People v. Cuen

Filed 10/8/15 Certified for Publication 10/30/15 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051368

v. (Super. Ct. No. 14HF1375)

JUSTIN ANDREW CUEN, OPINION

Defendant and Appellant.

Appeal from a postjudment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Rex Adam Williams, 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, Deputy Attorneys General, for Plaintiff and Respondent.

Justin Andrew Cuen appeals from an order denying his petition to recall and resentence as misdemeanors (Pen. Code, § 1170.18, subds. (a), (b); all further statutory references are to the Penal Code) his two felony convictions for theft of access card information (§ 484e, subd. (d) (§ 484e(d)). The trial court ruled a conviction under section 484e(d) is not subject to recall and resentencing, because it is not one of the offenses listed in section 1170.18, subdivision (a). We agree and affirm. FACTS In July 2014, Cuen was charged with six felonies: two counts of possession of a controlled substance (counts 1, 2), one count receiving stolen property (count 3), possession of blank checks (count 4), two counts of theft of access card information (§ 484e(d); counts 5, 7), and forgery (count 6). It was also alleged he had served a prior prison term. A few months later, Cuen pled guilty to counts 1, 3, 5, and 7 and admitted the prior prison term in exchange for dismissal of the remaining counts and a three-year split sentence. Section 1170.18 was adopted as part of the “Safe Neighborhoods and Schools Act” (Proposition 47). After Proposition 47 passed, Cuen filed a petition for recall and resentencing under section 1170.18, subdivision (a). All but one of Cuen‟s offenses is among those listed as qualified for relief under 1170.18, subdivision (a). The outcast offense being theft of access card information (§ 484e(d)), counts 5 and 7. Analogizing theft of access card information to uttering fictitious instruments and forged checks, and relying on the $950 line dividing grand and petty theft (§ 490.2), Cuen argued the People had to prove a theft of more than $950. Cuen then pointed out the factual basis for his plea merely stated he “unlawfully possessed . . . access card account information belonging to two different people with intent to use that for unlawful purposes,” with no facts showing the value of the loss exceeded $950. Thus, Cuen claimed the court had to apply section 490.2, and reduce his felony theft of access card information convictions to misdemeanor petty thefts.