Court of Appeals for the Fourth District of California, Second District.
The People, Plaintiffs and Plaintiffs v. Phillip Pernell BIAS, Defendants and Respondents.
Date of decision: 29.02.2016
District Attorney Michael A. Hestrin and Deputy District Attorney Emily R. Hanks for Plaintiff and Appellant. Stephen L. Harmon, Public Defender, or William A. Meronek, Deputy Public Defender, for Appellant and Respondent.
The People's Court of Appeal approves the request of defendant Philippe Pernell Bias under Article 1170.18 of the Criminal Code1Defendant's conviction for second-degree theft (§459) as a shoplifting offense (§459.5). The People argued that defendant failed to meet his burden of proving he was eligible for resentencing and that the court erred in granting defendant's motion because he was still guilty of second-degree burglary, not shoplifting. We agree with the people and return the verdict.
Facts and background of the proceedings
The criminal facts of the defendant were extracted from the minutes of the trial. On September 1, 2012, the defendants entered a Moreno Valley bank and attempted to cash a check for $587.64. The check was made out to the defendant and was drawn on the account of Innovative Design Concepts.2A deputy is talking to an employee of an innovative design company. The deputy described some features of the checks the defendants tried to cash to the employees. The deputy was told that the serial number on the company's check would be green and display the company's crest. The check presented by the defendant was blue in color and had no label. The employee further informed the agent that she did not know the suspect and that he was not an employee of the company. The suspect admitted that the check was not legitimate.
The defendants were charged with burglary in the second degree (§ 459-count 1) and check forgery (§ 475, subd. (c)-count 2). The Information also alleges prior imprisonment (§§667.5, subdivision (b)) and prior to the strike (§§667, subdivision (c), (e)(1), 1170.12, subdivision (c)(1)) . The defendant pleaded guilty to count 1 and pleaded guilty to the previous charges. The court sentenced him to three years and eight months in prison.
On November 20, 2014, defendant filed a motion for resentencing pursuant to §1170.18(a). Despite widespread opposition on the grounds that the defendant was ineligible for a new conviction, the court granted the motion, convicting the defendant of the section 459.5 offense and crediting time served.
In explaining ballot initiatives, "we apply the same principles that apply to the construction of statutes." (People v. Rizo (2000) 22 Cal. 4th 681, 685.) "We first "look to the language of the statute and give those words their ordinary meaning. (ibid.) We construct legal language "in the context of the entire statute and general legal solutions". (Ibid.) If the language is ambiguous, we look to "'Other signs of voter intent, especially the analysis and arguments in the official ballot.'" (Ibid.)
Proposition 47 and Statutory Amendments
Proposition 47 and Section 1170.18 Overview
On November 4, 2014, voters approved Proposition 47, which took effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 reduces certain drug and robbery offenses from felonies or felonies to misdemeanors for qualified defendants, and added Penal Code section 1170.18 among other legal provisions. Penal Code Section 1170.18 establishes a process by which eligible persons who have previously been convicted of a misdemeanor (a crime under the new Proposition 47 definition) may apply for reinstatement. Condemnation. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically, Penal Code section 1170.18(a) states: [Section 47 Proposition], a conviction, trial, or plea of guilty to one or more criminal offenses ․ If [Proposition 47] was in effect Section 11377 of the Health and Safety Code or Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as amended or added by [Proposition 47]."
The accused is not eligible for punishment
The defendant was convicted of violating section 459, which states: "Every person who enters a ... building with intent to commit theft, grand or petty, or any other felony, shall be guilty of burglary." (italics added. ) "The Court ruled, under the shoplifting statutes enacted by Proposition 47, specifically section 459.5(a), which states: "Notwithstanding section 459, shoplifting is defined as entering a commercial establishment with the intent to a theft is committed while the establishment is open during normal business hours, where the value of the property seized or intended to be seized does not exceed nine hundred fifty dollars ($950) in the burglary. (§â€459.5, subd.(a).) "By its terms, section 459.5 does not redefine second-degree theft; the new statute is limited to entering a place of business during normal business hours with the intent to steal less than $950." With intent to commit a second felony, second degree burglary still falls under section 459.
