Filed 6/6/16 P. v. Wynn CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051363

         v.                                                            (Super. Ct. No. 14WF2539)

JESSE MICHAEL WYNN,                                                    OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Jonathan S.
Fish, Judge. Affirmed.
                   Richard Schwartzberg, 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, Eric A. Swenson and
Jennifer B. Troung, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                Defendant Jesse Michael Wynn appeals the trial court’s denial of his
                                                  1
petition pursuant to Penal Code section 1170.18. He argues that conspiracy to commit
petty theft qualifies him for resentencing under the statute. This court, however, has
already decided that conspiracy offenses do not qualify for resentencing under section
1170.18. (People v. Segura (2015) 239 Cal.App.4th 1282 (Segura).) We therefore
affirm the order.


                                              I
                                           FACTS
                Pursuant to a plea bargain, in July 2014 defendant pleaded guilty to one
count of receiving stolen property (§ 496, subd. (a)), one count of conspiracy to commit
petty theft (§§ 182, subd. (a)(1), 488), one count of resisting and obstructing an officer (§
148, subd. (a)(1)) and two counts of contributing to the delinquency of a minor (§ 272,
subd. (a)(1)). The court suspended imposition of sentence, and ordered defendant to
serve 120 days in county jail. Defendant was also placed on three years of formal
probation.
                In November 2014, the voters approved Proposition 47, which reclassified
certain offenses from felonies to misdemeanors and created a postconviction resentencing
procedure for those convicted of felony offenses that have been reclassified. (§ 1170.18;
People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1093.) Defendant thereafter filed a
petition to reduce his conviction for receiving stolen property and conspiracy to commit
petty theft to misdemeanors. The court granted the petition as to the conviction for
receiving stolen property, but denied it on the conspiracy count. Defendant now appeals.




1
    Subsequent statutory references are to the Penal Code unless otherwise indicated.


                                              2
                                              II
                                       DISCUSSION
              The only issue on appeal is whether a conspiracy to commit a crime
enumerated in section 1170.18 is eligible to be reduced to a misdemeanor.
              Section 1170.18, subdivisions (a) and (b) state the offenses for which
resentencing is authorized. Individuals convicted of such crimes “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
                                                                    2
Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).)
              Defendant was not convicted of any of the enumerated offenses; rather, he
was convicted of conspiracy to commit petty theft, a crime not included in section
1170.18. Defendant admits this, but argues that the intent of the electorate in adopting
Proposition 47 should be interpreted to include a conspiracy to commit any eligible
offense.
                      3
              Segura addressed this very issue. The defendant in that case had pleaded
guilty to conspiracy to commit theft, and after the passage of Proposition 47, applied to
have that count reduced to a misdemeanor. (Segura, supra, 239 Cal.App.4th at pp. 1283-
1284.) “Defendant argues we should consider the ‘spirit evidenced by the voters in
enacting Proposion 47.’ He describes this ‘spirit’ as an intent ‘to insure that all thefts of

2
  Health and Safety Code sections 11350, 11357, and 11377 all deal with possession of
controlled substances. The Penal Code sections address the following crimes: Sections
459.5 (shoplifting with a value of $950 or less), 473 (forgery of a document with a value
of $950 or less), 476a (issuing a check for $950 or less with insufficient funds), 490.2
(petty theft with a value of $950 or less), and 666 (petty theft with a prior theft).
3
 After defendant’s opening brief was filed, this court decided Segura, supra, 239
Cal.App.4th 1282. Respondent addressed Segura in its brief, and defendant had the
opportunity to respond in his reply brief.

                                              3
property, where the value of the property is less than $950 and the petitioner has no
disqualifying prior convictions, will be classified as misdemeanor offenses.’ He
contends, without any support in the record, that ‘in this case the conspiracy appears to
have been charged as an act of the defendants that was inextricably bound with the
commission of the petty theft inside the convenience store.’ Since we were provided
with a very limited factual record, we do not know if this assertion is correct. But, even
if true, we are not authorized to amend the statute in the manner suggested by defendant.
We recongnize ‘“‘“[i]t is a settled principle of statutory interpretation that language of a
statute should not be given a literal meaning if doing so would result in absurd
consequences which the Legislature did not intend.” [Citations.]’”’ [Citation.] But we
cannot conclude a literal interpretation of the statute’s omission of the crime of
conspiracy leads to such an ‘absurd result.’ Crimes committed pursuant to a conspiracy
present a greater evil than crimes committed by an individual. As the court long ago
realized, ‘a group of evil minds planning and giving support to the commission of crime
is more likely to be a menace to society than where one individual alone sets out to
violate the law.’ [Citation.]” (Id. at p. 1284.)
              Segura controls here, and despite defendant’s invitation to do so, we
decline to reconsider its holding.




                                              4
                                          III
                                   DISPOSITION
            The order denying the petition is affirmed.



                                                MOORE, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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