Filed 6/24/16 P. v. Anderson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069220

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV1301843)

CAMERON MILLS ANDERSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Bernardino County, Jon

D. Ferguson, Judge. Affirmed in part and reversed in part with directions.



         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, Charles C. Ragland, Scott C.

Taylor and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         In this criminal case, one of the three victims of defendant Cameron Mills
Anderson's crime spree, and his friend, were at a coffee shop and the victim was briefly

watching his friend's laptop computer. Anderson picked up the friend's computer and ran

away. The victim tried to stop the theft, and Anderson hit him in the face with the back

of his hand and kicked him in the stomach. As the rightful possessor of the computer,

there is no question the victim was robbed. However, the victim's role as temporary

custodian of his friend's computer prevented Anderson from being convicted of both

robbery of the victim and grand theft of the computer. Accordingly, we reverse the

judgment of conviction with respect to one count of grand theft and direct that the grand

theft count be dismissed. Because the People agree that we should do so, we also strike

one of two prior prison term enhancements imposed by the trial court. As we explain, in

all other respects we affirm Anderson's judgment of conviction.

                  FACTUAL AND PROCEDURAL BACKGROUND

      A. Counts 1 and 2

      On April 3, 2013, Austin Koniglio and Adam Quezada were studying together at a

Starbucks coffee shop in Rancho Cucamonga. Koniglio got up from his table to go get

some food and asked Quezada to watch his $1,200 laptop computer. After Koniglio left

the coffee shop, Anderson walked into the coffee shop, looked around, grabbed

Koniglio's laptop and ran out. Quezada gave chase. At one point, Quezada grabbed the

back of Anderson's sweatshirt and Anderson hit Quezada in the face with the back of his

hand; Anderson then ran to a car, and Quezada grabbed him again, but Anderson kicked

him in the stomach twice, knocking the wind out of Quezada. Anderson then drove off.


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Later, Quezada was able to identify Anderson from a six-pack photo lineup.

       B. Count 3

       On April 6, 2013, Anderson and another man walked outside a Starbuck's coffee

shop and took Heather Holmes's cell phone and wallet from a table where she was sitting

with a friend. Anderson and his companion ran to a car in a nearby apartment complex

and drove off, running a red light.

       C. Count 4

       On April 7, 2013, Anderson and another man entered a third Starbucks location.

Anderson took Michelle Tostado's laptop computer from her while she was using it.

Anderson's companion took another woman's cell phone. Tostado and another patron of

the Starbuck's chased Anderson to a car; during the course of the chase, Anderson

backhanded Tostado. However, Tostado was able to remember the license plate number

of the car Anderson and his companion were driving and provide that information to

police. Later, Anderson was arrested while driving the car.

       D. Trial Court Proceedings

       Anderson was charged with the robbery of Quezada and the grand theft of

Koniglio's laptop computer (counts 1 & 2); the petty theft of Holmes's cell phone and

wallet (count 3) and the robbery of Tostado (count 4). With respect to the petty theft, it

was alleged Anderson had three prior convictions within the meaning of Penal Code

section 666, subdivision (a). The information further alleged Anderson had two prior

prison term convictions within the meaning of Penal Code section 667.5.


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       On April 17, 2014, Anderson was convicted by a jury on all counts. On August

15, 2014, the trial court sentenced him to a term of five years in prison on count 1, the

robbery of Quezada; a concurrent two years on count 2, the grand theft of Koniglio's

laptop computer; a consecutive eight months on count 3, the theft from Holmes; and a

consecutive one-year term for the robbery of Tostado. The trial court also found the prior

prison term allegations true and imposed one-year consecutive sentences for each alleged

prior. Thus, Anderson was sentenced to a total term of eight years eight months.

       Anderson filed a timely notice of appeal.