The burden is on a defendant seeking a conviction under Penal Code section 1170.18 to prove that his underlying offense falls within that body of law. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) The People argued that the defendants did not enter the bank to rob, but to steal an identity, also described as the unlawful use of another person's personal information (§530.5, subd. (a); ⟩People v. Barba (2012) 211 Cal. App. 4th 214, 220 (Barba⟩).)
Section 530.5(a) states: "Any person who knowingly obtains from another person personal information, as defined in Section 530.55(b), uses such information for any unlawful purpose, including obtaining or attempting to obtain unauthorized Providing credit, goods, services , real estate, or medical information with that person's consent constitutes a public offense ․“personally identifiable information includes” any name, address, telephone number, ․account number [and] unique electronic information, including an Informational Identification Number, address, or routing code ․" (§ 530.55, subd. (b).)
In the Barbo case, the court ruled that if the evidence in the preliminary proceedings shows that the defendant used the company's personal information, including "name, address, phone number, unique electronic checking account information, and address or routing code," in cashing the stolen check. (Barba, supra, 211 Cal.App.4th at p. 228.) Here, defendant's conduct, although unsuccessful, was similar in nature: He presented a check bearing the name and identifying information of Innovative Designs and attempted to cash it.
Defendant argued that the only crime he intended to commit when he entered the bank was check forgery (§475, subd. (c)), a crime for which he was charged but dismissed on a charge of second-degree burglary. The Barba court noted that while the crimes of identity theft and forgery "have some overlap," "the statute deals with remedies for two distinct wrongs." (Barba, supra, 211 Cal. App. 4th at p. 225.) Thus, forgery is committed when a person is in possession of a genuine check or a fake one. Section 475(c) defines forgery as follows: "Any person who possesses a check, money order, traveler's check, warrant, or county order, real or fictitious, wholly for the purpose of making, transmitting, or promoting, or by means of, deceiving any person, it is guilty of forgery."
The court appears to have confused identity theft and forgery charges when it ruled that the suspect was eligible for a new sentence. The court said identity theft "could have happened before they even got to the bank. They entered the person's information before. Either they stole the check or it was a legitimate check but they forged it to look different. I see those different things. I think he's going to the bank to get money, whether or not he's going, Hi, I'm John Doe, here's my check or something, he's going to the bank to get money. The identity theft component has been perfected. They stopped at the bank on parking lot and commit identity theft. You don't have to go to a bank to commit identity theft. I think it's a cliché of stealing money under false pretenses." The court reiterated that identity theft is "perpetrated in a parking lot or otherwise," going to the bank to cash a check.
Courts have misunderstood the elements of identity fraud. Section 530.5(a) states that a person impersonates an individual when he obtains personally identifiable information from another person and "uses that information for any unlawful purpose, including obtaining or attempting to obtain credit, goods, services, real estate, or medical care. Information that is a criminal offense committed without the person's consent ․” (Italics added.) Thus, the crime of identity theft was not committed "in the parking lot" before defendant entered the bank.
The defendant noted that forgery was the only felony he was charged with, other than second-degree burglary to which he pleaded, and that under Proposition 47, forgery of a check for less than $950 is a misdemeanor. However, for the crime of identity theft that the suspect intentionally entered, people do not need to prosecute him themselves, because the burglary already has the necessary criminal intent. (People v. Brownlee (1977) 74 Cal.App.3d 921, 930.) Defendants' sentencing records, including a preliminary hearing transcript, show that defendants entered the bank with the intent to steal their identities.
Defendants further argued that any conduct that meets the definition of shoplifting in section 459.5 should be charged with shoplifting. (§ 459.5, subd. (b) ["Any act of shoplifting (as defined in subsection (a)) shall be charged with shoplifting. Any person charged with shoplifting shall also be charged with shoplifting or theft of the same property"] .) We disagree. Entering a bank with intent to commit identity theft is not an act within subsection (a) of section 459.5, which is entering a bank with intent to commit petit larceny.
