Caretto v. Super. Ct. ( 2018 )

Filed 11/1/18; Opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PAUL ANTHONY CARETTO, B265256
Petitioner, (Los Angeles County
v. Super. Ct. No. BA384603)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. William N.
Sterling, Judge. Petition granted.
Ronald L. Brown, Public Defender of Los Angeles County,
Albert J. Menaster, Olivia Sula-Wang, and Mark Harvis, Deputy
Public Defenders for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, and Mary Sanchez, Deputy Attorney
General for Real Party in Interest.
_____________________________
Petitioner Paul Anthony Caretto challenges by petition for
writ of mandate the trial court’s denial of his petition for
resentencing pursuant to Penal Code section 1170.18, a provision
added by Proposition 47.1 We previously denied his petition,
holding that his felony conviction for receiving stolen property
under section 496 was not subject to reduction to a misdemeanor
because the fair market value of the two stolen debit cards in his
possession was more than $950 as measured by the amounts in
the victim’s bank accounts linked to the cards, the only evidence
of value in the record.
The California Supreme Court granted review and
transferred the matter to us with directions to vacate our
decision and reconsider the issue in light of People v.
Romanowski (2017) 2 Cal.5th 903 (Romanowski). Romanowski
confirmed that the “ ‘reasonable and fair market value’ ” test
from section 484 is the proper measure of the $950 value
threshold for theft crimes. (Romanowski, at p. 914.) As applied
to stolen access card information, the court held the fair market
value is measured by “how much [the] stolen access card
information would sell for” (id. at p. 915), which can include
“evidence concerning the potential for illicit sale of the access
card information” (id. at p. 917).
After Romanowski, our prior ruling remains correct.
Romanowski set the proper valuation test as fair market value
and held that evidence of illicit sales could be considered, but the
1 All statutory references are to the Penal Code unless
otherwise indicated.
2
court did not limit the type of evidence that might be relevant to
show fair market value. In our view, the balances in linked
accounts could certainly be relevant evidence of the fair market
value. But because Romanowski was decided after the trial court
proceedings in this case, we grant Caretto’s writ petition and
remand for the trial court to give him the opportunity to present
evidence of the fair market value of the stolen cards consistent
with Romanowski.
BACKGROUND
We take the facts from our prior opinion:2 Caretto was
initially charged with attempted robbery under section 211,
acquisition of access card account information under section 484e,
subdivision (d), and receiving stolen property under section 496—
a driver’s license and two debit cards. He was also charged with
possession of methamphetamine under Health and Safety Code
section 11377.
On May 10, 2011, Caretto was detained by the police in
connection with an attempted robbery investigation. When he
was searched, the police found methamphetamine. The police
also found two stolen debit cards and a stolen driver’s license,
all in the name of the same victim. The police questioned
Caretto, and he denied ever using the debit cards. At the end of
the preliminary hearing, the magistrate dismissed the robbery
and acquisition of access card account information charges based
upon insufficiency of evidence.
On August 22, 2011, Caretto pled no contest to the
remaining charges and admitted three one-year prison prior
allegations pursuant to section 667.5, subdivision (b), that were
2
(Caretto v. Superior Court of Los Angeles County (May 19,
2016, B265256) [nonpub. opn.].)
3
added in the amended information. Caretto was sentenced to
four years in prison and execution of the sentence was suspended.
He was granted four years of probation but never saw his
probation officer and was later caught with burglary tools.
On May 7, 2015, Caretto appeared for a probation violation
hearing. The trial court appointed a public defender and
suggested that a motion to reduce the charges under Proposition
47 might be appropriate. The next day Caretto filed a one-page
motion asking that the two charges for which he was convicted be
reduced to misdemeanors under Proposition 47. While he alleged
the value of the stolen property was less than $950, he did not
identify the stolen property or attach a declaration or other
evidence showing the value of the stolen property did not exceed
$950.