                                      DISCUSSION

                                              I

       Anderson contends that where, as here, one person or his agent is the victim in a

single incident of both grand theft and robbery committed by the same person, grand theft

is a lesser included offense of robbery and the perpetrator may only be found guilty of the

greater offense, robbery. (See People v. Villa (2007) 157 Cal.App.4th 1429, 1435 (Villa);

People v. Estes (1983) 147 Cal.App.3d 23, 29 (Estes).) Thus, he argues his conviction

for the theft of Koniglio's computer (count 2) must be reversed and that count must be

dismissed. We agree.

       Theft is a lesser included offense within robbery (People v. Ledesma (2006) 39

Cal.4th 641, 715); a defendant cannot be convicted of both the greater offense of robbery

and the lesser included offense of theft when they occur during the same course of

conduct. (People v. Ortega (1998) 19 Cal.4th 686, 692.) In both Villa and Estes, the


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defendants took items from retail stores, and the employees of the stores gave chase and

were met with the threat of violence. In both cases, the courts found that because the

defendants had been found guilty of robbery they could not also be found guilty of theft.

In both cases, the courts recognized that although the stolen property did not belong to

the respective employees, that as agents of their employers, the employees were in

constructive possession of the property and were victims of both the theft and the

robbery. (Villa, supra, 157 Cal.App.4th at p. 1435, Estes, supra, 147 Cal.App.3d at

p. 29.)

          Here, like the employees in Villa and Estes, Quezada was in constructive

possession of Koniglio's computer and was the victim of both the theft and the robbery.

Accordingly, Anderson could not be convicted of both crimes, and we will reverse his

conviction with respect to count 2 and direct that count 2 be dismissed.

                                               II

          Following entry of the judgment of conviction, on November 4, 2014, the voters

approved Proposition 47 (The Safe Neighborhoods and School Act; hereafter the Act).

Anderson makes two claims related to the Act. We reject both claims.

          A. Theft Conviction

          With respect to his theft conviction on count 3, Anderson argues that because his

conviction is not yet final, on appeal he is entitled to have his conviction reduced to a

misdemeanor. He argues that, under the Act, the theft he committed is now a

misdemeanor and that, under the holding in In re Estrada (1965) 63 Cal.2d 740, 744-745


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(Estrada), he is entitled to the benefit of that reduction. Estrada held that, in general, a

defendant is entitled to any reduction in the penalty for a crime enacted before his

conviction is final. The People assert, however, that, under the Act, Anderson's exclusive

remedy is to petition for recall of his sentence when his conviction becomes final.

       The Act "makes certain drug- and theft-related offenses misdemeanors, unless the

offenses were committed by certain ineligible defendants. These offenses had previously

been designated as either felonies or wobblers (crimes that can be punished as either

felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) The

Act also added section 1170.18 to the Penal Code, which provides in pertinent part: "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 ('this 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."1

       In People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan), the court considered the

issue before us and concluded a defendant subject to the Act "is limited to the statutory

remedy of petitioning for recall of sentence in the trial court once his judgment is final,

pursuant to Penal Code section 1170.18." (Id. at p. 672, citing People v. Yearwood

(2013) 213 Cal.App.4th 161, 170, 177 [concluding that an analogous provision of


1      With respect to sentences that have been completed, a defendant may petition the
court that imposed the sentence to redesignate the conviction as a misdemeanor. (Pen.
Code, § 1170.18, subd. (f).)
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Proposition 36, the Three Strikes Reform Act of 2012, which created a postconviction

resentencing procedure similar to Penal Code section 1170.18 was the "functional

equivalent" of a saving clause].) We agree with the conclusion in Noyan. The express

provision of a remedy by way of Penal Code section 1170.18 acts as a conditional saving

clause and takes the Act outside the general rule set forth in Estrada. Accordingly,

Anderson is limited to the statutory remedy of petitioning for recall of sentence under

Penal Code section 1170.18. (Noyan, at p. 672.)