We concluded that the suspect did not prove that he was eligible for a new sentence. Because we hold that defendant has failed to establish in his charge that his charge of second-degree burglary should be reduced to a violation of section 459.5, we need not comment on the People's additional contention that the bank is not a commercial establishment within the meaning of section 459.5.
The contested decision was reversed.
1Unless otherwise stated, all further legal references refer to the Criminal Code.
2.The record contains several variations of the company name: "Innovative Design Concepts", "Innovative Designs", "Design Concepts" and "Innovation Designs".
We agree: RAMIREZ, P. J. HOLLENHORST, J.
FindLaw California Court of Appeals Cases and Opinions.? ›
The majority of Court of Appeal opinions are not certified for publication and are thus not published in the Official Reports. These opinions are known as "unpublished"; they generally cannot be cited or relied upon in other cases (see California Rules of Court, rule 8.1115).How do I look up a lawsuit in California? ›
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- "Abuse of discretion" Standard.
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The majority of Court of Appeal opinions are not certified for publication and are thus not published in the Official Reports. These opinions are known as "unpublished"; they generally cannot be cited or relied upon in other cases (see California Rules of Court, rule 8.1115).What is a way that an appeals court can decide on an opinion? ›
Sometimes, appeals courts make their decision only on the basis of the written briefs. Sometimes, they hear oral arguments before deciding a case. Often the court will ask that the case be set for oral argument, or one of the parties will request oral argument.Are all lawsuit filings public? ›
When a civil case is settled, that fact is usually apparent from the public record. However, the terms of settlement and any discovery records may remain confidential.Can I look up a case number in California? ›
If the case was filed in 2004 or later, use the criminal case index search. You can search for a case number using either the defendant's name and date of birth, or the defendant's name plus the month and year the case was filed.What two steps must be taken before an appellate court will hear an appeal? ›
- Step 1: Hiring an Appellate Attorney (Before Your Appeal) ...
- Step 2: Filing the Notice of Appeal. ...
- Step 3: Preparing the Record on Appeal. ...
- Step 4: Researching and Writing Your Appeal. ...
- Step 5: Oral Argument.
After losing an appeal, the appellate court will typically affirm the original decision made by the lower court. In other words, the lower court's decision will stand, and the ruling will become final. In some instances, the appellate court may also modify the original decision instead of affirming it.How long does an appeal decision take? ›
As a result, average appeal processing times have generally improved between 2018 and 2021 from 30.0 weeks for an oral hearing in 2018 to 25.5 weeks in 2021, and from 24.8 weeks for a summary decision in 2018 to 13.9 weeks in 2021.
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The chances of winning a criminal appeal in California are low (about 20 percent of appeals are successful). But the odds of success are greater if there were errors of law and procedure at trial significant enough to have affected the outcome of the case.How often are appeals successful in California? ›
In California, less than 20% of all civil appeals succeed in reversing the original ruling. That's because the law says the Court of Appeal must presume that the trial court's decision was correct – unless the appellant can prove the court was incorrect.What is the 90 day rule in California Court of Appeal? ›
The judges have 90 days from the date the case is submitted to decide the appeal. The clerk of the court will mail you a notice of that decision. The appellate court's decision will become final in 30 days unless any of the parties disagrees with the opinion and files a certain kind of petition.What are the 4 steps in the appeal process? ›
Step 1: File the Notice of Appeal. Step 2: Pay the filing fee. Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case. Step 4: Order the trial transcripts.What is abuse of discretion by a judge? ›
Abuse of discretion is a standard of review used by appellate courts to review decisions of lower courts. The appellate court will typically find that the decision was an abuse of discretion if the discretionary decision was made in plain error.What are some examples of a court making an error of law? ›
Examples of Errors of Law
The appellate court refused to listen to the state's case and awarded in favor of the plaintiff. Violation of due process: This occurs when the courts do not follow or allow a party to violate due process. It is a reversible error affecting the right to a fair trial.
