People v. Sirman CA2/6

Filed 12/7/15 P. v. Sirman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262302 (Super. Ct. No. MA030244-01) Plaintiff and Respondent, (Los Angeles County)

v.

JACK E. SIRMAN,

Defendant and Appellant.

Jack E. Sirman appeals an order denying his petition to reduce and reclassify his two prior convictions for acquiring or retaining possession of access card account information (Pen. Code, § 484e, subd. (d)) (counts 17 and 18) from felonies to misdemeanors under the Safe Neighborhoods and Schools Act (§ 1170.18) (hereafter "Proposition 47").1 We conclude, among other things, that the trial court correctly ruled these convictions did not qualify as the type of convictions eligible for reclassification under section 490.2. We affirm. FACTS In the early evening of November 3, 2004, Los Angeles Sheriff's Deputy Jeff Williams investigated an automobile parked in the desert near Lancaster. As Williams approached the passenger side of the car, he saw a glass pipe containing residue

1 All statutory references are to the Penal Code unless stated otherwise.

lying on the floorboard near Sirman's feet. Sirman told Williams, "That's my pipe, but I'm not high." Tami Wear, the driver of the vehicle, told Williams that Sirman printed checks at his residence and used them to obtain merchandise. (People v. Sirman (July 24, 2006, B184084) [nonpub. opn.].) After arresting Sirman, sheriff's deputies searched the car and Sirman's room. They found, among other things, "baggies of methamphetamine, counter checks, and identification and credit cards in the names of others." (People v. Sirman, supra. B184084.) At trial, witnesses identified the credit cards found in the car and Sirman's room. They testified they did not know Sirman. (Ibid.) In 2005, the jury found Sirman guilty of 19 felony counts. They included five counts of forgery (§ 475) (counts 1-5), receiving stolen property (§ 496, subd. (a)) (count 6), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 7), identity theft (§ 530.5, subd. (a)) (counts 8-9 and 13-16), grand theft (§ 487, subd. (a)) (counts 10-12), theft of access card account information (§ 484e, subd. (d)) (counts 17-18), and theft (§ 484e, subd. (b)) (count 19). Sirman admitted suffering a prior felony strike conviction and serving two prior prison terms. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b); People v. Sirman, supra, B184084.) The trial court sentenced him to an aggregate state prison term of 21 years 4 months. In 2014, Sirman filed a petition for resentencing under Proposition 47. After a hearing, the trial court reduced his felony convictions on counts 1, 6, 7, 11 and 19 to misdemeanors under Proposition 47. (§ 1170.18.) The court resentenced Sirman to an aggregate sentence of 18 years 8 months. The trial court denied his petition to reduce counts 17 and 18 (theft of access card account information) to misdemeanors. It said those crimes (§ 484e, subd. (d)) involve "a grand theft charge," but they fall "outside the scope of Proposition 47." DISCUSSION Sirman contends the trial court erred by ruling that his prior felony convictions for acquiring or retaining possession of access card account information