Filed 7/7/17 P. v. Thompson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN PAUL THOMPSON,

Defendant and Appellant.


E066245

(Super.Ct.Nos. INF055588 &
INF057293)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed 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, and Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Kevin Paul Thompson, filed petitions for resentencing pursuant to Penal Code section 1170.18 in two separate cases, Riverside County Superior Court case Nos. INF055588 and INF057293. The court granted both petitions in part and denied them in part.
On appeal, defendant contends the court erred in denying his request for resentencing in case No. INF057293 as to counts 1 and 3. Defendant additionally contends the court erred in neglecting to recalculate defendant’s custody credits when it reduced some of defendant’s convictions to misdemeanors. The People agree with the latter contention and note that the matter must be remanded so that the court can impose sentence on the counts it reduced to misdemeanors. We reverse and remand for resentencing.
I. PROCEDURAL BACKGROUND
On May 21, 2008, the People charged defendant by felony information in case No. INF055588 with first degree burglary (count 1; § 459), vehicular burglary (count 2; § 459), and receiving stolen property (count 3; § 496, subd. (a)). The People additionally alleged defendant had suffered two prior strike convictions (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and one prior serious felony (§ 667, subd. (a)). On the same date, the People charged defendant by felony information in case No. INF057293 with first degree burglary (count 1; § 459), two counts of receiving stolen property (counts 2 & 4; § 496, subd. (a)), second degree burglary (count 3; § 459), and two misdemeanor counts of fraudulent use of an access card (counts 5 & 6; § 484g, subd. (a)). The People additionally alleged defendant had suffered two prior strike convictions. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
On December 28, 2010, the court granted defendant’s Romero motion, striking one of defendant’s strikes in both cases. On the same day, defendant entered guilty pleas to the court on all counts and the remaining allegations in both cases. As the factual bases for the plea, defendant admitted, in case No INF055588, that he had unlawfully entered a garage with the intent to commit theft (count 1), that he entered a locked Chevy Suburban with the intent to commit theft (count 2), and that he had in his possession property belonging to another person which was obtained by theft (count 3). In case No. INF057293, defendant admitted he entered a Target store on two occasions with the intent to commit thefts (counts 1 & 3) and possessed property he knew to be stolen (counts 2 & 4).
The court’s grant of defendant’s Romero motion appears to have been one of the bases for defendant’s plea to the court. The court noted in striking one of defendant’s prior strikes in each of defendant’s cases: “I also think that the punishment this defendant is going to receive is going to be more than sufficient as it relates to punishment for his current [felony] conduct . . . .” Before taking the plea, the court informed defendant that the plea was “with the understanding you are going to receive a significant amount of time in state prison.” When sentencing defendant in case No. INF055588, the court noted it was imposing the upper term on count 1 “because of the court striking the strikes priors, but with the intent to make sure that the punishment given to this defendant is significant.”
The court sentenced defendant to an aggregate term of 18 years four months in case No. INF055588, consisting of the following: six years doubled to 12 years due to the prior strike conviction on count 1; one-third the midterm of 24 months (eight months), doubled to 16 months due to the prior strike conviction on count 2; the midterm of two years on count 3, stayed pursuant to section 654; and a consecutive five years on the prior serious felony conviction enhancement. The court imposed a consecutive, aggregate sentence of two years eight months in case No. INF057293, consisting of the following: the midterm of 16 months on count 1; the midterm of two years, stayed pursuant to section 654, on count 2; 16 months on count 3; two years, stayed pursuant to section 654, on count 4; and 180 days in jail on counts 5 and 6. On January 28, 2011, the court awarded defendant a total of 2,155 days of custody credit.
On May 25, 2015, defendant filed a petition for resentencing pursuant to section 1170.18 in case No. INF057293. On August 18, 2015, defendant filed a petition for resentencing pursuant to section 1170.18 in case No. INF055588. On August 21, 2015, the People filed a response to the petition in case No. INF057293; the People maintained defendant was ineligible for resentencing on counts 5 and 6, because they were already misdemeanors and that a hearing should be set to determine the value of the property taken in counts 1 through 3.
On August 21, 2015, the court denied defendant’s petition in case No. INF057293. The court found defendant’s misdemeanor convictions in counts 5 and 6 did not qualify for reduction. The court denied defendant’s petition as to counts 1 and 3 noting that the burglaries were not of commercial establishments as the police report reflected defendant had broken into hotel rooms. The court found, apparently on the basis of the police report, that the losses in counts 2 and 4 exceeded $950. The court noted that if defendant had evidence to refute the court’s findings with regard to the amount of the stolen property, the matter could be set on calendar.