In legal parlance, a party is a person or entity who takes part in a legal transaction, for example a person with an immediate interest in an agreement or deed, or a plaintiff or a defendant in a lawsuit. A “third party” is a person who is a stranger to a transaction, contract, or proceeding.What is the purpose of a summary judgment? ›
What Is a Summary Judgment? A summary judgment is a decision made based on statements and evidence without going to trial. It's a final decision by a judge and is designed to resolve a lawsuit before going to court.What is the goal of the preliminary hearing? ›
According to the Department of Justice, a preliminary hearing is meant to defend your rights against any unfounded criminal accusation, ensuring the prosecutors have enough elements to allow a criminal trial.How do I find out if I have a Judgement against me in California? ›
You can go to the court clerk's office and check the court's records to confirm that the judgment has been entered; and. There is no stay (suspension or postponement) on enforcement of the order because of an appeal, a stay from a bankruptcy, or other legal action.
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Almost all California cases are published in two competing sets of reporters: Westlaw publishes California cases in the unofficial California Reporter and Pacific Reporter.What do letters on case number mean California? ›
Letters at the end of the number are usually local notes such as, e.g. the judge's initials, and are commonly skipped (2:14-cv-123456-ABC-RZ vs. 2:14-cv-123456).What are the 4 possible decisions that can be issued after an appeal? ›
A court order may be upheld, overturned, modified, or remanded by appellate courts. When the higher court rules that, the lower court's decision is invalid and reverses it, this is known as a reversal.What are the 3 standards of review? ›
Federal appellate courts apply standards of review when examining lower court rulings or determinations from a federal agencies. There are three general standards of review: questions of law, questions of fact, and matters of procedure or discretion.When a trial court decision is affirmed in most appealed cases? ›
An appeal is affirmed when the appellate court has determined that the lower court's decision was correct and made without error. The final court order is affirmed when the evidence submitted supports the decision and the lower court's judgment provides an explanation for that decision.What three outcomes can happen when an appeal is made? ›
- Affirm the decision of the trial court, in which case the verdict at trial stands.
- Reverse the decision to the trial court, in which case a new trial may be ordered.
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An appeal of a conviction goes to a California Court of Appeal. An adverse decision by an appellate court can be appealed a second time. The second appeal goes to the Supreme Court of California.What happens after a court of appeals reaches a decision? ›
If the appeal is granted, the case will either be remanded or sent back to the lower court for a new trial, or the trial court will be overruled. The losing party can try to appeal the outcome to the California Supreme Court.What happens after appeal is approved? ›
In most situations, if you win your appeal, you case will be "remanded." This means the case will be sent back to the trial court or judge responsible for your conviction and/or sentencing.Why do appeals take so long? ›
Understanding Appeals Deadlines
If the appeals process takes a long time, it's because your case must go through several stages. And at each stage after you file, you have to wait behind other cases that have been filed before yours. The first step, which is the fastest, is starting the appeals process.
