People v. Valenzuela

Filed 11/14/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

THE PEOPLE, 2d Crim. No. B269027 (Super. Ct. No. 2013025724) Plaintiff and Respondent, (Ventura County)

v.

LUIS DONICIO VALENZUELA,

Defendant and Appellant.

The crime of “street terrorism” requires, inter alia, that a person actively participate in criminal street gang activity and willfully promote, further or assist in any felonious criminal conduct of the gang. (Pen. Code, § 186.22, subd. (a).) 1 The enhancement for the commission of a felony for the benefit of a criminal street gang requires that the underlying crime be a felony. (Id., subd. (b)(1).) Here we resolve an unanticipated consequence of the passage of Proposition 47, i.e., whether a conviction for street terrorism survives after a felony conviction that is based upon the same conduct has been reduced to a misdemeanor. We hold that it does survive because, unlike with a gang enhancement, a street terrorism conviction does not require a felony conviction; it requires only that the conduct that

1 All further statutory references are to the Penal Code.

resulted in the conviction was felonious at the time it was committed. We therefore affirm the trial court‟s order denying resentencing on Luis Donicio Valenzuela‟s street terrorism conviction. FACTS AND PROCEDURAL HISTORY2 In 2013, Valenzuela stole a $200 bicycle from “the person” of the victim and was convicted of grand theft. (Pen. Code, § 487, subd. (c).) In addition, an enhancement of having committed that crime for the benefit of a gang was found to be true. (§ 186.22, subd. (b)(1).) Valenzuela was also convicted of street terrorism (id., subd. (a)), and sentenced to an aggregate term of nine years eight months in prison. At the time Valenzuela stole the bicycle, taking property from the person of another was classified as grand theft, irrespective of the property‟s value. Following the passage of section 1170.18 (Proposition 47) by voter initiative in November 2014, theft of money or property worth $950 or less, even if taken directly from another person, is “considered petty theft and . . . punished as a misdemeanor.” (§ 490.2, subd. (a).) After Proposition 47 took effect, Valenzuela successfully petitioned the trial court to reclassify his theft conviction as a misdemeanor. The effect of doing so precluded attachment of the gang enhancement to that count. The trial court, however, denied his motion to dismiss the street terrorism