gno.law

People v. Anderson CA4/1

California Court of Appeal · D069220 · 2016-06-24 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Bernardino County · No. FWV1301843
Trial judge
Jon D. Ferguson
Outcome
reversed in part — Affirmed in part and reversed in part with directions.
Area
criminal
Panel
Patricia D. Benke (author), O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:47Z · confidence high

The trial court convicted the defendant of robbery and grand theft arising from the same incident and imposed two prior prison term enhancements based on concurrent prior convictions. On appeal, the court reversed the grand theft conviction as a lesser included offense of robbery and ordered one enhancement stricken, but affirmed the robbery conviction and rejected the defendant's arguments for automatic retroactive application of Proposition 47.

Ruling reviewedStandardThe courtThe model
Conviction for grand theft (Count 2) concurrent with robbery (Count 1) for the same property taken from a temporary custodian.
“Accordingly, Anderson could not be convicted of both crimes, and we will reverse his conviction with respect to count 2 and direct that count 2 be dismissed.”
de novoerroragree with court
The court correctly applied the rule that a defendant cannot be convicted of both a greater offense and a lesser included offense arising from the same course of conduct. By treating the temporary custodian as being in constructive possession, the court properly extended the logic of People v. Villa and People v. Estes to this factual scenario, making the grand theft a lesser included offense of the robbery.
Imposition of two prior prison term enhancements under Penal Code section 667.5 based on two prior convictions for which the defendant served a single concurrent term.
“Because the trial court imposed an enhancement for each one of two the prior convictions, the parties agree that one of the enhancements must be stricken.”
de novoerroragree with court
The court correctly identified that Penal Code section 667.5, subdivision (b) limits enhancements to the number of prior prison terms actually served. Since the defendant served a concurrent sentence for the two prior convictions, he suffered only one prior prison term, rendering the second enhancement legally impermissible.
Refusal to automatically reduce the theft conviction (Count 3) to a misdemeanor under Proposition 47 on direct appeal.
“Anderson is limited to the statutory remedy of petitioning for recall of sentence under Penal Code section 1170.18.”
de novonot reachedagree with court
The court correctly held that the express statutory remedy provided in Penal Code section 1170.18 acts as a conditional saving clause, displacing the general presumption of retroactivity established in In re Estrada. This aligns with the holding in People v. Noyan, which limits defendants to the post-conviction petition process for Proposition 47 relief.
Use of prior felony convictions, now misdemeanors under Proposition 47, as prior prison term enhancements.
“We agree with the reasoning of the court in Diaz. The Act did not provide automatic retroactive relief from a prior conviction.”
de novonot reachedagree with court
The court correctly applied People v. Diaz to reject the argument that Estrada or People v. Flores requires the automatic exclusion of prior convictions from enhancement calculations. The court properly noted that the prior convictions were final before Proposition 47 took effect and that the statute's specific remedial scheme precludes automatic retroactive application on direct appeal.

Authorities

  • relied: People v. Villa (2007) 157 Cal.App.4th 1429 — A defendant cannot be convicted of both robbery and theft when the theft is a lesser included offense of the robbery, even if the victim was an employee in constructive possession of the property.
  • relied: People v. Estes (1983) 147 Cal.App.3d 23 — Constructive possession by an employee allows for a robbery conviction that precludes a separate theft conviction for the same property.
  • relied: People v. Ledesma (2006) 39 Cal.4th 641 — Theft is a lesser included offense of robbery.
  • relied: People v. Ortega (1998) 19 Cal.4th 686 — A defendant cannot be convicted of both a greater offense and a lesser included offense arising from the same course of conduct.
  • relied: In re Estrada (1965) 63 Cal.2d 740 — There is a presumption that a legislative act mitigating punishment applies to all nonfinal judgments, unless the statute provides a specific remedial scheme that acts as a saving clause.
  • relied: People v. Noyan (2014) 232 Cal.App.4th 657 — Defendants subject to Proposition 47 are limited to the statutory remedy of petitioning for recall of sentence under Penal Code section 1170.18, which displaces the Estrada presumption.
  • relied: People v. Diaz (2015) 238 Cal.App.4th 1323 — Proposition 47 does not automatically preclude the use of prior felony convictions as enhancements on direct appeal; the Estrada presumption does not apply to final prior convictions used in the current sentencing.
  • relied: People v. Flores (1979) 92 Cal.App.3d 461 — Statutes decriminalizing conduct may have retroactive effects on prior convictions used in future proceedings, but this is distinguished from Proposition 47's specific remedial scheme.
  • relied: People v. Jones (1998) 63 Cal.App.4th 744 — For purposes of Penal Code section 667.5, a defendant who serves concurrent terms for multiple prior convictions is considered to have suffered only one prior prison term.

