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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055957
v. (Super.Ct.No. INF065231)
ALMA ROSA DAVIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of 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
1
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 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).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.
1 All section references are to the Penal Code unless otherwise indicated.
2
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
3
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-
4
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.
5