Filed 12/22/15 P. v. Frausto CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B264147

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA085967)
         v.

DYLAN FRAUSTO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Steven P. Senora, Judge. Reversed and remanded.


         Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for
Defendant and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Defendant Dylan Frausto pleaded “no contest” to one count of grand theft of a
person in violation of Penal Code section 487,1 subdivision (c) on May 21, 2012. He was
initially charged with one count of second degree robbery in violation of section 211. As
part of the plea bargain, he was granted three years’ formal probation under terms and
conditions that included serving 240 days in the county jail. On May 4, 2015, defendant
filed a petition requesting resentencing of his conviction under section 1170.18
(Proposition 47). The trial court denied the petition on the ground that section 487
provides that the theft of personal property of any value from the person of another is
grand theft. (§ 487, subd. (c).)
       The record shows that defendant picked up a flashlight and a small set of tools in a
Wal-Mart store and left the store without paying. He attempted to run when confronted
by security officers, but they managed to restrain him. He was later arrested. The value
of the stolen items totaled $29.92.
       Section 1170.18 provides that “[a] person currently serving a sentence for a
conviction, whether by trial or plea, of a felony or felonies who 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 may petition for a recall of sentence . . . to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.” (§ 1170.18, subd. (a).)
       Section 490.2 provides in pertinent part: “Notwithstanding Section 487 or any
other provision of law defining grand theft, obtaining any property by theft where the
value of the money, labor, real or personal property taken does not exceed nine hundred
fifty dollars ($950) shall be considered petty theft and shall be punished as a
misdemeanor . . . .” (Italics added.)




1      All further references to statutes are to the Penal Code unless stated otherwise.


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       Respondent agrees with defendant that, “pursuant to the plain language of section
490.2, subdivision (a),” defendant is eligible to have his conviction under section 487,
subdivision (c) reduced to a misdemeanor, since the value of the items he stole did not
exceed $950. Under section 1170.18, subdivision (f), defendant is not rendered ineligible
by the fact that he has already completed his sentence. Respondent adds that defendant is
eligible even though his conviction was obtained by plea agreement, citing T.W. v.
Superior Court (2015) 236 Cal.App.4th 646. In that case, the court stated, “section
1170.18 clearly and unambiguously states, ‘A person currently serving a sentence for a
conviction, whether by trial or plea’ of eligible felonies may petition for resentencing to
a misdemeanor. [Citation.] The only persons categorically ineligible are those with prior
convictions for an enumerated handful of serious crimes, such as murder, rape, or child
molestation. [Citations.]. After a petitioner is found to be eligible, the trial court must
grant the petition for reduction of sentence unless the court finds in its discretion that the
petitioner poses an unreasonable risk of committing a very serious crime. [Citation.] The
statute does not otherwise automatically disqualify a petitioner and nothing in section
1170.18 reflects an intent to disqualify a petitioner because the conviction was obtained
by plea agreement.” (T.W. v. Superior Court, at p. 652.)
       We agree with respondent. We recognize that, subsequent to T.W. v. Superior
Court, the court in Harris v. Superior Court (2015) 242 Cal.App.4th 244 (Harris) held
that, under the circumstances of that case, reduction of the plea-bargained felony charge
to a misdemeanor under Proposition 47 would deprive the People of the benefit of the
bargain of its plea agreement. As a result, the People were entitled to withdraw from the
plea and reinstate the previously dismissed charges in accordance with their motion in the
trial court upon the granting of the defendant’s petition. (Harris, at pp. 247, 249.)
       We believe Harris is inapplicable under the circumstances of the instant case.
Like Harris, defendant was initially charged with robbery in violation of section 211.
Harris, however, committed a strong-arm robbery during which he hit the victim.
(Harris, supra, 242 Cal.App.4th at p. 247.) Harris was alleged to have suffered six prior
felony convictions, including a prior conviction for a serious felony under section 667,

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subdivision (a)(1) (a “strike” conviction). (Harris, at p. 247.) Harris obtained a plea
bargain whereby he pleaded guilty to one count of grand theft from a person in order to
avoid another strike conviction. Harris admitted having suffered the prior serious felony
conviction, and the People dismissed the robbery charge and other related allegations.
(Id. at p. 248.)
       Unlike Harris, defendant had no criminal record. And unlike in Harris’s case, the
People filed no motion to withdraw from the plea agreement and reinstate the previously
dismissed charge upon defendant’s filing of his petition under Proposition 47. (Harris,
supra, 242 Cal.App.4th at p. 249.) Also unlike Harris, defendant has completed his
sentence. Harris had not completed the agreed-upon term of six years, which the Harris
court characterized as a “‘fundamental assumption’” of the plea bargain and an integral
part of the bargain contract, resulting in a windfall to Harris. (Id. at p. 250.)
       In the instant case, the People clearly did not believe they had been denied the
benefit of their bargain, and they were not. On appeal, they have conceded defendant’s
eligibility for resentencing. These circumstances and the plain language of section 490.2
indicate that defendant is eligible for resentencing under Proposition 47.
                                       DISPOSITION
       The judgment is reversed, and the matter is remanded for reconsideration of
defendant’s petition.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                            BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




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