The appellate opinion: sound — The opinion is sound because it correctly applies established lesser-included-offense principles to the specific facts of constructive possession and accurately interprets the interaction between Proposition 47's statutory remedy and the Estrada presumption. It relies on recent, on-point authority (Noyan and Diaz) to resolve the novel Proposition 47 issues without overreaching.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

A jury convicted Anderson of robbery of Quezada (count 1), grand theft of Koniglio's laptop taken while Quezada was watching it (count 2), petty theft with priors (count 3), and a second robbery (count 4), and the trial court imposed two one-year prior prison term enhancements under Penal Code section 667.5, subdivision (b), for a total term of eight years eight months. The Court of Appeal reversed count 2 because theft is a lesser included offense of the robbery of the same constructive possessor, struck one prior prison term enhancement by agreement of the parties, rejected both Proposition 47 arguments as requiring a section 1170.18 petition rather than relief on direct appeal, and otherwise affirmed.

Ruling reviewedStandardThe courtThe model
Entry of judgment of conviction on both count 1 (robbery of Quezada) and count 2 (grand theft of Koniglio's laptop) arising from the same taking
“Here, like the employees in Villa and Estes, Quezada was in constructive possession of Koniglio's computer and was the victim of both the theft and the robbery.”
de novoerror (law misapplied)agree with court
Theft is a lesser included offense of robbery (Ledesma; Ortega), and a defendant cannot stand convicted of both for the same course of conduct. Quezada, as temporary custodian of the laptop, was in constructive possession just as the store employees were in Villa and Estes, so the robbery of Quezada and the theft of the laptop he was guarding were a single greater/lesser pair. Reversal and dismissal of count 2 is the correct remedy.
Felony sentence on count 3 (petty theft with priors) left in place rather than reduced to a misdemeanor on direct appeal under Proposition 47
“The express provision of a remedy by way of Penal Code section 1170.18 acts as a conditional saving clause and takes the Act outside the general rule set forth in Estrada.”
de novocorrectagree with court
The court followed Noyan and the Yearwood analysis of the parallel Proposition 36 procedure, treating section 1170.18 as a saving clause that displaces the Estrada presumption and channels relief into a trial-court petition. That reasoning was consistent with the weight of appellate authority at the time and was later confirmed by the Supreme Court in People v. DeHoyos, so the conclusion is sound.
Imposition of Penal Code section 667.5, subdivision (b) enhancements based on prior second degree burglary convictions that would now be misdemeanors under Proposition 47
“The Act did not provide automatic retroactive relief from a prior conviction.”
de novocorrectagree with court
Following Diaz, the court correctly held that Proposition 47 does not automatically reduce prior felony convictions in final judgments; the defendant must first obtain redesignation by petition under section 1170.18. The priors here had not been reduced, Estrada does not reach a final prior judgment, and Flores concerned marijuana statutes with express language barring future use of the convictions. The court properly reserved the subdivision (k) question for a case where the prior has actually been reduced.
Imposition of two separate one-year prior prison term enhancements where the two prior convictions were served as a single concurrent prison term
“Because the trial court imposed an enhancement for each one of two the prior convictions, the parties agree that one of the enhancements must be stricken.”
de novoerror (law misapplied)agree with court
Section 667.5, subdivision (b) punishes separate prior prison terms, not separate prior convictions; convictions served concurrently as one term support only one enhancement (Jones). The People conceded the point and the court correctly struck one enhancement.

