People v. Soto

233 Cal. Rptr. 3d 515, 23 Cal. App. 5th 813
CourtCalifornia Court of Appeal, 5th District
DecidedMay 24, 2018
DocketD072319
StatusPublished
Cited by18 cases

This text of 233 Cal. Rptr. 3d 515 (People v. Soto) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Soto, 233 Cal. Rptr. 3d 515, 23 Cal. App. 5th 813 (Cal. Ct. App. 2018).

Opinion

DATO, J.

*816Israel 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 *517that his conviction was categorically ineligible for relief. Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( Anders ) and People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( 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, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( 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 *817restitution. 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, 158 Cal.Rptr. 839, 600 P.2d 1071. Pursuant to Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, 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 *518a 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, 200 Cal.Rptr.3d 190 with People v. Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319.) (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

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Cite This Page — Counsel Stack

Bluebook (online)
233 Cal. Rptr. 3d 515, 23 Cal. App. 5th 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-soto-calctapp5d-2018.