       B. Enhancement

       As we have indicated, the trial court imposed prior prison enhancements under

Penal Code section 667.5 for two prior second degree burglary convictions, which, under

the Act, are now misdemeanors. Anderson contends that, as misdemeanors under the

Act, they should not have been used as prior prison enhancements under Penal Code

section 667.5. He relies not only on Estrada but also on People v. Flores (1979) 92

Cal.App.3d 461, 471-472 (Flores). Again, we find no error in the trial court's sentencing

determination.

       The court in People v. Diaz (2015) 238 Cal.App.4th 1323, 1336-1338 (Diaz)

considered the precise argument advanced by Anderson and found that, in light of the

Act's stated purposes, no retroactive application of its provisions is appropriate, and

further that neither Estrada nor Flores govern application of the Act. In finding that a

prior felony conviction could be used as a prior prison enhancement, notwithstanding the

fact that it is now a misdemeanor under the Act, the court stated: "Here, the plain


                                              7
language of [Penal Code] section 1170.18 . . . demonstrates that both for persons who are

currently serving a sentence for a felony reduced by Proposition 47, and for those who

have completed such a sentence, the remedy lies in the first instance by filing a petition to

recall (if currently serving the sentence) or an application to redesignate (if the sentence

is completed) in the superior court of conviction." (Diaz, at pp. 1331-1332.)

       With respect to Estrada, the court stated: "Here, defendant is not appealing from

the judgment arising from [his earlier] conviction. That judgment was final long before

the operative date of Proposition 47. Thus, the presumption of Estrada does not apply to

compel a reduction of his [earlier] conviction to a misdemeanor. Defendant argues that

his [earlier] conviction is not final 'in the context of this case,' because it was used to

support a [Penal Code] section 667.5, subdivision (b) enhancement that is part of the

judgment he is appealing. But that reasoning stretches the Estrada rule to the breaking

point. The California Supreme Court has 'emphasized [the] narrowness' of Estrada, and

explained that ' "Estrada is today properly understood, not as weakening or modifying

the default rule of prospective operation . . . but rather as informing the rule's application

in a specific context by articulating the reasonable presumption that a legislative act

mitigating the punishment for a particular criminal offense is intended to apply to all

nonfinal judgments. [Citation.]" [Citation.]' [Citation.] As clarified by our Supreme

Court, Estrada simply does not apply in the procedural posture of defendant's case."

(Diaz, supra, 238 Cal.App.4th at p. 1336, italics omitted.)

       In finding that Flores, which considered application of statutes that decriminalized


                                               8
marijuana possession, did not have any bearing on application of the Act, the court

distinguished between the express intent of the earlier marijuana statutes to prevent use of

marijuana convictions in future proceedings and the clear intent of the voters in adopting

the Act that defendants employ petitions under Penal Code section 1170.18. (Diaz,

supra, 238 Cal.App.4th at p. 1335.)

       We agree with the reasoning of the court in Diaz. The Act did not provide

automatic retroactive relief from a prior conviction. Like the court in Diaz, we express

no opinion whether the reasoning in Flores might apply where a prior felony conviction

has been reduced to a misdemeanor under Penal Code section 1170.18, subdivision (k).

(See Diaz, supra, 238 Cal.App.4th at p. 1335.)

                                            III

       The parties agree that, although he had two prior theft convictions, Anderson

served a concurrent term for the two convictions and that, therefore, he had only suffered

one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

(See People v. Jones (1998) 63 Cal.App.4th 744, 747.) Because the trial court imposed

an enhancement for each one of two the prior convictions, the parties agree that one of

the enhancements must be stricken.

                                      DISPOSITION

       Anderson's conviction on count 2 is reversed with instructions that it be dismissed,

and one of the two enhancements imposed under Penal Code section 667.5 is ordered

stricken. The trial court is directed to amend the abstract of judgment accordingly and


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notify the Department of Corrections and Rehabilitation of the amendment. In all other

respects, the judgment of conviction is affirmed.



                                                                    BENKE, Acting P. J.

WE CONCUR:


O'ROURKE, J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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