Authorities

  • relied: People v. Villa (2007) 157 Cal.App.4th 1429 — A store employee in constructive possession of merchandise is a robbery victim, and the defendant cannot be convicted of both robbery and the lesser included theft of the same property.
  • relied: People v. Estes (1983) 147 Cal.App.3d 23 — Force used against a pursuing employee to retain stolen property makes the taking a robbery of that employee; theft is a lesser included offense.
  • relied: People v. Ledesma (2006) 39 Cal.4th 641 — Theft is a lesser included offense of robbery.
  • relied: People v. Ortega (1998) 19 Cal.4th 686 — A defendant cannot be convicted of both robbery and the lesser included offense of theft arising from the same course of conduct.
  • relied: In re Estrada (1965) 63 Cal.2d 740 — A statute mitigating punishment is presumed to apply to all judgments not yet final absent a saving clause.
  • relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Description of Proposition 47 as reclassifying certain drug and theft offenses as misdemeanors.
  • relied: People v. Noyan (2014) 232 Cal.App.4th 657 — A defendant whose judgment is not final is limited to the section 1170.18 petition remedy and cannot obtain Proposition 47 relief on direct appeal.
  • relied: People v. Yearwood (2013) 213 Cal.App.4th 161 — Proposition 36's postconviction resentencing procedure is the functional equivalent of a saving clause displacing the Estrada presumption.
  • relied: People v. Diaz (2015) 238 Cal.App.4th 1323 — Proposition 47 does not automatically reduce prior felony convictions; a prior may support a section 667.5(b) enhancement until redesignated by petition, and neither Estrada nor Flores compels otherwise.
  • relied: People v. Flores (1979) 92 Cal.App.3d 461 — Marijuana decriminalization statutes with express language barring future use of prior convictions precluded use of those convictions for enhancement; distinguished as inapplicable to Proposition 47.
  • relied: People v. Jones (1998) 63 Cal.App.4th 744 — Prior convictions served as a single concurrent prison term support only one section 667.5(b) enhancement.

The appellate opinion: sound — The opinion correctly applies the lesser-included-offense rule to the constructive-possession facts and follows the then-prevailing (and later Supreme Court-confirmed) view that Proposition 47 relief for nonfinal judgments and for prior-conviction enhancements runs through section 1170.18 petitions rather than direct appeal. It candidly reserves the subdivision (k) question and resolves the conceded enhancement error with the right authority, leaving no argument unanswered.

How this analysis was made · dispute it

Opinion

Filed 6/24/16 P. v. Anderson CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069220

Plaintiff and Respondent, v. (Super. Ct. No. FWV1301843)

CAMERON MILLS ANDERSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Jon D. Ferguson, Judge. Affirmed in part and reversed in part with directions.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.

Taylor and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

In this criminal case, one of the three victims of defendant Cameron Mills Anderson's crime spree, and his friend, were at a coffee shop and the victim was briefly watching his friend's laptop computer. Anderson picked up the friend's computer and ran away. The victim tried to stop the theft, and Anderson hit him in the face with the back of his hand and kicked him in the stomach. As the rightful possessor of the computer, there is no question the victim was robbed. However, the victim's role as temporary custodian of his friend's computer prevented Anderson from being convicted of both robbery of the victim and grand theft of the computer. Accordingly, we reverse the judgment of conviction with respect to one count of grand theft and direct that the grand theft count be dismissed. Because the People agree that we should do so, we also strike one of two prior prison term enhancements imposed by the trial court. As we explain, in all other respects we affirm Anderson's judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. Counts 1 and 2 On April 3, 2013, Austin Koniglio and Adam Quezada were studying together at a Starbucks coffee shop in Rancho Cucamonga. Koniglio got up from his table to go get some food and asked Quezada to watch his $1,200 laptop computer. After Koniglio left the coffee shop, Anderson walked into the coffee shop, looked around, grabbed Koniglio's laptop and ran out. Quezada gave chase. At one point, Quezada grabbed the back of Anderson's sweatshirt and Anderson hit Quezada in the face with the back of his hand; Anderson then ran to a car, and Quezada grabbed him again, but Anderson kicked him in the stomach twice, knocking the wind out of Quezada. Anderson then drove off.

2 Later, Quezada was able to identify Anderson from a six-pack photo lineup.

B. Count 3 On April 6, 2013, Anderson and another man walked outside a Starbuck's coffee shop and took Heather Holmes's cell phone and wallet from a table where she was sitting with a friend. Anderson and his companion ran to a car in a nearby apartment complex and drove off, running a red light.

C. Count 4 On April 7, 2013, Anderson and another man entered a third Starbucks location.

Anderson took Michelle Tostado's laptop computer from her while she was using it.

