P. v. Jaime

Filed 2/16/17 P. v. Jaime 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NOT TO BE PUBLISHED IN THE OFFICIAL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has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
AQUALINA JAIME,
Defendant and Appellant.
B267552
(Los Angeles County
Super. Ct. No. GA089412)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Villalobos, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Kathleen
Kenealy, Acting Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior

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Assistant Attorney General, Mary Sanchez and Ilana
Herscovitz, Deputy Attorneys General, for Plaintiff and
Respondent.
——————————
On October 7, 2013, a jury convicted Aqualina Jaime
(Jaime) of (among other offenses) four counts of theft of
access card information, in violation of Penal Code1 section
484e, subdivision (d). The court struck three of those
convictions at sentencing. On June 10, 2015, the trial court
denied Jaime’s petition to have the remaining section 484e,
subdivision (d) offense reclassified as a misdemeanor under
section 1170.18, enacted pursuant to Proposition 47. Jaime
appeals, and we affirm.
BACKGROUND
Our prior opinion in Jaime’s direct appeal includes the
following facts. An information charged Jaime with 14
felony counts, including four counts of theft of access card
information in violation of section 484e, subdivision (d).
Jaime pleaded not guilty. The evidence at trial showed that
Jaime used the victim’s Discover card to make a total of
$10,994.25 in transactions. A jury found her guilty on all
counts. At sentencing, the court struck three of the
section 484e, subdivision (d) convictions, as Jaime’s
acquisition of the card could not be the basis of multiple
convictions for repeated use of the account information.
(People v. Jaime (Jan. 22, 2015, B252835) [nonpub. opn.].)
1 All further statutory references are to the Penal Code.

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Jaime received a sentence of six years and eight months.2
On count 5, the remaining conviction on section 484e,
subdivision (d), Jaime received a three-year sentence, stayed
pursuant to section 654.
On April 22, 2015, Jaime filed a petition for recall and
resentencing under section 1170.18, subdivision (a), in which
(as relevant to this appeal) she requested her sentence on
count 5 be stricken. The trial court denied the petition in
part and granted it in part. As to count 5, the trial court
denied the petition on the ground that a violation of
section 484e, subdivision (d) was not reducible to a
misdemeanor. The court lifted the stay on the sentence on
count 5 and resentenced Jaime to eight months on count 5,
to run consecutively.3
2 The court also imposed a consecutive sentence of
eight months in another case, resulting in a total overall
sentence of seven years and four months. After
resentencing, Jaime’s total sentence (including the other
case) was six years and eight months.
3 At the resentencing hearing, Jaime did not object to
lifting the stay, and neither Jaime nor respondent addresses
whether section 654 required that the eight-month
resentence for count 5 be stayed. Nevertheless, “the waiver
doctrine does not apply to questions involving the
applicability of section 654. Errors in the applicability of
section 654 are corrected on appeal regardless of whether the
point was raised by objection in the trial court or assigned as
error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 550,
fn. 3.) The hearing transcript, in which the trial court
referred to “switching” the sentences on count 4 and count 5,

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Jaime filed a timely appeal.
Section 484e, subdivision (d), provides: “Every person
who acquires or retains possession of access card account
information with respect to an access card validly issued to
another person, without the cardholder’s or issuer’s consent,
with the intent to use it fraudulently, is guilty of grand
theft.”
Proposition 47, approved by the electorate in November
2014, made certain theft offenses misdemeanors by enacting
section 490.2, subdivision (a), which states:
“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 . . . shall be
considered petty theft and shall be punished as a
misdemeanor,” with exceptions not in issue here.
Section 1170.18 creates a resentencing procedure for
defendants whose offenses have been reclassified as
misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th
1085, 1092–1093.)
The California Supreme Court has granted review in
the published decisions addressing (with conflicting results)
whether a violation of section 484e, subdivision (d) may be
classified as a misdemeanor under the provisions enacted by
Proposition 47. (See (People v. Thompson (2015) 243
does not explain why the count 5 sentence, which originally
was stayed, was not stayed on resentencing. On the record
before us, we cannot say that the trial court committed error.

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Cal.App.4th 413, review granted Mar. 9, 2016, S232212;
People v. Grayson (2015) 241 Cal.App.4th 454, review
granted Jan. 20, 2016, S231757; People v. Cuen (2015) 241
Cal.App.4th 1227, review granted Jan. 20, 2016; People v.
Romanowski (2015) 242 Cal.App.4th 151, review granted
Jan. 20, 2016, S231405; People v. King (2015) 242
Cal.App.4th 1312, review granted Feb. 24, 2016, S231888;
People v. Thompson (2015) 243 Cal.App.4th 413, review
granted Mar. 9, 2016, S232212.)
Jaime had the burden of proving to the trial court that
she was eligible for resentencing. (People v. Sherow (2015)
239 Cal.App.4th 875, 879.) That includes the requirement
that the value of the property not exceed $950. (People v.
Pak (2016) 3 Cal.App.5th 1111, 1117–1118.) Jamie has
failed to show that the value of the property in issue did not
exceed $950. Her petition does not give any evidence of the
value of the property. At the hearing, neither the trial court
nor Jaime’s counsel discussed the value of the property in
issue on count 5, although counsel stated, “[O]ur position is
that the [484e, subdivision (d)] is reducible since it is a grand
theft crime and pursuant to . . . section [490.2], all grand
theft crimes under $950 are now misdemeanors.” As we
stated above, the evidence at her trial was that Jaime
charged almost $10,994.25 to the Discover card, and at her
sentencing hearing an investigator testified that the
transactions Jaime made totaled that amount. Jaime has
not shown that the value of the property in issue on count 5
did not exceed $950, as required for eligibility for

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resentencing under Proposition 47. We therefore do not
address whether violation of section 484e, subdivision (d) is
reclassifiable as a misdemeanor under the provisions
enacted by Proposition 47.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.

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