P. v. Regalado

Filed 3/27/06 P. v. Regalado CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT:

Defendant was convicted of one count of felony vandalism. In our opinion filed February 28, 2006, we found the evidence was insufficient to support the felony conviction and, as requested by defendant, modified the judgment to reflect two counts of misdemeanor vandalism. Although we accepted defendant's request and did not analyze the question of whether defendant's felony conviction could be modified to two misdemeanor convictions, the question of a proper remedy was before this court in the original appeal. Defendant cited our case of People v. Navarro (2005) (previously published at 127 Cal.App.4th 159) in his opening brief for the proposition that if we find the evidence insufficient to support his felony conviction we should reduce the felony to two misdemeanor convictions. Although the issue was raised, respondent chose not to weigh in on the question of what the remedy should be if we found the evidence was insufficient to support the felony conviction, but instead argued solely that the evidence was sufficient to support the felony conviction. In his reply brief defendant noted that Navarro had been granted review in the California Supreme Court (No. S132666), but maintained that his felony conviction could be reduced to two misdemeanor convictions. We found the evidence was insufficient to support the felony conviction and reduced the conviction to two misdemeanors as requested by defendant.

Defendant now claims that his request for modification to two misdemeanor convictions was in error and his conviction should have been modified to one misdemeanor conviction. He asks that we grant his petition for rehearing to address this issue. We agree that his request for modification to two misdemeanor convictions was in error and modify the judgment to reflect one misdemeanor vandalism conviction. In reaching this conclusion we distinguish felony vandalism from a single conviction that is comprised of two separate criminal acts, and each criminal act is sufficient to support a separate conviction. For example Penal Code section 209.5, attempted kidnapping in the commission of a carjacking, is comprised of two separate crimes amalgamated into one code section that results in one conviction. Because felony vandalism is not an amalgamation of two separate crimes and two counts of misdemeanor vandalism are not necessarily included in one count of felony vandalism, we agree with defendant that his conviction should be modified to reflect one count of misdemeanor vandalism. We also note that reducing defendant's one felony conviction to two misdemeanor convictions may subject him to an increased penalty of two consecutive one-year sentences in jail as opposed to the possible lower term of 16 months available for a sole felony conviction.

The opinion is modified by deleting lines two through five on page 10 and substituting the following:

The felony vandalism conviction (Pen. Code, § 594, subd. (b)(1)) is reversed and modified to misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A)). The court's order placing defendant on felony probation is vacated and the matter is remanded for purposes of misdemeanor sentencing.

This modification changes the judgment.

Appellant's petition for rehearing is denied.

____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

________________________________

WISEMAN, J.

________________________________

LEVY, J.