Anderson's companion took another woman's cell phone. Tostado and another patron of the Starbuck's chased Anderson to a car; during the course of the chase, Anderson backhanded Tostado. However, Tostado was able to remember the license plate number of the car Anderson and his companion were driving and provide that information to police. Later, Anderson was arrested while driving the car.

D. Trial Court Proceedings Anderson was charged with the robbery of Quezada and the grand theft of Koniglio's laptop computer (counts 1 & 2); the petty theft of Holmes's cell phone and wallet (count 3) and the robbery of Tostado (count 4). With respect to the petty theft, it was alleged Anderson had three prior convictions within the meaning of Penal Code section 666, subdivision (a). The information further alleged Anderson had two prior prison term convictions within the meaning of Penal Code section 667.5.

3 On April 17, 2014, Anderson was convicted by a jury on all counts. On August 15, 2014, the trial court sentenced him to a term of five years in prison on count 1, the robbery of Quezada; a concurrent two years on count 2, the grand theft of Koniglio's laptop computer; a consecutive eight months on count 3, the theft from Holmes; and a consecutive one-year term for the robbery of Tostado. The trial court also found the prior prison term allegations true and imposed one-year consecutive sentences for each alleged prior. Thus, Anderson was sentenced to a total term of eight years eight months.

Anderson filed a timely notice of appeal.

DISCUSSION

I

Anderson contends that where, as here, one person or his agent is the victim in a single incident of both grand theft and robbery committed by the same person, grand theft is a lesser included offense of robbery and the perpetrator may only be found guilty of the greater offense, robbery. (See People v. Villa (2007) 157 Cal.App.4th 1429, 1435 (Villa);

People v. Estes (1983) 147 Cal.App.3d 23, 29 (Estes).) Thus, he argues his conviction for the theft of Koniglio's computer (count 2) must be reversed and that count must be dismissed. We agree.

Theft is a lesser included offense within robbery (People v. Ledesma (2006) 39 Cal.4th 641, 715); a defendant cannot be convicted of both the greater offense of robbery and the lesser included offense of theft when they occur during the same course of conduct. (People v. Ortega (1998) 19 Cal.4th 686, 692.) In both Villa and Estes, the 4 defendants took items from retail stores, and the employees of the stores gave chase and were met with the threat of violence. In both cases, the courts found that because the defendants had been found guilty of robbery they could not also be found guilty of theft.

In both cases, the courts recognized that although the stolen property did not belong to the respective employees, that as agents of their employers, the employees were in constructive possession of the property and were victims of both the theft and the robbery. (Villa, supra, 157 Cal.App.4th at p. 1435, Estes, supra, 147 Cal.App.3d at p. 29.)

Here, like the employees in Villa and Estes, Quezada was in constructive possession of Koniglio's computer and was the victim of both the theft and the robbery.

Accordingly, Anderson could not be convicted of both crimes, and we will reverse his conviction with respect to count 2 and direct that count 2 be dismissed.

II

Following entry of the judgment of conviction, on November 4, 2014, the voters approved Proposition 47 (The Safe Neighborhoods and School Act; hereafter the Act).

Anderson makes two claims related to the Act. We reject both claims.

A. Theft Conviction With respect to his theft conviction on count 3, Anderson argues that because his conviction is not yet final, on appeal he is entitled to have his conviction reduced to a misdemeanor. He argues that, under the Act, the theft he committed is now a misdemeanor and that, under the holding in In re Estrada (1965) 63 Cal.2d 740, 744-745 5 (Estrada), he is entitled to the benefit of that reduction. Estrada held that, in general, a defendant is entitled to any reduction in the penalty for a crime enacted before his conviction is final. The People assert, however, that, under the Act, Anderson's exclusive remedy is to petition for recall of his sentence when his conviction becomes final.

