Filed 8/19/16 P. v. Leyva CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                      G051525

                   v.                                               (Superior Court Nos. 12NF0574,
                                                                                         14NF1396)
ANDRES ISAIAH LEYVA,
                                                                    OPINION
     Defendant and Appellant.


                   Appeal from orders of the Superior Court of Orange County, Thomas A.
Glazier, Judge. Affirmed.
                   Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              Andres Isaiah Leyva pleaded guilty to several felony counts of grand theft
under Penal Code section 484e, subdivisions (a) and (d) (all statutory references are to
Penal Code unless otherwise designated). Leyva contends the trial court erred by
denying his petition to have the convictions reduced to misdemeanors under Proposition
47 (§ 1170.18). For the reasons expressed below, we affirm.
                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              In August 2012, Leyva waived his rights and pleaded guilty (OC case No.
12NF0574) to three counts of unlawfully selling, transferring or conveying an access card
(§ 484e, subd. (a) [counts 3, 12, 22]) and two counts of vehicle taking (Veh. Code,
§ 10851, subd. (a) [counts 9, 19]). On the counts involving an access card, Leyva
provided the following factual basis: “On [October 6, 7 and 11], 2011[,] I did use an
access card without consent of the card owner with the intent to defraud.” He also
admitted suffering a prior conviction within the meaning of section 667.5, subdivision
(b). Leyva agreed to a split sentence of three years in custody and three years of
mandatory supervision.
              In October 2013, Leyva admitted violating the terms of his mandatory
supervision, and the trial court imposed 115 days in custody to run concurrently with a
term imposed in another case (OC case No. 11NF3104). Leyva’s probation officer filed a
second violation petition in January 2014 based on a December 2013 arrest for driving
while intoxicated and with a suspended license (Veh. Code, §§ 23152, subd. (a), 14601.1,
subd. (a)).
              In April 2014, Leyva waived his rights and pleaded guilty (OC case No.
14NF1396) to one count of unlawfully acquiring or retaining possession of access card
information (§ 484e, subd. (d)). He also admitted suffering two prior convictions within
the meaning of section 667.5, subdivision (b). Leyva provided the following factual
basis: “On [March 24, 2014], I willfully, unlawfully, [and] knowingly acquired [and]

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retained possession of access card account information, regarding an access card validly
issued to Truong L., without his consent or the issuer’s consent, with the intent to use the
access card information fraudulently.” The trial court imposed a three-year term
comprised of the two-year midterm for the access card conviction and a consecutive one-
year term for the prior conviction. The court struck punishment for the other prior
conviction. Leyva admitted he violated the terms of his mandatory supervision in case
No. 12NF0574. The court ordered him to serve 780 days, the term ostensibly remaining
in case No. 12NF0574, to be served concurrently with the term in the current case.
              In December 2014, Leyva filed an application in case No. 14NF1396 to
recall and reduce to a misdemeanor his section 484e, subdivision (d), conviction. In
January 2015, he filed an amended application in case No. 12NF0574 to recall and reduce
to misdemeanors his three section 484e, subdivision (a), convictions. He asked the court
to set aside the resulting misdemeanor convictions and dismiss the accusatory pleadings
(§ 1203.4a). The district attorney opposed the applications on the grounds the
convictions did not qualify for reduction under Proposition 47. In February 2015, the
trial court denied the applications.
                                             II
                                        DISCUSSION
              Leyva contends the trial court erred when it concluded Leyva’s convictions
for fraudulently selling or transferring an access card (§ 484e, subd. (a)) and for acquiring
or retaining possession of access card account information (§ 484e, subd. (d)) were
categorically ineligible for reduction to misdemeanors. We agree with the trial court that
section 484e, subdivision (a), does not qualify for misdemeanor reduction. We need not
discuss Leyva’s contention that section 484e, subdivision (d), priors were eligible for
misdemeanor treatment because Leyva failed to show his possession of access card
account information was worth $950 or less, a necessary requirement to obtain relief
under section 490.2.

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              Section 1170.18 (added by Proposition 47, the Safe Neighborhoods and
Schools Act) provides “(a) 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 the act that added this section . . . 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 [possession of designated controlled substances], 11357 [possession
of marijuana and concentrated cannabis], or 11377 [possession of designated controlled
substances] of the Health and Safety Code, or Section 459.5 [shoplifting as defined], 473
[forgery], 476a [making, drawing, uttering checks, drafts or orders], 490.2 [theft of $950
or less], 496 [receiving stolen property], or 666 [petty theft by sex offenders or persons
with prior violent or serious convictions] of the Penal Code, as those sections have been
amended or added by this act.”
              Section 490.2 provides, “(a) 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,
except that such person may instead be punished pursuant to subdivision (h) of Section
1170 if that person has one or more prior convictions for an offense specified in clause
(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an
offense requiring registration pursuant to subdivision (c) of Section 290.”
              Section 484e provides “(a) Every person who, with intent to defraud, sells,
transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is
guilty of grand theft. [¶] . . . [¶] (d) 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.” (See People v. Butler (1996) 43 Cal.App.4th 1224, 1233 [one

