. 1968) 387 F.2d 825, 833 [the measure of
value of stolen money orders was “the amount the goods may bring to the thief”]; State v.
McCabe (N.D. 1982) 315 N.W.2d 672, 676 [reasonable to believe that a stolen credit
card “had a ‘street value’ or ‘thieves’ market’ value in excess of $100”].)
In our view, the market value approach is most consistent with existing California
law. Because defendant failed to introduce any evidence on that issue, reversal is
required.
DISPOSITION
The order appealed from is reversed without prejudice to subsequent consideration
of a properly filed petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
CODRINGTON J.