During the May 21, 2015 hearing, the People opposed the
motion, arguing the value of the stolen debit cards was the
amount of funds available in the linked bank accounts. Caretto’s
counsel disagreed and argued the value was the intrinsic value of
the plastic cards themselves. The court asked for further briefing
on the issue of how to determine the value of bank debit cards.
The court suggested the prosecutor attempt to contact the victim
to ascertain whether the bank debit cards were “valid.” The court
stated that, although it was the defense’s burden to prove that
the value of the debit cards was less than $950, it wanted the
parties to “cooperate.” There was no discussion on resentencing
of Caretto’s conviction for possession of methamphetamine under
Health and Safety Code section 11377, subdivision (a).
On June 4, 2015, the court indicated it made no sense that
the value would be limited to the plastic making up the card, and
that Caretto had the burden to show the value was under $950.
4
The court stated its belief that the value of each debit card should
be based on the amount of money in the “appropriate account.”
The court also indicated that if the parties uncovered facts
showing the cards were inactive, then the court would reduce the
charge to a misdemeanor and resentence accordingly. The court
stated that if the evidence showed there was an ability to use the
cards to withdraw over $950, then the motion would be denied.
The court again continued the hearing to allow the parties to
locate the victim.
On June 17, 2015, the parties appeared once more.
The People provided the court with an email from the detective
who had originally investigated the case and now had located the
victim. The victim told the detective that the amount he had
available for withdrawal on the two debit cards was between
$1,500 and $1,800 (from Bank of America and Chase Bank).
Caretto’s counsel argued that the value of the cards was “not
necessarily the value of the plastic itself, but actually any loss
that would determine the value as opposed to a potential and
hypothetical amount that could have been taken.” The court
responded, “[T]he court is finding that loss would only be relevant
as a determining factor as to restitution. But in terms of Prop 47,
the value of the card to me—I mean if someone has a card worth
$2,700 and it’s stolen and someone receives it, then the value for
receiving stolen property is the value of the card at the time . . . .”
The court once again continued the hearing to determine if the
parties could obtain any documentation from the victim
supporting the detective’s email. But the court said, “If [the
prosecutor] establishes the value is over $950, the amount that
could be drawn over, you’ll have to have the Court of Appeal tell
me I’m wrong.”
5
On June 22, 2015, the trial court denied Caretto’s
resentencing motion. He admitted violating probation and it was
revoked. The court then scheduled a sentencing hearing. Once
again, there was no discussion on Caretto’s request for
resentencing of the drug possession conviction.
Caretto filed a initial petition for writ of mandate
challenging the trial court’s valuation for his receiving stolen
property conviction, as well as the court’s failure to reduce his
felony conviction for possession of methamphetamine to a
misdemeanor. On the valuation issue, he argued that the proper
method of valuing the stolen cards was the “minimal intrinsic
value” of the cards themselves.
We issued an alternative writ of mandate as to the trial
court’s denial of Caretto’s motion for resentencing of his drug
possession conviction. In response, the trial court vacated its
ruling as to the drug possession conviction and granted the
petition. We then dismissed the petition as moot and Caretto
sought review as to the trial court’s denial of resentencing of his
section 496 conviction. Our Supreme Court granted review and
transferred the matter to us with directions to vacate our order
and issue an order directing respondent court to show cause why
the relief sought in the petition should not be granted.
We issued the order to show cause, the People filed a
return, and petitioner filed a reply. The People argued Caretto
bore the burden of proving eligibility under Proposition 47 and
the trial court properly found the fair market value of the stolen
debit cards exceeded $950 based on the balances in the accounts.
In our prior opinion, we denied Caretto’s writ. We
characterized the issue as “whether, based on the evidence before
it, the trial court properly valued the victim’s two debit cards
6
found in [Caretto’s] possession for the purpose of determining
whether [Caretto] demonstrated he was qualified for
resentencing.” (Caretto v. Superior Court of Los Angeles County,
supra, B265256, at p. 6.) We agreed with the People that the
stolen property should be valued based on the fair market value,
and the only evidence of fair market value in the record was the
victim’s statement that the combined accounts had over $950 in
them. We held that Caretto bore the burden to show entitlement
to resentencing, and he failed to carry that burden on the record
before us.
