People v. Nunez CA2/1 ( 2016 )

Filed 2/29/16 P. v. Nunez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B266314
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA106359)
v.
ARMANDO NUNEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Victor
D. Martinez, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
In 2014 Armando Nunez entered a negotiated plea of no contest to charges of
second degree burglary and grand theft by fraudulent use of an access card or account
information (Pen. Code, § 484g). He also admitted an allegation of a prior prison term
within the scope of Penal Code section 667.5, subdivision (b). In conformity with the
plea agreement, the trial court sentenced him to two years in jail on each count, with the
terms running concurrently. In July of 2015, he filed a petition to recall his sentence
pursuant to Penal Code section 1170.18, enacted as part of Proposition 47 (the Safe
Neighborhoods and Schools Act). The trial court granted his petition with respect to the
burglary, but denied it with respect to the grand theft. The court recalled and set aside the
sentence on the burglary count and imposed a one-year term to run concurrently with the
two-year term for grand theft.
Defendant appealed and we appointed counsel to represent him on appeal. After
examining the record, counsel filed an opening brief raising no issues and asking this
court to independently review the record. On January 11, 2016, we advised defendant he
had 30 days within which to personally submit any contentions or issues he wished us to
consider. To date, we have received no response.
We have examined the entire record and are satisfied that defendant’s attorney has
fully complied with his responsibilities and that no arguable issues exist. (People v.
Kelly (2006) 40 Cal. 4th 106, 109–110; People v. Wende (1979) 25 Cal. 3d 436, 441.)
Eligibility for resentencing under Penal Code section 1170.18 is limited to convictions for
the offenses specified therein, in subdivision (a). Penal Code section 484g is not listed in
Penal Code section 1170.18, subdivision (a). Although Penal Code section 490.2
provides that grand theft convictions where the value of the property, etc. taken does not
exceed $950.00 are deemed petty theft and therefore eligible for resentencing under Penal
Code section 1170.18, a felony conviction of grand theft under Penal Code section 484g
requires that the value of the money, goods, services, or other things obtained exceed
$950.00 in any consecutive six-month period. The charge against defendant was based
upon takings in a single day. Thus, defendant’s Penal Code section 484g conviction
2
remains grand theft, not petty theft, and is ineligible for resentencing under Penal Code
section 1170.18.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
3