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who acquires information pertaining to another’s access card account information without
consent and with the intent to defraud is guilty of grand theft]; see also People v. Molina
(2004) 120 Cal.App.4th 507, 511 [possession of another’s cancelled credit card
constitutes possession of access card account information].)
              Leyva’s convictions in case No. 12NF0574 for violating section 484e,
subdivision (a), are not subject to reduction under section 1170.18. Section 484e,
subdivision (a), proscribes selling, transferring, or conveying access cards without
consent and with intent to defraud. (See People v. Cordell (2011) 195 Cal.App.4th 1564,
1577 [“Legislature differentiated between crimes that involve the fraudulent selling,
transferring or conveying of an access card, and those that involve the fraudulent ‘use’ of
an access card”].) Section 490.2 provides for reduction in grand theft cases where the
offense involves the “obtaining” of property by theft where the value does not exceed
$950. Section 484e, subdivision (a), does not require theft of the account information.
Mere possession of access card information without permission and with the intent to
defraud violates the statute. Because Leyva’s section 484e, subdivision (a), convictions
did not involve obtaining property by theft, section 490.2 does not authorize reduction to
misdemeanors.
              Leyva also asks us to declare that a conviction under section 484e,
subdivision (d), should be reclassified as a misdemeanor under section 490.2.1 But
Leyva, however, failed to establish the access account information he possessed was
worth $950 or less.



       1
             We note this issue is pending review in the Supreme Court. (People v.
Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9, 2016, S232212; People v.
King (2015) 242 Cal.App.4th 1312, review granted Mar. 9, 2016; People v. Romanowski
(2015) 242 Cal.App.4th 151, review granted Jan. 20, 2016, S231405; People v. Cuen
(2015) 241 Cal.App.4th 1227, review granted Jan. 20, 2016, S231107; People v. Grayson
(2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757.)

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              “As an ordinary proposition: ‘“A party has the burden of proof as to each
fact the existence or nonexistence of which is essential to the claim for relief or defense
he is asserting.’” [Citations.]” (People v. Sherow (2015) 239 Cal.App.4th 875, 879
(Sherow).) Thus, “a petitioner for resentencing under Proposition 47 must establish his
or her eligibility for such resentencing.” (Id. at p. 878.) The petitioner for resentencing
has the “initial burden of proof” to “establish the facts[ ] upon which his or her eligibility
is based.” (Id. at p. 880.) If the crime under consideration is a theft offense, “‘the
petitioner will have the additional burden of proving the value of the property did not
exceed $950.’ [Citation.]” (Id. at p. 879.) If the petition makes a sufficient showing, the
trial court “can take such action as appropriate to grant the petition or permit further
factual determination.” (Id. at p. 880.) “Perhaps the most fundamental rule of appellate
law is that the judgment challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006)
139 Cal.App.4th 1567, 1573.) “The very settled rule of appellate review is a trial court’s
order/judgment is presumed to be correct, error is never presumed, and the appealing
party must affirmatively demonstrate error on the face of the record.” (People v. Davis
(1996) 50 Cal.App.4th 168, 172.)
              Nothing in the record shows the access card account information acquired
or retained by Leyva was worth $950 or less. The facts drawn from the preliminary
hearing transcript show that on March 24, 2014, an Anaheim police officer stopped a car
Leyva drove because he did not display a rear license plate. Leyva did not stop the car
immediately and made furtive movements. Leyva misidentified himself as Gasparian
Hovanes. The officer searched the car and found checks, over 200 credit cards, copies of
driver’s licenses, social security cards, identification cards, and similar items, none in
Leyva’s name, and many in the name of Gasparian Hovanes. Smudge marks, crude
printing, and inconsistent numbering on the cards suggested the cards were not genuine.
Leyva subsequently admitted his true identity, and acknowledged he made and used

                                              6
fraudulent credit cards to support himself. The police also found an Oklahoma
identification card and an American Express card belonging to Truong Lee. Lee stated
he lost his wallet and its contents in the Los Angeles area in late 2013, and had not given
anyone permission to use the contents of his wallet. As noted above, Leyva pleaded
guilty, admitting that on March 24, 2014, he “willfully, unlawfully, [and] knowingly
acquired [and] retained possession of access card account information, regarding an
access card validly issued to Truong L., without his consent or the issuer’s consent, with
the intent to use the access card information fraudulently.”
              Because Leyva’s petition and the record does not show Lee’s access card
account information was valued at $950 or less, Leyva has failed to demonstrate the trial
court erred. Consequently, we affirm the court’s orders, but without prejudice so Leyva
may file a new petition if the Supreme Court determines Proposition 47 reclassified
section 484e offenses as misdemeanors, or if Leyva can show Lee’s access card account
information was valued at $950 or less.
                                            III
                                       DISPOSITION
              The orders are affirmed without prejudice.



                                                  ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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