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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

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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.


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                                        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


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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-


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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.




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