On October 19, 2015, defendant filed another petition for resentencing in case No. INF057293 averring that the burglaries were from a commercial establishment, not from a hotel. In the People’s response to defendant’s petition in case No. INF055588, dated October 26, 2015, but not filed until December 29, 2015, the People maintained defendant was ineligible for resentencing on any counts. Even if eligible, the People argued the court should find defendant a danger to society.
After numerous continuances, the court held a hearing on the petition in case No. INF055588 on May 27, 2016. The court found defendant ineligible for resentencing on counts 1 and 2. The court continued the matter.
On June 3, 2016, the court held the final hearing on both petitions. Defense counsel submitted on the court’s tentative ruling regarding counts 1 and 2 of case No. INF055588. The court denied the petition as to counts 1 and 2, but granted it as to count 3. As to case No. INF057293, the court granted the petition with respect to counts 2 and 4, but denied it as to the remaining counts. The court found defendant had used a stolen credit card to purchase goods in the amount of $392.18 in count 2; the court found defendant had used a stolen credit card to purchase goods in the amount of $184.03 in count 4. The court denied the petition as to counts 1 and 3 because it found defendant’s intent in receiving the stolen credit cards was to commit identity theft.
II. DISCUSSION
A. Counts 1 and 3 in Case No. INF057293
Defendant contends the court erred in determining he was ineligible for relief with respect to counts 1 and 3 because he was not charged or found guilty of identity theft. Regardless, defendant maintains his convictions for felony second degree burglary render him eligible for resentencing to misdemeanor shoplifting as a matter of law. The People maintain defendant’s use of credit cards to purchase items does not meet the legal definition of shoplifting; therefore, defendant is ineligible for resentencing on counts 1 and 3 to misdemeanor shoplifting. The People further assert that defendant’s intent to commit identity theft additionally renders him ineligible for resentencing.
“In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. [Citation.] The Act also added several new provisions, including Penal Code section 459.5, which created the crime of shoplifting. Subdivision (a) of section 459.5 provides: ‘Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.’ Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. [Citation.] Section 459.5, subdivision (b) contains an explicit limitation on charging: ‘Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.’” (Gonzales, supra, 2 Cal.5th at p. 863, fn. omitted.)
“A defendant may be eligible for misdemeanor resentencing under section 1170.18 if he ‘would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense . . . .’ [Citation.] Under section 459.5, shoplifting is a misdemeanor unless the defendant has suffered a disqualifying prior conviction. [Citation.] [¶] To be eligible for resentencing, defendant must demonstrate that his crime would have been a misdemeanor if the Act was in effect when he committed the offense.” (Gonzales, supra, 2 Cal.5th at p. 875.)
In response to the People’s argument in Gonzales that “even if defendant engaged in shoplifting, he is still not eligible for resentencing because he also entered the bank intending to commit identity theft” (Gonzales, supra, 2 Cal.5th at p. 876), the court concluded that “the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft . . . because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950.” (Id. at pp. 876-877; accord, People v. Abarca (2016) 2 Cal.App.5th 475, 483, review granted Oct. 19, 2016, S237106 [forgery relating to a check where the value of the check does not exceed $950 is punishable as misdemeanor shoplifting].) Thus, regardless of whether defendant entered the store with the intent to commit identity theft, his commission of the offense of attempting to purchase goods valued at less than $950 with stolen credit cards rendered him per se eligible for resentencing. Therefore, the court erred in denying defendant’s request for resentencing on counts 1 and 3.
B. Resentencing and Credit Calculation
Defendant contends that since the court modified his judgment, it was required to recalculate his presentence custody award. Thus, upon remand, the court must calculate and award defendant custody credits for the actual number of days defendant spent incarcerated prior to the court’s modification of judgment. The People concede the issue. The People also maintain the court must impose sentence on the counts which it reduced to misdemeanors. We agree with both parties.
A trial court, which modifies a defendant’s sentence is obliged, in its new abstract of judgment, to credit the defendant with all the actual days he spent in custody, whether in jail or prison, up to that time. (See People v. Buckhalter (2001) 26 Cal.4th 20, 23, 37.) “Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently . . . modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (§ 2900.1.) If a court finds a defendant eligible for resentencing pursuant to section 1170.18, it shall recall defendant’s felony sentence and resentence the defendant. (§ 1170.18, subd. (b).)
Here, the court must award defendant custody credits for all the actual days he has spent incarcerated. Additionally, the court must resentence defendant on all counts which it has reduced from felonies to misdemeanors.
III. DISPOSITION
The judgment is reversed and remanded for reduction and resentencing on counts 1 and 3 in case No. INF057293. On remand the court must award defendant custody credits for all the actual days he has spent incarcerated in both cases. Additionally, the court shall resentence defendant on all counts, in both cases, in which the court reduced defendant’s convictions from felonies to misdemeanors. Furthermore the court shall issue modified abstracts of judgment which reflect these changes and forward copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

MILLER
J.