People v. Zetino CA2/5 ( 2015 )

Filed 12/17/15 P. v. Zetino CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B263481
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. PA019262, PA007346 )
v.
JOSE GERMAN ZETINO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Cynthia L.
Ulfig, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant, Jose German Zetino, appeals from an order denying his Penal Code1
section 1170.18, subdivision (a) (section 1170.18) resentencing motion. We appointed
counsel to represent defendant on appeal. After examination of the record, appointed
appellate counsel filed an “Opening Brief” in which no issues were raised. Instead,
appointed appellate counsel requested we independently review the entire record on
appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins
(2000) 528 U.S. 259, 276-284.) On August 14, 2015, we advised defendant that he had
30 days within which to personally submit any contentions or arguments he wishes us to
consider. No response has been received. We find no reasonably arguable contentions
are raised by the order under review.
On October 25, 1991, defendant pled guilty to two counts of second degree
robbery in violation of section 211. On July 14, 1995, defendant was convicted
following a jury trial of one count of deadly weapon assault in violation of section 245,
subdivision (a)(1). After the aggravated assault jury verdict was recorded, defendant
admitted that his prior October 25, 1991 convictions were serious felonies pursuant to
Penal Code section 667, subdivision (a). Defendant received a sentence of 25 years to
life, plus a 5 year enhancement.
In his resentencing motion, defendant asserts his prior robbery convictions should
be resentenced as misdemeanors under section 1170.18. In his resentencing motion,
defendant relied upon section 490.2, subdivision (a) (section 490.2), which provides in
pertinent part, “Notwithstanding Section 487 or any other provision of law defining grand
theft, obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor . . . .” Defendant’s
resentencing motion, without citation to any evidence, contends his prior robbery
convictions did not result in the taking of property worth more than $950.
1
Unless otherwise noted, future statutory references are to the Penal Code.
2
Section 1170.18 provides in pertinent part, “A person currently serving a sentence
for a conviction, whether by trial or plea, of a felony or felonies who would have been
guilty of a misdemeanor under the act that added this section (‘this act’) had this act been
in effect at the time of the offense may petition for a recall of sentence . . . .” Section
1170.18 lists section 490.2 as one of the newly added sections that would qualify as a
misdemeanor. Defendant here is in effect asserting his second degree robbery
convictions would have been misdemeanors under section 490.2.
Section 490.2 is inapplicable here. The Court of Appeal considered a similar issue
regarding a defendant convicted under Vehicle Code section 10851, subdivision (a) in
People v. Page (2015) 241 Cal.App.4th 714, 717-720. In Page, the defendant asserted
his conviction under Vehicle Code section 10851, subdivision (a) should be resentenced
as a misdemeanor and also relied upon section 490.2. (Ibid.) The Court of Appeal
disagreed and held: “On its face . . . Penal Code section 490.2 does no more than amend
the definition of grand theft, as articulated in Penal Code section 487 or any other
provision of law, redefining a limited subset of offenses that would formerly have been
grand theft to be petty theft. (Pen. Code, § 490.2.) Vehicle Code section 10851 does not
proscribe theft of either the grand or petty variety, but rather the taking or driving of a
vehicle ‘with or without intent to steal.’ [Citations.] . . . Penal Code section 490.2 is
simply inapplicable to defendant’s conviction offense.” (People v. Page, supra, 241
Cal.App.4th at p. 719, fn. omitted.)
Section 211 provides, “Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” Though both theft and robbery involve an
unlawful taking, they are substantively not the same crime. Our Supreme Court held:
“Robbery is . . . ‘“‘a species of aggravated larceny.’”’ [Citation.] Theft by larceny may
be committed without force or the threat of violence and may be completed without the
victim ever being present. [Citation.] To elevate larceny to robbery, the taking must be
accomplished by force or fear and the property must be taken from the victim or in his
presence.” (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. omitted; accord, People v.
3
Williams (2013) 57 Cal.4th 776, 786.) Robbery is a crime against property and person.
(People v. Gomez, supra, 43 Cal.4th at p. 264; People v. Ramos (1982) 30 Cal.3d 553,
589 [“[T]he central element of the crime of robbery [is] the force or fear applied to the
individual victim in order to deprive him of his property.”].)
Section 490.2 applies only to theft. Robbery is not substantively the same crime
as theft; they have materially different elements. Defendant’s section 211 convictions
would not have been misdemeanors under section 490.2. Defendant would not qualify
for resentencing under section 1170.18. Even if section 490.2 applies, defendant bears
the burden of proving the value of the property taken did not exceed $950. (People v.
Page, supra, 241 Cal.App.4th at p. 719, fn. 2; People v. Sherow (2015) 239 Cal.App.4th
875, 879.) Defendant has not sustained his burden of proof in this regard.
The order denying defendant’s resentencing motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
4