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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




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                                     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,



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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.




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