Filed 9/25/17 P. v. Crabb CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis, Judge.

Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Robert Dale Crabb appeals a 2015 order from the superior court that resentenced his prior conviction for petty theft (Pen. Code, § 666)[1] to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47) (§ 1170.18). The parties agree, as do we, that the superior court improperly resentenced appellant on this conviction. Apparently unbeknownst to the superior court, this court had already reversed this same conviction on appeal in 1997. (People v. Crabb (Aug. 5, 1997, F024598) [nonpub. opn.] (Crabb).)[2]

Appellant argues he is entitled to a new resentencing hearing. We disagree. He does not qualify for resentencing under Proposition 47. We reverse the superior court’s order and set aside the resentencing proceeding. We otherwise affirm appellant’s judgment.

BACKGROUND

Because the facts supporting appellant’s underlying convictions are irrelevant to the present appeal, we only briefly summarize them here. In March 1995, two loss prevention agents at a supermarket in Bakersfield observed appellant and his wife leave the store without paying for some meat. When the agents approached them outside in the parking lot, appellant physically resisted them, including pointing a knife at one agent. Appellant fled in an automobile. (Crabb, supra, F024598, at pp. 2-4.)

In 1995, a jury convicted appellant in Kern County Superior Court case number SC062306A (the “Underlying Matter”) of assault with a deadly weapon (§ 245, subd. (a)(1); count 1), theft (§ 666; count 2), and second degree robbery (§ 212.5; count 3). The jury found that appellant personally used a knife in committing the assault (§ 12022, subd. (b); count 1). Appellant admitted prior felony convictions and a prior prison term. The trial court sentenced him to 25 years to life with the possibility of parole for count 3. Unspecified terms were imposed in counts 1 and 2, including a one-year enhancement to count 1, which were stayed pursuant to section 654.

In August 1997, this court reversed appellant’s conviction for petty theft in count 2. (Crabb, supra, F024598, at p. 30.) We determined that the conviction for petty theft was a necessarily lesser included offense of robbery. (Id. at pp. 14-15.) We directed the superior court clerk to issue an amended abstract of judgment reflecting reversal of count 2 (and the stay of the one-year enhancement for count 1), and to transmit a certified copy of the amended abstract to the appropriate authorities. (Id. at p. 30.)

In June 2015, appellant, appearing in propria persona, filed a notice of motion in the superior court for resentencing pursuant to Proposition 47. Appellant requested a hearing, contending he should be resentenced because he had been convicted of petty theft, assault, and second degree robbery all stemming from a single event. Filed with appellant’s motion was a copy of the original abstract of judgment showing his indeterminate sentence for the robbery conviction in count 3, and his conviction in count 2 for petty theft with priors. Appellant’s motion, however, failed to alert the trial court that his conviction in count 2 had been reversed on appeal in 1997.

In June 2015, the prosecution filed a response to appellant’s petition, offering no objection to resentencing on count 2. The prosecution’s response also did not mention that appellant’s conviction in count 2 had already been reversed on appeal. The prosecution’s response, however, asserted that appellant was not eligible for resentencing under Proposition 47 for counts 1 and 3.

On July 10, 2015, the superior court heard appellant’s motion for resentencing. Appellant was not present and no counsel appeared for him. The prosecutor represented that appellant would qualify for resentencing as to count 2, but his “ultimate sentence” should remain the same.

As reflected in a minute order dated July 10, 2015, the superior court granted appellant’s petition as to count 2 pursuant to section 1170.18. The superior court reduced count 2 to a misdemeanor. Probation was denied and appellant was sentenced to serve a year in custody. As is reflected in the reporter’s transcript of the hearing, the superior court credited appellant in count 2 for time served and appellant was ordered released as to count 2 only. All other terms and conditions of the sentence were ordered to remain in effect, leaving a sentence of 25 years to life plus one year on count 3.

DISCUSSION

The parties agree that the superior court’s modified sentence imposed on July 10, 2015, on count 2 is void and has no effect. The parties, however, disagree regarding the appropriate remedy. Appellant asserts he is entitled to a new sentencing hearing. He contends his fundamental constitutional rights were violated when the superior court resentenced him without his presence and without appointing counsel. In contrast, respondent maintains that no new sentencing hearing is required because “nothing has changed” following this court’s reversal of count 2 on appeal in 1997. Respondent further argues that appellant does not meet the criteria for resentencing under section 1170.18. We disagree with appellant that he is entitled to a new sentencing hearing.

“When California voters approved Proposition 47, they enacted statutory provisions with the purpose of reducing punishment for a broad range of crimes previously classified as felonies.” (People v. Romanowski (2017) 2 Cal.5th 903, 905.) “[A]fter passage of Proposition 47, ‘obtaining any property by theft’ constitutes petty theft if the stolen property is worth less than $ 950.” (People v. Romanowski, supra, 2 Cal.5th at p. 908, fn. omitted.)

Under Proposition 47, a person currently serving a sentence for a felony conviction may petition for a recall of sentence and request resentencing if a conviction would have been a misdemeanor at the time of the offense. (§ 1170.18, subd. (a).) The petitioner bears the initial burden of establishing eligibility for resentencing under Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) A conviction under section 666 (petty theft) qualifies for resentencing under Proposition 47; however, Proposition 47 does not permit resentencing for assault with a deadly weapon (§ 245, subd. (a)(1)) or second degree robbery (§ 212.5). (§ 1170.18, subd. (a).)

Here, appellant is currently serving an indeterminate sentence of 25 years to life for conviction of second degree robbery (§ 212.5, subd. (c)). His conviction for petty theft (§ 666; count 2) was reversed by this court in 1997. (Crabb, supra, F024598, at p. 30.) Because his petty theft conviction was reversed, appellant does not qualify for resentencing under Proposition 47. (See § 1170.18, subd. (a).) We agree with the parties that the trial court improperly resentenced this conviction in 2015.

An appellate court has authority to modify a superior court’s unauthorized sentence. (People v. Thomas (2012) 53 Cal.4th 771, 837.) Pursuant to section 1260, an appellate court may reverse, affirm, or modify an order appealed from, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such order as may be just under the circumstances.

Here, because appellant was not qualified for resentencing under Proposition 47, we set aside the July 10, 2015 resentencing proceeding in its entirety, including the superior court’s order dated July 10, 2015, which has no effect. This court’s 1997 opinion remains in effect regarding reversal of appellant’s conviction for petty theft in count 2. (Crabb, supra, F024598, at p. 30.)[3]

DISPOSITION

The July 10, 2015 resentencing proceeding is set aside in its entirety, including the superior court’s order dated July 10, 2015, which has no effect. As stated in the disposition in Crabb, supra, F024598, filed on August 5, 1997, the judgment of conviction for petty theft in count 2 is reversed, and in all other respects, the judgment is affirmed. We direct the clerk of the superior court to modify its July 10, 2015 minute order consistent with this opinion.

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LEVY, Acting P.J.

WE CONCUR:

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DETJEN, J.

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MEEHAN, J.