23 Cal. App. 5th 813
Cal. Ct. App. 5th2018Background
- In 2006 Soto used his grandmother's personal identifying information to obtain a credit card and made unauthorized purchases; he pled guilty to Penal Code §368, former subd. (d) (theft from an elder).
- Soto was sentenced to probation, ordered to pay $1,822.05 restitution, and his plea included a term that the conviction would be reduced to a misdemeanor upon full restitution.
- In April 2017 Soto filed a pro se petition under Prop. 47 (Pen. Code §1170.18) seeking reclassification of the felony to a misdemeanor; the trial court denied the petition as categorically ineligible.
- Appellate counsel filed an Anders/Wende brief and Soto filed a supplemental brief claiming the amount taken was $822.05, not $1,822.05.
- The court invited supplemental briefing on (1) whether §368(d) convictions are eligible for resentencing via Prop. 47’s petty-theft provision (§490.2) in light of People v. Page, and (2) whether Soto’s petition adequately pleaded eligibility; after briefing the court affirmed denial with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a §368(d) (theft from an elder) conviction is eligible for reclassification under Prop. 47 via §490.2 | Soto: his petition invoked Prop. 47 and alleged the amount was below threshold (implicitly seeking eligibility) | People: §368(d) is a “theft-plus” offense (elder element and knowledge); not within §490.2 even if underlying theft < $950 | Court: §368(d) is ineligible — it is a theft-plus offense requiring elements beyond mere theft, so §490.2 does not apply |
| Whether Soto’s petition sufficiently pleaded facts to establish eligibility and whether denial should be without prejudice | Soto: petition alleged Prop. 47 conversion and later claimed lower dollar amount | People: petition lacked allegations/record proof of value ≤ $950; court could properly deny | Court: petition was deficient on its face; but because the offense is categorically ineligible, denial is affirmed with prejudice |
Key Cases Cited
- People v. Page, 3 Cal.5th 1175 (Supreme Court) (held Prop. 47’s petty-theft provision can apply to the theft form of offenses not listed in §1170.18 where the conduct is simply theft)
- People v. Romanowski, 2 Cal.5th 903 (Supreme Court) (interpreted §490.2 broadly and addressed burden/record issues for Prop. 47 eligibility)
- People v. Bush, 245 Cal.App.4th 992 (Cal. Ct. App.) (earlier decision finding §368(d) ineligible; later distinguished)
- People v. Gonzales, 2 Cal.5th 858 (Supreme Court) (addressed Prop. 47 eligibility for offenses involving theft of financial instruments/benefits)
- People v. Segura, 239 Cal.App.4th 1282 (Cal. Ct. App.) (refused to extend Prop. 47 to conspiracy to commit theft; discussed limits on applying petty-theft provision)