People v. Slaby

GILBERT, P. J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2017008372)
(Ventura County)

Sean Roy Slaby appeals a judgment following his conviction for theft from an elder (Pen. Code, § 368, subd. (d)) "committed" by "identity theft" (§ 530.5) (count 1), a felony; and unauthorized use of personal identifying information of another (id., subd. (a)) (count 2), a felony. On three occasions, Slaby used a forged check belonging to his step-grandfather to deposit money into his own bank account. The checks were for $300, $325, and $350. The trial court sentenced Slaby to an aggregate four-year felony jail sentence, with one year of jail time, followed by three years of mandatory supervision. Included within that sentence was a one-year consecutive enhancement under section 667.5, subdivision (b).

All statutory references are to the Penal Code. --------

Slaby claims his conduct in committing the identity theft offenses in counts 1 and 2 fell within Proposition 47, the Safe Neighborhoods and Schools Act. (§ 1170.18.) The trial court denied his motion to reduce the convictions on those counts to misdemeanors. We conclude, among other things, that Slaby's convictions in counts 1 and 2 fall outside the scope of Proposition 47. We affirm but remand for the trial court to determine whether Slaby is entitled to be resentenced as a result of Senate Bill No. 136 (effective January 1, 2020), which amends the section 667.5, subdivision (b) enhancement the court imposed. This new law is retroactive.

FACTS

Slaby lived for a time with his step-grandfather Robert Slaby (Robert). Slaby was Robert's caretaker. Robert did not give Slaby authority to use his checking account. Robert discovered that his checking account balance was lower than it should have been. He went to the bank to find out why. Robert discovered that three checks were written on his checking account for payment to Slaby that he did not sign.

Yenny Kadoya, a fraud investigator, from Westcom Credit Union (Westcom) testified, that between January 24 and 26, 2017, Slaby deposited the three forged checks for amounts of $300, $325, and $350 into Slaby's own Westcom account. The $300 check was deposited on January 24. The $350 check was deposited on January 26. Slaby used the three checks he deposited to withdraw cash or to buy items at Ross, Walmart, and Vons.

In a six-count amended felony information, the People alleged Slaby committed identity theft from an elder (count 1), unauthorized use of personal identifying information of another (count 2), unlawful driving (count 3), forgery of a $300 check (count 4), forgery of a $325 check (count 5), and forgery of a $350 check (count 6). On counts 4 through 6, the People alleged the amounts of the forged checks "did not exceed Nine Hundred Fifty Dollars ($950.00)." (Italics added.)

The jury found Slaby guilty of counts 1 and 2. It was not able to reach a verdict on counts 3 through 6. The trial court later dismissed those counts.

The trial court denied Slaby's request to rule that his convictions on counts 1 and 2 fall within Proposition 47. The amounts taken in those counts did not exceed $950, "the threshold necessary for it to be a felony."

DISCUSSION Eligibility for a Misdemeanor Sentence Under Proposition 47

In People v. Jimenez (2020) 9 Cal.5th 53, 58, our Supreme Court held that felony convictions for misuse of personal identifying information under section 530.5 may not be reduced to misdemeanors under Proposition 47. The trial court did not err.

DISPOSITION

We affirm the judgment, but remand for the trial court to determine whether Slaby is entitled to resentencing relief under Senate Bill No. 136 (effective January 1, 2020), which amends the section 667.5, subdivision (b) enhancement that the court imposed. This new law is retroactive.

NOT TO BE PUBLISHED.

GILBERT, P. J. We concur:

YEGAN, J.

TANGEMAN, J.

David R. Worley, Judge

Superior Court County of Ventura

Emma Gunderson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.