People v. Mountford CA2/1

Filed 8/21/20 P. v. Mountford CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B287245
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA080859)
v.
DAVID GORDON MOUNTFORD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stanley Blumenfeld, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill
and Allison H. Chung, Deputy Attorneys General, for Plaintiff
and Respondent.
____________________________
In defendant David Gordon Mountford’s original appeal,
we affirmed the trial court’s order denying his petitions to reduce
his convictions for identity theft, forgery, and possession of a
forged driver’s license to misdemeanors under Penal Code1
section 1170.18. We concluded that the convictions were
ineligible for relief under Proposition 47, the voter initiative that
enacted section 1170.18.
Our Supreme Court granted review and directed us to
reconsider our decision in light of People v. Jimenez (2020)
9 Cal.5th 53 (Jimenez). Jimenez held, as did we in Mountford’s
original appeal, that the offense commonly called identity theft
is not eligible for relief under Proposition 47. Jimenez did not
address the reasoning that led us to conclude Mountford’s
convictions for forgery and possession of a forged driver’s license
were ineligible for relief. Mountford has opted not to file a
supplemental brief, and therefore gives us no reason to question
our original holding in light of Jimenez. Accordingly, we again
affirm the trial court’s order.
FACTUAL BACKGROUND
We quote the summary of the facts from our original
opinion in this appeal. (People v. Mountford (May 28, 2019,
B287245) [nonpub. opn.]).
“On the evening of February 27, 2009, Mountford and
two women went to the Trans Ocean Volkswagen dealership in
Pasadena. Mountford said he was interested in purchasing three
vehicles. He identified himself as Ernestas Dranseika and used
Dranseika’s federal tax identification number when completing a
1 Undesignated statutory citations are to the Penal Code.
2
credit application. A credit check revealed a fraud alert as to
that number. The sales manager called the police. When the
police arrived, Mountford admitted attempting to purchase the
vehicles with a stolen identity.” (People v. Mountford, supra,
B287245.)
“The police arrested Mountford. At the police station,
Mountford identified himself as Douglas Korn. The police found
a valid driver’s license bearing the name of Douglas Korn in a Kia
that Mountford said belonged to him. The police booked
Mountford in the name of Douglas Korn. Mountford asked the
police to leave the Kia parked where it was, but the police
impounded it. Mountford signed the vehicle disposition form
with the name Douglas Korn. The police then discovered
Mountford’s identity through his fingerprints.” (People v.
Mountford, supra, B287245.)
“The police subsequently learned that Mountford had
purchased the Kia through fraudulent means in 2008. A police
officer met with the finance manager of the Glendale Kia
dealership. The finance manager stated that ‘Douglas Korn’ had
purchased the Kia for $ 9,600 using four prepaid debit cards and
a non-prepaid debit card with Korn’s name on it. The officer
went to the bank where the prepaid debit cards had been
purchased and learned that Mountford had purchased the cards.”
(People v. Mountford, supra, B287245.)
“The officer attempted to locate Korn. Korn’s parole officer
indicated that Korn had been arrested by the FBI on
September 8, 2008 and had been in federal custody since then.
The officer went back to the Kia dealership. The used car sales
manager identified Mountford from a photographic lineup as the
person who had purchased the Kia using a driver’s license and
3
social security card in the name of Douglas Korn. The officer
later spoke to Korn, who stated that he did not know Mountford
and had not given Mountford permission to use his name or
identification.” (People v. Mountford, supra, B287245.)
PROCEDURAL BACKGROUND
In February 2011, Mountford pleaded no contest to and was
convicted of two counts of what was referred to in the information
as “identity theft” (§ 530.5, subd. (a)), one count of forgery of a
credit application (§ 470, subd. (a)), and one count of possession of
a forged driver’s license (§ 470b). The trial court sentenced
Mountford to five years in state prison.
In October 2017, Mountford petitioned the trial court under
section 1170.18 to reduce his four convictions to misdemeanors.
The trial court denied the petitions.
We affirmed. We recognized there was a split of authority
as to whether convictions under section 530.5 were eligible for
relief under Proposition 47, and the issue was before the
Supreme Court. Our own analysis, however, led us to conclude
that offenses under section 530.5, subdivision (a) are not “theft
offenses” and do “not fall within the purview of Proposition 47.”
(People v. Mountford, supra, B287245.)
We further concluded that, although “Proposition 47 made
certain types of forgery eligible for resentencing as a
misdemeanor,” that relief applied only to documents specified in
section 473, subdivision (b), namely “ ‘a check, bond, bank bill,
note, cashier’s check, traveler’s check, or money order . . . .’ ”
(People v. Mountford, supra, B287245, quoting § 473, subd. (b).)
Because the documents involved in Mountford’s forgery
convictions—a credit application and a driver’s license—are not
4
on this list, we held that those convictions were ineligible for
reduction to misdemeanors.
The Supreme Court granted review and remanded the case
to us “with directions to vacate [our] decision and to reconsider
the cause in light of [Jimenez].” Mountford chose not to file a
supplemental brief, instead submitting on the briefs from his
original appeal. The Attorney General filed a supplemental brief.
DISCUSSION
“In November 2014, the voters passed Proposition 47, The
Safe Neighborhoods and Schools Act, which reduced certain drug-
and theft-related offenses from felonies or ‘wobblers’ to
misdemeanors.” (People v. Martinez (2018) 4 Cal.5th 647, 651.)
