Opinion
E054273 Super.Ct.No. FWV1000437
11-02-2011
In re BONNY SUE HATHAWAY on Habeas Corpus.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Bridgid M. McCann, Judge. Petition granted.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
In this matter, we have reviewed the petition, the informal response, and the reply. Respondent has submitted no objection to our proposed order. Accordingly, we grant relief without issuing a writ of habeas corpus or an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)
In May 2010, petitioner pleaded guilty to one count of petty theft with a prior (Pen. Code, § 666) and admitted a prior prison term enhancement. She was placed on probation.
Probation was terminated on February 15, 2011, and she was sentenced to the low term of one year four months for the Penal Code section 666 conviction, with one year for the prior prison term. Her total term was two years four months, with presentence credit of 176 days.
Effective September 9, 2010, the Legislature revised Penal Code section 666 (Assem. Bill No. 1844 (2009-2010 Reg. Sess.)) to provide that, under most circumstances, a felony conviction for petty theft with a prior requires the People to plead and prove three or more prior theft crimes, rather than just one prior theft crime. (Stats. 2010, Ch. 219, § 15, p. 1025.) The result is that defendants with fewer than three of the specified prior theft crimes can be charged and convicted of only misdemeanor petty theft under Penal Code section 490, which carries a maximum sentence of six months in county jail.
Petitioner contends that the revision should be applied retroactively to her case so that the maximum punishment would be six months and her conviction of a felony must be reversed. We agree and grant the petition for writ of habeas corpus.
Although petitioner has an appeal pending, she seeks habeas corpus relief because she has now served more time than could be imposed under the revised statute.
People v. Vinson (2011) 193 Cal.App.4th 1190, held that the revisions, which in effect impose a lighter punishment for defendants with at least one—but fewer than three—theft priors, must be applied retroactively to a defendant whose conviction was not yet final at the time of its passage.
Respondent contends in its informal response that petitioner's conviction was final before the effective date of the revision so that she is not entitled to retroactive application. Petitioner pleaded guilty on May 21, 2010, and was immediately placed on three year's probation. Respondent points out that petitioner could have appealed from the order granting probation, but did not. Therefore, it concludes that her conviction became final on July 21, 2010, before the effective date of the revision.
Respondent's position controls only in circumstances where the court imposed a prison sentence then suspended execution of the prison sentence and granted probation. In such a case, if the defendant does not challenge the sentence on appeal and it becomes final, the court lacks the power later to reduce the imposed sentence once it revokes probation. (People v. Amons (2005) 125 Cal.App.4th 855, 869.) In Amons, it was held that the Blakely rule did not apply retroactively upon revocation of a defendant's probation because the sentence had been previously imposed but suspended and had become final.
Blakely v. Washington (2004) 542 U.S. 296.
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The situation is distinguishable where the trial court has suspended imposition of sentence. On a later revocation, the court may ultimately select an available sentence option. It would follow that the intervening change in the proscribed punishment should be applied to the sentence that is imposed. (See People v. Howard (1997) 16 Cal.4th 1081.) Here, imposition of petitioner's sentence had been suspended. Therefore, when the court ultimately sentenced her, the revision of Penal Code section 666 had become effective and, unlike Amons, the court should have imposed sentence according to the new statute.
DISPOSITION
The Superior Court of San Bernardino County is directed to vacate petitioner's felony conviction and to enter the conviction as a misdemeanor and conduct further proceedings in accordance with this order.
The request for judicial notice is GRANTED.
KING
Acting P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.