P. v. >Davis>

 

 

 

 

 

 

 

 

 

 

 

Filed 7/3/13  P. v. Davis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   ALMA ROSA DAVIS,               Defendant and Appellant.

E055957               (Super.Ct.No. INF065231)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  James S.
Hawkins, Judge.  Affirmed with
directions.

            Mark
D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Alma Rosa Davis argues, and the People agree, that her felony petty theft
conviction should be reduced to a misdemeanor because the law changed before
her conviction became final.  As
discussed below, we modify the judgment to reflect that the petty theft
conviction is a misdemeanor, vacate the sentence as to that conviction, and
remand to the trial court with directions to resentence defendant as to the href="http://www.fearnotlaw.com/">petty theft conviction only.

>Facts
and Procedure

            On
March 29, 2009, appellant
shoplifted a number of items from a Wal-Mart store.  She had a previous conviction for petty theft
(Pen Code, § 484).href="#_ftn1" name="_ftnref1"
title="">^[1]

            On
July 14, 2009, the People
charged defendant in count one with felony petty theft (§ 484), along with an
allegation that she had committed a prior theft-related offense (§ 666), and in
count two with second-degree burglary (§ 459). 
The People also alleged defendant had three prison term priors (§ 667.5,
subd. (b)).

            On
January 21, 2010, a jury
found defendant guilty on both counts and, as to count one, found that
defendant had been convicted of a prior petty theft.  Defendant experienced some medical issues
that delayed sentencing for two years. 
On March 23, 2012,
the trial court found the three prison term priors to be true.  Also on March 23, 2012, the court sentenced defendant to five
years as follows:  the upper term of
three years for the burglary, two years consecutive on the felony petty theft,
stayed pursuant to section 654, plus two years consecutive for the prior prison
terms.  Pursuant to Realignment, the
court ordered defendant to serve two and one-half years in custody and two and
one-half years on supervised release. 
This appeal followed.

>Discussion


At the time of the
alleged offenses, and at the time of trial, section 666 provided: “Every person
who, having been convicted of petty theft, grand theft,
auto theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496 and having served a term therefor
in any penal institution or having been imprisoned therein as a condition of
probation for that offense, is subsequently convicted of petty
theft, then the person convicted of that subsequent offense is
punishable by imprisonment in the county jail not exceeding one year, or in the
state prison.”  That is, a petty theft conviction, normally a misdemeanor, could be
treated as a felony if the accused had previously been convicted of one of the
specified theft-related offenses.

Effective in
urgency legislation in September 2010, the Legislature amended section 666 to
provide that, “every person who, having been convicted three or more
times of [specified theft crimes] . . . and having
served a term therefor in any penal institution or having been imprisoned
therein as a condition of probation for that offense, is subsequently convicted
of petty theft, then the person convicted of that
subsequent offense is punishable by imprisonment in the county jail not
exceeding one year, or in the state prison.” 
(See Assem. Bill No. 1844 (2009-2010 Reg.
Sess.), italics added.)  Thus, the
amended version requires three qualifying prior convictions to be eligible for
felony treatment.

In >People v. Vinson (2011) 193 Cal.App.4th
1190 (Vinson), the Court of Appeal
considered whether the amendment should be applied retroactively to cases not
yet final at the time of the amendment. 
The general rule is that statutory amendments are not retroactive,
unless expressly so stated by the Legislature. 
An exception exists, however, under In
re Estrada (1965) 63 Cal.2d 740, 744-745, when an amendment has the effect
of mitigating the punishment.  When the
amendment has such an ameliorative effect, then it is applied retroactively to
all convictions not yet final on the effective date of the amendment.

Here, as in Vinson,
the parties agree that defendant’s conviction was not yet final at the
effective date of the amendment to section 666. 
(See Vinson, supra, 193
Cal.App.4th at p. 1194.)  The legislative
history of the amendment showed that it was part of a larger scheme to increase
punishment for various sex offenses, but the amendment to section 666 was added
to permit the Department of Corrections and Rehabilitation “to offset the new
costs created by Assembly Bill 1844 by avoiding the costs of imprisonment
associated with a particular class of offenders—those with fewer than three
prior convictions for qualifying offenses. 
[Citation.]”  (>Vinson, at p. 1197.)  Thus, although the punishment imposed for a
violation of section 666 remained the same (felony-eligible), the requirements
for making the offense felony-eligible were changed.  “In other words, both versions of the statute
describe a ‘wobbler’—an offense that is punishable either as a misdemeanor or
as a felony.  To be eligible for felony
sentencing under section 666 as amended, however, it is no longer enough that
the defendant previously have been  convicted of a single specified
theft-related conviction.  Instead, three
or more such qualifying convictions are now required.  This change to section 666’s sentencing
factor [citation] is akin to adding an element to a crime or an enhancement,
and benefits a defendant by making it less likely that he or she will qualify
for felony-level punishment. 
Accordingly, Estrada’s reasoning applies.  [Citation.]” 
(Vinson, at pp. 1197-1198.)

Defendant
contends, and the People concede, that Vinson applies, and defendant here
should receive the benefit of the retroactive application of the statute.  They agree, as does this court, that
defendant is entitled to have the petty theft conviction reduced to a
misdemeanor.

Disposition

We modify the
judgment to reflect that the petty theft conviction in count one is a
misdemeanor rather than a felony and vacate the sentence imposed for that
count.  We remand the matter to the trial
court with directions to resentence defendant as to count one only and to
forward a corrected abstract of judgment to the Riverside County Sheriff’s
Department.  The judgment is affirmed in
all other respects.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ                             

                                                P. J.

 

 

We concur:

 

KING                                     

                                             J.

 

CODRINGTON                    

                                             J.