Caretto filed a petition for review in the California
Supreme Court, which the court granted. It transferred the
matter to us with directions to vacate our decision and reconsider
the issue in light of Romanowski.
DISCUSSION
I. Proposition 47 and Romanowski
Proposition 47 amended various provisions of the Penal and
Health and Safety Codes to reduce personal possession drug
offenses and thefts involving less than $950 from a straight
felony or a “wobbler,” to a straight misdemeanor.
Proposition 47 created a new resentencing provision,
section 1170.18, subdivision (a), which provides: “A person who,
on November 5, 2014, was 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 the act that added this
section (‘the act’) had this act 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 459.5a, 473,
7
476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.” (§ 1170.18, subd. (a).)
Section 496 was amended by Proposition 47, and provides
in relevant part: “Every person who buys or receives any
property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or aids
in concealing, selling, or withholding any property from the
owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment in a county jail for not more than one
year, or imprisonment pursuant to subdivision (h) of Section
1170. However, if the value of the property does not exceed nine
hundred fifty dollars ($950), the offense shall be a misdemeanor,
punishable only by imprisonment in a county jail not exceeding
one year . . . .” (§ 496, subd. (a).)
In Romanowski, the petitioner had pleaded no contest to
felony theft of access card information in violation of section 484e,
subdivision (d) and sought reduction of his sentence pursuant to
section 1170.18. (Romanowski, supra, 2 Cal.5th at p. 906.) The
trial court denied his petition, holding that Proposition 47 did not
apply to theft of access card information. A panel of this Division
reversed, holding that theft in violation of section 484e,
subdivision (d) was subject to Proposition 47 by way of section
490.2, which “ ‘reduces a violation of 484e, subdivision (d) to a
misdemeanor if it involves property valued at less than $950.’ ”
(Romanowski, supra, at p. 906.) We remanded for the trial court
to determine whether the property involved in the petitioner’s
conviction did not exceed $950, but did not set forth how value
should be determined. (Ibid.)
On review, the Supreme Court affirmed. It first held that
8
the theft of access card information as defined in section 484e,
subdivision (d) was subject to resentencing pursuant to
Proposition 47. The crime fell within section 490.2, which
“reduce[d] punishment for crimes of ‘obtaining any property by
theft’ that were previously punished as ‘grand theft’ when the
stolen property was worth less than $950.” (Romanowski, supra,
2 Cal.5th at p. 909.)3
Having held the petitioner’s felony sentence was eligible for
resentencing, the court addressed the question of how to value
the access card information. It first noted that section 484g
separately punishes the fraudulent use of stolen access card
information, whereas section 484e, subdivision (d) “punishes the
theft of an access card or access card information itself, not of
whatever property a defendant may have obtained using a stolen
access card or stolen information.” (Romanowski, supra, 2
Cal.5th at p. 914.) As a result, “the $950 threshold for theft of
access card information must reflect a reasonable approximation
of the stolen information’s value, rather than the value of what (if
anything) a defendant obtained using that information.” (Ibid.)
The court concluded that the proper measure is the “fair
3 Section 490.2 states in relevant part, “Notwithstanding
Section 487 or any other provision of law defining grand theft,
obtaining any property by theft where the value of the money,
labor, 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,” subject to certain
exceptions. Section 484e, subdivision (d) states, “Every person
who acquires or retains possession of access card account
information with respect to an access card validly issued to
another person, without the cardholder’s or issuer’s consent, with
the intent to use it fraudulently, is guilty of grand theft.”