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|Notice or Motion to Appeal - Civil (Gov. Code 68926, 68926.1(b), 5.180) (for each notice of appeal & cross appeal) CRC 8.100(b) (Check made payable to Court of Appeal)||$775|
|Notice of Appeal - Criminal or Juvenile||No Fee|
|Notice of Appeal in Conservatorship Proceeding (Rule 8.480)||No Fee|
If you're wondering how often appeals are successful, the short answer is “typically, not often.” That doesn't mean you can't win yours with the proper, experienced representation. The appellate court reviews each case from the standpoint of trying to support the trial court's judgment.How much does a court of appeal judge get paid in California? ›
In 2022, the associate judges of the court received a salary of $257,562, according to the National Center for State Courts.Why is it hard to win an appeal? ›
Winning an appeal is very hard. You must prove that the trial court made a legal mistake that caused you harm. The trial court does not have to prove it was right, but you have to prove there was a mistake. So it is very hard to win an appeal.What happens if you lose an appeal in California? ›
If the court finds no legal wrongdoing or proof that anything impacted the final judgment, the appellant will lose the appeal. At this point, the case is over unless the appellant takes one more shot and petitions for rehearing or files a petition to transfer the case or bring it before the state supreme court.What is the outcome of most appeals? ›
Most appeals are final. The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case.What is Rule 60 in California Rules of court? ›
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. [As amended Dec.What is the 5 year rule in California court? ›
According to Section 583.310, “[a] n action shall be brought to trial within five years after the action is commenced against the defendant.” The Code sets forth three circumstances in which the running of the clock is paused: (1) when the court's jurisdiction is suspended; (2) when prosecution of the action is stayed ...What is Rule 3.400 of California Rules of court? ›
According to California Rules of Court, rule 3.400, a complex case is: “An action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties and counsel. ...Are California court records free? ›
PACER is the judiciary's electronic method of providing access to court dockets and to copies of documents filed with the court. You may register for PACER online. There is no registration fee.
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Visit the website of the California State Bar to validate the attorney's bar license status. You can also use the directory to search for an attorney by entering the name or bar number. The search feature allows you to search the database for names that sound similar.How many lawsuits are filed in California? ›
In FY 2016-17, over 5.8 million cases were filed statewide in the Superior Courts. The CSR organizes all the cases filed in the courts in four main case categories—Civil; Criminal; Family and Juvenile; Probate, Mental Health, Appeals, Habeas.What's the difference between Judgement and judgment? ›
The spelling varies based on whether you're writing UK or US English. In US English, “judgment” (no “e”) is the only correct spelling. In UK English, “judgement” (with an “e”) is standard, but “judgment” is used in legal contexts.How long does a Judgement stay on your record in California? ›
If your judgment has already expired, you should consult an attorney before taking any action. California judgments last for 10 years from the date they were entered.Does a Judgement ever go away in California? ›
Renew the judgment
Money judgments automatically expire (run out) after 10 years. To prevent this from happening, the creditor must file a request for renewal of the judgment with the court BEFORE the 10 years run out.
Criminal records, court records, and vital records are all present on California State Records. This includes over 350 million transparent public records. California public records started with the state's creation in 1850, and usually include data from 58 counties.Does California have open records? ›
Californians have the right under the state Public Records Act and the California Constitution to access public information maintained by local and state government agencies, including the Department of Justice.Who can request public records in California? ›
The California Public Records Act (CPRA) was passed by the California Legislature in 1968 for government agencies and requires that government records be disclosed to the public, upon request, unless there are privacy and/or public safety exemptions which would prevent doing so.How long do attorneys keep records in California? ›
Records are to be maintained for the period of their immediate use, unless longer retention is required for historical reference, contractual or legal requirements or for other purposes.Can my lawyer represent me in court without me being there California? ›
If the Defendant consents in writing and is properly advised of his/her rights, the Defendant does not need to be present at the arraignment, plea, trial, or sentencing.
What is an attorney of record California? ›
The lawyer or law firm that is listed in the court documents as the representative of a particular party is called the “Attorney of Record.” Once a party to a legal action is represented by an attorney, all of the legal documents generated by the legal action must be sent to the Attorney of Record, as opposed to the ...How much money can you sue for in California? ›
An individual or a business owned by an individual can file two cases each calendar year for as much as $10,000. For each additional case filed in the same calendar year, you can only sue for $2,500 or less.What percentage does a lawyer get in a settlement case in California? ›
Most California Personal Injury Lawyers set their contingency fees at approximately 33 percent (or a third of the total settlement awarded). However, this percentage can change depending on who you talk to and what your agreements are. Sometimes, the fee could be half the California personal injury settlement award.What is the maximum amount you can sue for in California? ›
In general, you can sue for a maximum of $10,000 in California small claims if you are an individual or sole proprietor. If you are suing on behalf of a corporation or LLC, you can sue for a maximum of $5,000. Remember, the ultimate decision maker of how much you are owed is the judge.