Filed 4/28/17 P. v. Porreco-Flores CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KIMBERLY ANN PORRECO-FLORES,
Defendant and Appellant.
A149110
(Solano County
Super. Ct. No. FCR305066)
In August 2014, defendant pled no contest to petty theft with a prior felony
conviction. (Pen. Code,1
§§ 484, subd. (a), 666.) Pursuant to the plea agreement,
defendant was later sentenced to a “split” sentence of 16 months, with three months to be
served in county jail and the remaining 13 months to be served under mandatory
supervision with credit for time served of 13 days.
2 Defendant was ordered to make
restitution to the victim, Tesoro Corporation, in the amount of $1,365.57.
After Proposition 47, the Safe Neighborhoods and School Act (Act), codified in
section 1170.18, was enacted, reducing penalties for a number of offenses, defendant

1 All statutory references are to the Penal Code.
2
“A split sentence is a hybrid sentence in which the court suspends execution of a
portion of the term and releases the defendant into the community under the mandatory
supervision of the county probation department. Such sentences are imposed pursuant to
Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part
of the ‘2011 Realignment Legislation addressing public safety.’ ” (People v. Camp
(2015) 233 Cal.App.4th 461, 464, fn. 1.)
2
filed a petition for resentencing.
3
In her petition defendant asserted she was entitled to
have her petty theft with a prior felony conviction reduced to a misdemeanor because had
the Act been in effect at the time she committed her offense, she would have been guilty
of a misdemeanor.
At the hearing on defendant’s petition, she acknowledged the uncontested victim
restitution amount exceeded $950, the threshold for misdemeanor treatment under the
Act. (People v. Sherow (2015) 239 Cal.App.4th 875.) Instead, because defendant was
charged with and pled no contest to petty theft with a prior, her counsel argued, without
citing authority, that “666, by its nature, is under $950 and doesn’t really exist except for
in certain specific situations, to which she doesn’t apply.” In other words, according to
defendant, the “crime presupposes that the value of the property was less than $950.”
The trial court took the matter under submission and subsequently issued a written order
denying defendant’s request to have her felony reduced to a misdemeanor.
Defendant filed a timely appeal challenging the sentence or other matters
occurring after the plea, which includes the trial court’s denial of defendant’s petition for
reclassification under the Act. After counsel was appointed to represent defendant, she
filed a brief setting forth the facts of the case, but advising the court under the authority
of People v. Wende (1979) 25 Cal.3d 43, no issues were found to argue on defendant’s
behalf. Defendant was notified by her counsel she had 30 days to file a supplemental
brief with the court. No supplemental brief has been received.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
examined the entire record for ourselves to see if any arguable issue is present. We
initially note that when the trial judge denied defendant’s petition, he stated in the written
order: “The actual amount of the loss for the theft of which [defendant] was convicted
and found to be jointly and severally liable was $1,365.57. When [defendant] was
sentenced she was ordered to pay that amount of restitution to theft victim Tesoro

3 Because defendant had completed her 16-month sentence by the time her petition
was filed, pursuant to section 1170.18, subdivision (f), the trial court treated it as a
“petition to re-designate” her conviction.
3
Corporation. Consequently, had she committed the act of which she stands convicted
after the passage of Proposition 47, it would not have qualified as petty theft within the
meaning of newly enacted [Penal Code section] 490.2.[4]
Consequently, [defendant] fails
to carry her burden of showing that she is eligible for relief under [Penal Code
section] 1170.18. [Citation.] Plainly and simply, [defendant] would not have been guilty
of a misdemeanor had Proposition 47 been in effect at the time of her offense.” We
concur in the court’s reasoning. Furthermore, we find trial counsel’s unsupported
argument that petty theft with a prior felony conviction by its nature presupposes the
property was less than $950 to be totally lacking in merit.
We also find no meritorious sentencing issues requiring reversal of the judgment.
The record reflects defendant was ably represented by trial counsel. In sum, we agree
with defendant’s counsel that no issues are present undermining defendant’s no contest
plea.
Accordingly, the judgment is affirmed.

4
Section 490.2, added by the Act, provides that a theft crime not exceeding $950
shall be punished as a misdemeanor. (§ 490.2, subd. (a).)
4
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Banke, J.
A149110
People v. Porreco-Flores