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
2 We have previously set forth the full facts and procedural
history in People v. Valenzuela (April 30, 2015, No. B256440
[nonpub. opn.]). We do not repeat them here except as relevant
to the issue before us.
2
conviction, finding that the reclassification of his theft conviction
as a misdemeanor did not affect that count.
Valenzuela‟s appeal concerns the difference between
a gang enhancement, which requires a felony conviction
(§ 186.22, subd. (b)(1)), and a street terrorism conviction, which
requires both the active participation in a criminal street gang
and the willful promotion of “felonious criminal conduct” by gang
members. (Id., subd. (a).) As we shall explain, the street
terrorism conviction did not require a felony conviction; it
required only that Valenzuela‟s conduct (which resulted in the
grand theft conviction) was felonious at the time he engaged in it.
DISCUSSION
Valenzuela claims the trial court “failed to treat [his]
resentencing as a plenary sentencing which required the court to
take into account [his grand theft conviction‟s] reduction to a
misdemeanor when resentencing on [the street terrorism
conviction].” But the trial court did treat the resentencing as a
plenary sentencing. It resentenced him to a misdemeanor on the
grand theft count and struck the enhancements on that count—
including the gang enhancement—that did not apply to a
misdemeanor conviction. Valenzuela does not argue that his
modified sentence on the street terrorism count was
unauthorized for a valid conviction; he contends that the street
terrorism conviction itself was invalid after the theft conviction
became a misdemeanor. We disagree.
“The gravamen of the [street terrorism offense] is
active participation in a criminal street gang.” (People v. Albillar
(2010) 51 Cal.4th 47, 55.) To that end, it requires participation in
the “felonious criminal conduct” of at least one other gang
member. (§ 186.22, subd. (a); People v. Rodriguez (2012)
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55 Cal.4th 1125, 1134.) It does not require that anyone sustain a
conviction for that conduct. Because the focus is on the
commission rather than the conviction of a felony, it is irrelevant
that Valenzuela‟s theft conviction “shall [now] be considered a
misdemeanor for all purposes.” (§ 1170.18, subd. (k).)
Valenzuela‟s reliance on cases such as People v. Park (2013)
56 Cal.4th 782, People v. Abdallah (2016) 246 Cal.App.4th 736,
and People v. Flores (1979) 92 Cal.App.3d 461, is misplaced.
Those cases involved sentence enhancements predicated on the
felony status of a conviction.
Grand theft is generally a “wobbler” (People v. Ceja
(2010) 49 Cal.4th 1, 7, fn. 6), which “becomes a „misdemeanor for
all purposes‟ . . . only when the court takes affirmative steps to
classify the crime as a misdemeanor.” (People v. Park, supra,
56 Cal.4th at p. 793; see People v. Abdallah, supra,
246 Cal.App.4th at p. 745 [construing “the phrase „misdemeanor
for all purposes‟ in section 1170.18, subdivision (k), to mean the
same as it does in section 17”].) “If ultimately a misdemeanor
sentence is imposed, the offense is a misdemeanor from that
point on, but not retroactively . . . .” (People v. Feyrer (2010)
48 Cal.4th 426, 439, superseded by statute on another ground as
stated in Park, at p. 789, fn. 4; People v. Moomey (2011) 194
Cal.App.4th 850, 857 [“[A] wobbler is a felony at the time it is
committed and remains a felony unless and until the principal is
convicted and sentenced to something less than imprisonment in
state prison (or the crime is otherwise characterized as a
misdemeanor)”].)
When Valenzuela stole the bicycle, he engaged in
felonious criminal conduct. That is true regardless of his
conviction for grand theft and its subsequent reduction to a
4
misdemeanor. The trial court properly declined to set aside his
conviction for street terrorism.
DISPOSITION
The order denying Proposition 47 resentencing on
Valenzuela‟s street terrorism conviction is affirmed.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
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Nancy L. Ayers, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender, Michael C.
McMahon, Chief Deputy, and William Quest, Senior Deputy
Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Mary Sanchez,
Deputy Attorney General, for Plaintiff and Respondent.