9
and reasonable market value” test for theft crimes set forth in
section 484, subdivision (a). (§ 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.”]; see
Romanowski, supra, 2 Cal.5th at p. 914.) “Acceptance of this
approach was part of the backdrop against which Proposition 47
was enacted, and Proposition 47 does not refer to any other
approach to valuation. We thus see no basis for an alternative
approach to valuation either in the original statutory scheme or
in the provisions enacted by Proposition 47. Courts must use
section 484’s ‘reasonable and fair market value’ test when
applying section 490.2’s value threshold for theft crimes.”
(Romanowski, supra, at p. 914.)
The court refused to adopt either party’s “all-or-nothing
approach” to valuation, rejecting both the People’s view that the
difficulty in valuing access card information meant the crime
should not be reducible at all, as well as the petitioner’s view that
the value of an access card is de minimis based upon the plastic it
is printed on. (Romanowski, supra, 2 Cal.5th at p. 915.) Instead,
the court wrote: “We thus hold that the Penal Code’s reference to
the ‘reasonable and fair market value’ requires courts to identify
how much stolen access card information would sell for.” (Ibid.)
As part of this inquiry, the court did not preclude a
valuation based on illegal sales: “The fact that stolen access card
information is not sold legally does not relieve the courts of this
duty. This court has never suggested that the term ‘reasonable
and fair market value’ must refer to legal market value even in
cases where there is no legal market for the stolen property.
When a defendant steals property that is not sold legally,
evidence related to the possibility of illegal sales can help
10
establish ‘reasonable and fair market value.’ Only in cases where
stolen property would command no value on any market (legal or
illegal) can courts presume that the value of stolen access
information is de minimis.” (Romanowski, supra, 2 Cal.5th at
p. 915.)
Finally, the court addressed the burden of proof, holding
that the “ultimate burden of proving section 1170.18 eligibility
lies with the petitioner.” (Romanowski, supra, 2 Cal.5th at
p. 916.) The court explained: “In some cases, the uncontested
information in the petition and record of conviction may be
enough for the petitioner to establish this eligibility. When
eligibility is established in this fashion, ‘the petitioner’s felony
sentence shall be recalled and the petitioner sentenced to a
misdemeanor . . . unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.’ (§ 1170.18, subd. (b).) But in other
cases, eligibility for resentencing may turn on facts that are not
established by either the uncontested petition or the record of
conviction. In these cases, an evidentiary hearing may be
‘required if, after considering the verified petition, the return,
any denial, any affidavits or declarations under penalty of
perjury, and matters of which judicial notice may be taken, the
court finds there is a reasonable likelihood that the petitioner
may be entitled to relief and the petitioner’s entitlement to relief
depends on the resolution of an issue of fact.’ ” (Romanowski,
supra, at p. 916.)
II. Valuation of the Stolen Debit Cards
Caretto’s offense was receiving stolen property in violation
of section 496, not theft of access card information in violation of
11
section 484e, subdivision (c). But the valuation issue is the same
and the reasoning in Romanowski applies with equal force.
Caretto contended in the trial court that a debit card has only the
minimal, intrinsic value of its plastic. As noted above,
Romanowski rejected that approach in favor of applying the fair
market value test. (Romanowski, supra, 2 Cal.5th at p. 915
[finding this “approach has no basis in the statutory language
‘reasonable and fair market value’ ” in § 484, subd. (a)].) Caretto
now contends the “reasonable and fair market value” cannot be
based on the amount of money in the linked accounts because, in
his view, “that is not how much the stolen cards would sell for.”
Instead, he argues that because Romanowski did not preclude the
use of black market value, he is entitled to remand for an
opportunity to present evidence of “black market worth.”
While Romanowski approved the use of illegal sales or an
illegal market to determine the value of stolen access card
information, it did not purport to limit evidence to that category.
