People v. Martinez CA2/8

Filed 8/4/16 P. v. Martinez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B264206

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA067027) v.

SASHA MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Michael K. Kellogg, Judge. Reversed and remanded. Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Sasha Martinez appeals from the order denying her application under Proposition 47 (The Safe Neighborhoods and Schools Act; Pen. Code, § 1170.18)1 to have her 2011 felony conviction for acquiring and retaining access card account information under section 484e, subdivision (d) reclassified as a misdemeanor. On July 12, 2011, defendant entered a no contest plea to a section 484e, subdivision (d) violation, and admitted a prior prison term for a 2007 burglary conviction. She was sentenced to a total of four years, consisting of three years for the section 484e, subdivision (d) violation, and an additional year for her prior prison term. On March 9, 2015, after serving her sentence, defendant filed an application to have her “credit card theft” conviction reduced to a misdemeanor. The trial court heard and denied the petition on May 12, 2015, finding that Proposition 47 does not apply to a conviction under section 484e, subdivision (d). This appeal timely followed. On appeal, defendant contends she is eligible to seek reduction of her conviction to a misdemeanor because Proposition 47 reduced all nonviolent theft offenses under $950 to misdemeanors. Respondent contends the trial court correctly found Proposition 47 does not apply to a section 484e, subdivision (d) conviction. There has been a split of authority among the Courts of Appeal on this issue, and the Supreme Court has granted review. (See, e.g., People v. Cuen (2015) 241 Cal.App.4th 1227, 1231-1232, rev. granted Jan. 30, 2016, S231107 [holding that Proposition 47 does not apply to convictions under § 484e, subd. (d)]; People v. Grayson (2015) 241 Cal.App.4th 454, 460, rev. granted Jan. 20, 2016, S231757 [same]; compare with People v. Romanowski (2015) 242 Cal.App.4th 151, 159, rev. granted Jan. 20, 2016, S231405 [this division found that violations of § 484e, subd. (d) involving property that does not exceed $950 in value may be reduced to a misdemeanor under Proposition 47]; People v. Thompson (2015) 243 Cal.App.4th 413, 419, rev. granted Mar. 9, 2016, S232212 [same].)