“Through its various provisions, Proposition 47 made clear that
certain types of criminal conduct once punishable as felonies now
constitute only misdemeanors.” (Ibid.) Among other things,
Proposition 47 added “two new theft crimes”—section 459.5,
misdemeanor shoplifting, and section 490.2, petty theft.
(Jimenez, supra, 9 Cal.5th at p. 62.)
Under section 1170.18, subdivision (f), “A person who has
completed his or her sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court
that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as misdemeanors.”
The issue before us is whether offenses under section 530.5,
subdivision (a) qualify for relief under section 1170.18.
Section 530.5, subdivision (a) provides, in relevant part:
“Every person who willfully obtains personal identifying
information, as defined in subdivision (b) of Section 530.55, of
5
another person, and uses that information for any unlawful
purpose, including to obtain, or attempt to obtain, credit, goods,
services, real property, or medical information without the
consent of that person, is guilty of a public offense . . . .”
Mountford has submitted on the briefing from his original
appeal, which contended that because he “unlawfully obtained
personal identifying information with the intent to commit theft,”
his offenses under section 530.5, subdivision (a) could be
construed as either shoplifting or petty theft under
Proposition 47, and thus could be reduced to misdemeanors
under section 1170.18, subdivision (f).
The Supreme Court concluded in Jimenez, however, that
convictions under section 530.5, subdivision (a) are not eligible
for reduction to misdemeanor shoplifting or petty theft.
(Jimenez, supra, 9 Cal.5th at pp. 59, 70.) The court noted that,
although an offense under section 530.5, subdivision (a) is
“colloquially described as ‘identity theft,’ ” the crime is actually
“misuse of personal identifying information.” (Jimenez, at p. 58.)
“[S]ection 530.5, subdivision (a) makes no mention of theft,”
and it “contains no requirement, ‘central to the crime of theft[,]
that the information be stolen at all’ [citation], or that the
victim’s information was taken with ‘the intent to permanently
deprive the owner of its possession’ [citation]. Indeed, by its very
terms, the offense of misuse of personal identifying information
can be accomplished by acquiring the information with valid
consent, using it for an unlawful purpose, and returning it.”
(Jimenez, supra, 9 Cal.5th at p. 63.) “The statute prohibits a
person from ‘acquiring, retaining, or using information, rather
than taking it,’—itself a fair indicator that the Legislature was
concerned with use, not theft.” (Id. at p. 65.) Thus, section 530.5
6
“is not a theft offense, but ‘an essentially unique crime.’ ”
(Jimenez, at p. 65.)
The defendant in Jimenez argued that his conduct—in that
case, “enter[ing] a commercial establishment . . . with intent to
commit theft by false pretenses”—constituted misdemeanor
shoplifting under Proposition 47. (Jimenez, supra, 9 Cal.5th
at pp. 65–66.) The court rejected this argument: “The critical
question for reclassification is whether the felony offense ‘ “would
have been . . . a misdemeanor under [Proposition 47] had [it] been
in effect at the time of the offense.” ’ ” (Jimenez, at p. 66.) “Only
if the offense is eligible for reclassification must a court consider
whether a defendant’s conduct fulfills the elements of shoplifting,
bringing it within Proposition 47’s scope.” (Jimenez, at p. 66.)
The court acknowledged that “[p]eople who violate section 530.5,
subdivision (a) will often use the information to commit some
manner of theft, making the theft an important element of that
second crime,” but that does not convert the violation of
section 530.5, subdivision (a) itself into a theft offense.
(Jimenez, at p. 70.)
For the same reasons, the court held that an offense under
section 530.5, subdivision (a) did not qualify for reduction to petty
theft under section 490.2: “The offense described by section 530.5
criminalizes the improper use, not the illegal taking, of
information. Like shoplifting, misuse of personal identifying
information shares no common elements with petty theft.”
(Jimenez, supra, 9 Cal.5th at p. 70.) The court concluded,
“[U]se of the shorthand ‘identity theft’ to describe the offense in
section 530.5 doesn’t somehow make the misuse of personal
identifying information swallow up elements of the theft offense,
nor does it otherwise ‘provide a reason to read into the statute an
7
additional element that cannot be found by referring to the
language of the statute.’ ” (Jimenez, at p. 71.)
Under Jimenez, we reject Mountford’s contention that his
offenses under section 530.5 were theft crimes merely because he
misused personal identifying information to commit theft.
Jimenez explicitly rejected this argument, concluding that
offenses under section 530.5, subdivision (a) do not qualify as
either shoplifting or petty theft, even if those offenses were
committed for the purpose of facilitating theft. (Jimenez, supra,
9 Cal.5th at pp. 65–66.) Thus, Mountford’s “identity theft”
convictions are not eligible for reduction.
Jimenez did not address whether forgery crimes eligible
for reduction to misdemeanors under Proposition 47 are
limited to forgeries involving documents listed in section 473,
subdivision (b), as we concluded in Mountford’s original appeal.
Thus, Jimenez has no impact on our original holding that
Mountford’s convictions for forgery of a credit application and
possession of a forged driver’s license are ineligible for relief.
Mountford, having declined to file a supplemental brief, makes no
argument to the contrary, and therefore gives us no reason to
question our original holding in light of Jimenez.
8
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
9