The basic question is simply fair market value, which has been
defined as the highest price obtainable in the marketplace. (See
Romanowski, supra, 2 Cal.5th at p. 915, citing People v. Tijerina
(1969) 1 Cal. 3d 41, 45 [“In the absence of proof . . . that the price
charged by a retail store from which merchandise is stolen does
not accurately reflect the value of the merchandise in the retail
market, that price is sufficient to establish the value of the
merchandise”], People v. Pena (1977) 68 Cal. App. 3d 100, 104
[“When you have a willing buyer and a willing seller, neither of
whom is forced to act, the price they agree upon is the highest
price obtainable for the article in the open market. Put another
way, ‘fair market value’ means the highest price obtainable in the
market place”], and CALCRIM No. 1801 [“Fair market value is
12
the price a reasonable buyer and seller would agree on if the
buyer wanted to buy the property and the seller wanted to sell it,
but neither was under an urgent need to buy or sell.”].)
Here, we have no doubt evidence of the balances in linked
accounts could be relevant to fixing the highest price in the
marketplace for stolen access cards. Indeed, the value of stolen
access cards may very well turn on the amount of money
accessible with the card—it stands to reason that the higher the
balance in the account, the more valuable the card giving access
to that balance. So a court (or perhaps an expert witness) would
likely need to know the amount of money available to an illicit
buyer in order to place the highest value on access cards in an
illegal market.
We take a moment here to clarify our language in People v.
Liu (2018) 21 Cal.App.5th 143 (Liu), review granted June 13,
2018, S248130, an opinion we recently issued dealing with
similar valuation issues under Proposition 47 and Romanowski.
In Liu, the petitioner sought resentencing on five counts
involving the theft of access card information in violation of
section 484e, subdivision (d). For each count, there was evidence
of either the amount of fraudulent charges on the stolen cards or
how much restitution was ordered, or both. For three counts,
both the fraudulent charges and the restitution exceeded $950;
and for two counts, the purchases and restitution fell below $950.
(Liu, supra, at p. 147.)
We concluded the petitioner was ineligible for resentencing
on three counts but eligible for resentencing on two counts, based
on the amounts fraudulently charged on the stolen cards. (Liu,
13
supra, 21 Cal.App.5th at pp. 149–150.) In reaching our decision,
we explained that Romanowski held that section 484e,
subdivision (d) was subject to Proposition 47 resentencing, the
petitioner bore the burden to show eligibility, and “courts may
use the ‘ “reasonable and fair market value” ’ test, and may look
to evidence of illegal sales to determine how much stolen access
card information is worth.” (Liu, supra, 21 Cal.App.5th at pp.
148–149.)
After noting that the defendant “contends the only method
of valuation of stolen access card information is the fair market
value on the black market, and that remand is necessary because
the record here contains no evidence of fair market value,” we
said that “Romanowski does not establish that the only method
for valuing access card information is the fair market value test.”
(Liu, supra, 21 Cal.App.5th at p. 149.) In our view, “[w]here, as
here, the access card information was actually used to procure
goods or services, common sense tells us that the unauthorized
charges are proof of at least the minimum value of the access
card information.” (Ibid.)
We continued: “Defendant relies heavily on the statement
in Romanowski that: ‘[A] defendant can be convicted of violating
section 484e, subdivision (d) even if he or she never uses the
stolen account information to obtain any money or other
property. So the $950 threshold for theft of access card
information must reflect a reasonable approximation of the stolen
information’s value, rather than the value of what (if anything) a
defendant obtained using that information.’ (Romanowski,
supra, 2 Cal.5th at p. 914.) She also relies on the court’s
reasoning that the reference to ‘reasonable and fair market value’
in section 484 (defining theft and providing guidance on the
14
determination of the value of stolen property) ‘requires courts to
identify how much stolen access card information would sell for.’
(Romanowski, at p. 915, see § 484, subd. (a).) Defendant argues
this means that, in the case of a defendant who did use the stolen
account information, the value of property the defendant
obtained is irrelevant. Defendant’s argument makes no sense.
Surely, stolen access card information would sell for at least the
value of the property obtained by a defendant who used the
information, and in many cases, it would sell for much more.”
(Liu, supra, 21 Cal.App.5th at p. 149.)