The Act "makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) The Act also added section 1170.18 to the Penal Code, which provides in pertinent part: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing."1 In People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan), the court considered the issue before us and concluded a defendant subject to the Act "is limited to the statutory remedy of petitioning for recall of sentence in the trial court once his judgment is final, pursuant to Penal Code section 1170.18." (Id. at p. 672, citing People v. Yearwood (2013) 213 Cal.App.4th 161, 170, 177 [concluding that an analogous provision of 1 With respect to sentences that have been completed, a defendant may petition the court that imposed the sentence to redesignate the conviction as a misdemeanor. (Pen. Code, § 1170.18, subd. (f).) 6 Proposition 36, the Three Strikes Reform Act of 2012, which created a postconviction resentencing procedure similar to Penal Code section 1170.18 was the "functional equivalent" of a saving clause].) We agree with the conclusion in Noyan. The express provision of a remedy by way of Penal Code section 1170.18 acts as a conditional saving clause and takes the Act outside the general rule set forth in Estrada. Accordingly, Anderson is limited to the statutory remedy of petitioning for recall of sentence under Penal Code section 1170.18. (Noyan, at p. 672.)

B. Enhancement As we have indicated, the trial court imposed prior prison enhancements under Penal Code section 667.5 for two prior second degree burglary convictions, which, under the Act, are now misdemeanors. Anderson contends that, as misdemeanors under the Act, they should not have been used as prior prison enhancements under Penal Code section 667.5. He relies not only on Estrada but also on People v. Flores (1979) 92 Cal.App.3d 461, 471-472 (Flores). Again, we find no error in the trial court's sentencing determination.

The court in People v. Diaz (2015) 238 Cal.App.4th 1323, 1336-1338 (Diaz)

considered the precise argument advanced by Anderson and found that, in light of the Act's stated purposes, no retroactive application of its provisions is appropriate, and further that neither Estrada nor Flores govern application of the Act. In finding that a prior felony conviction could be used as a prior prison enhancement, notwithstanding the fact that it is now a misdemeanor under the Act, the court stated: "Here, the plain 7 language of [Penal Code] section 1170.18 . . . demonstrates that both for persons who are currently serving a sentence for a felony reduced by Proposition 47, and for those who have completed such a sentence, the remedy lies in the first instance by filing a petition to recall (if currently serving the sentence) or an application to redesignate (if the sentence is completed) in the superior court of conviction." (Diaz, at pp. 1331-1332.)

With respect to Estrada, the court stated: "Here, defendant is not appealing from the judgment arising from [his earlier] conviction. That judgment was final long before the operative date of Proposition 47. Thus, the presumption of Estrada does not apply to compel a reduction of his [earlier] conviction to a misdemeanor. Defendant argues that his [earlier] conviction is not final 'in the context of this case,' because it was used to support a [Penal Code] section 667.5, subdivision (b) enhancement that is part of the judgment he is appealing. But that reasoning stretches the Estrada rule to the breaking point. The California Supreme Court has 'emphasized [the] narrowness' of Estrada, and explained that ' "Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation . . . but rather as informing the rule's application in a specific context by articulating the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments. [Citation.]" [Citation.]' [Citation.] As clarified by our Supreme Court, Estrada simply does not apply in the procedural posture of defendant's case."

(Diaz, supra, 238 Cal.App.4th at p. 1336, italics omitted.)

In finding that Flores, which considered application of statutes that decriminalized 8 marijuana possession, did not have any bearing on application of the Act, the court distinguished between the express intent of the earlier marijuana statutes to prevent use of marijuana convictions in future proceedings and the clear intent of the voters in adopting the Act that defendants employ petitions under Penal Code section 1170.18. (Diaz, supra, 238 Cal.App.4th at p. 1335.)

We agree with the reasoning of the court in Diaz. The Act did not provide automatic retroactive relief from a prior conviction. Like the court in Diaz, we express no opinion whether the reasoning in Flores might apply where a prior felony conviction has been reduced to a misdemeanor under Penal Code section 1170.18, subdivision (k).

(See Diaz, supra, 238 Cal.App.4th at p. 1335.)

III

The parties agree that, although he had two prior theft convictions, Anderson served a concurrent term for the two convictions and that, therefore, he had only suffered one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

(See People v. Jones (1998) 63 Cal.App.4th 744, 747.) Because the trial court imposed an enhancement for each one of two the prior convictions, the parties agree that one of the enhancements must be stricken.

DISPOSITION

Anderson's conviction on count 2 is reversed with instructions that it be dismissed, and one of the two enhancements imposed under Penal Code section 667.5 is ordered stricken. The trial court is directed to amend the abstract of judgment accordingly and 9 notify the Department of Corrections and Rehabilitation of the amendment. In all other respects, the judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10

Cites, in this corpus