Under our decision today, the outcome in Liu was correct,
as was our reasoning. Fraudulent charges could be highly
probative of the value of the stolen cards themselves. Where we
spoke imprecisely was suggesting or implying that a valuation
based on fraudulent charges is an alternative to the fair market
value test set out in Romanowski or that the fair market value
test is optional. It is not. The fair market value test from
Romanowski is the controlling test for valuing stolen access card
information for Proposition 47 purposes. (Romanowski, supra, 2
Cal.5th at p. 914 [“Courts must use section 484’s ‘reasonable and
fair market value’ test when applying section 490.2’s value
threshold for theft crimes.” (Italics added.)]; id. at p. 915 [“We
thus hold that the Penal Code’s reference to the ‘reasonable and
fair market value’ requires courts to identify how much stolen
access card information would sell for.” (Italics added.)].)
Although Romanowski did say that “the $950 threshold for
theft of access card information must reflect a reasonable
approximation of the stolen information’s value, rather than the
15
value of what (if anything) a defendant obtained using that
information,” it did so because fraudulent use of access card
information is a separate crime from acquisition and possession
of access card information. (Romanowski, supra, 2 Cal.5th at
p. 914, italics added.) We do not interpret this statement to
preclude the use of evidence of fraudulent charges to fix the value
of the stolen card itself, so long as that evidence is introduced
with the goal of determining the card’s fair market value.
In short, consistent with Romanowski and Liu, a host of
evidence could be relevant to the fair market value of stolen
access cards, from actual fraudulent charges and the balances in
linked accounts to expert testimony on the illegal market for
stolen cards. We merely reiterate that the proper analysis under
Romanowski is the fair market value test, whatever evidentiary
components might go into that determination in any given case.
This evidence-based approach is consistent with the
approach of at least one other court in valuing property for
Proposition 47 purposes. (See People v. Lowery (2017) 8
Cal.App.5th 533 (Lowery), review granted April 19, 2017,
S240615.) Decided just before Romanowski, Lowery involved the
cashing of a forged check written for over $1,000, above the $950
value limit for misdemeanor forgery in section 473, subdivision
(b), which was set by Proposition 47. (Lowery, at p. 535.) Similar
to Romanowski, the court rejected the parties’ all-or-nothing
approach to value: it rejected the People’s view that the check
was valued in the amount written on it; and it rejected the
petitioner’s view that the check was valued at the intrinsic value
of the paper. (Lowery, at p. 539.) Instead, the court held that the
value of a forged check is its “actual monetary worth,” typically
“measured by its fair market value.” (Ibid.) The court explained
16
that a check’s face value could be evidence of its value, especially
if it was cashed. But other evidence might show a value less than
the face value, such as if the check was poorly forged and unlikely
to be cashed, or evidence from an expert witness of “a discounted
price paid on the street.” (Id. at p. 541.)
In Caretto’s case, the only evidence of value presented to
the trial court was the victim’s statement that he had a combined
total of $1,500 to $1,800 in the two bank accounts linked to the
stolen debit cards. The trial court was entitled to credit the
victim’s statement to infer that the stolen debit cards would have
been valued in the marketplace at or near the balances in the
linked accounts, that is, the highest price someone would have
been willing to pay for cards to access those funds. (See Evid.
Code, § 813, subd. (a)(2) [owner of personal property is qualified
to opine about its value]; People v. Henderson (1965) 238
Cal. App. 2d 566, 566–567 [owner of stolen watch could testify as
to the worth of stolen watch for purposes of determining whether
defendant was guilty of grand theft]; People v. Haney (1932) 126
Cal. App. 473, 475–476.) But because Romanowski was decided
after the trial court proceedings and provided critical guidance on
how to value the stolen debit cards at issue here, we think
Caretto should be given an opportunity to present evidence
consistent with Romanowski in order to rebut the People’s
showing. Thus, we will remand for further proceedings.
DISPOSITION
The petition is granted and the matter remanded for
further proceedings consistent with this opinion. Having served
its purpose, our order to show cause is discharged.
CERTIFIED FOR PUBLICATION
17
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.
18