Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09NF1162, Richard W. Stanford, Jr., Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Karl T. Terp and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Edward Swisshelm of grand theft (Pen. Code, § 487, subd. (a); all statutory references are to the Penal Code unless noted), driving under the influence (Veh. Code, § 23152, subd. (a)) and with a blood alcohol content greater than.08 percent (Veh. Code, § 23152, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). The Legislature in 2010 amended section 487 to raise the minimum threshold amount to $950. Although the jury convicted Swisshelm in 2009, he contends the amendment applies retroactively. Because the evidence of trial established the value of the stolen property did not exceed $950, Swisshelm asserts we must reduce his conviction to petty theft. The Attorney General concedes the 2010 amendment to section 487 applies retroactively, but argues the prosecution should be given the opportunity to charge Swisshelm with petty theft with priors (§§ 666, 484), assuming he meets the statutory criteria. For the reasons explained below, we agree the amendment to section 487 applies retroactively and remand for the prosecution to elect whether to charge Swisshelm with petty theft with prior theft convictions.
I
Factual and Procedural Background
Babubhai Patel was working at a Brea convenience store on April 9, 2009. Sometime around midnight, Swisshelm entered the store and requested a package of cigarettes. He showed Patel his empty wallet and attempted to trade an Apple brand cell phone for the cigarettes. Patel declined the offer.
Later, Samuel Ilten, entered the store and asked Patel if had seen an Apple iPhone he had mistakenly left on the store’s counter around 10:00 p.m. that evening. Patel told him about Swisshelm, and Ilten phoned the police.
Swisshelm drove up about the same time a police officer arrived on the scene. Ilten spoke to the officer outside the store, and Swisshelm emerged from his vehicle. Patel came outside and identified Swisshelm.
The officer asked Swisshelm about the iPhone. Smelling of alcohol, and displaying symptoms of intoxication, including staggering, watery eyes, slurred and rapid speech, and agitation, Swisshelm initially denied having Ilten’s cell phone. Another officer assisting the investigation asked Ilten to dial his cell number, and when Ilten complied, they heard it ringing on the dashboard of Swisshelm’s car. During a rambling and frequently nonsensical conversation, Swisshelm suggested Patel had urged him to take the phone to help find its owner.
Ilten’s mother Susan testified she purchased the iPhone new the previous December for $438. A receipt reflected the total included the service plan, accessories, and sales tax, and the phone itself cost $299. According to Susan Ilten, the phone would have cost $700 without a service agreement.
Swisshelm performed poorly on some field sobriety tests and refused others. His blood alcohol concentration was.22 percent not long after his arrest. The parties stipulated Swisshelm’s driver’s license was suspended or revoked at the time of the incident.
Following a trial in November 2009, a jury convicted Swisshelm as noted above. Swisshelm admitted he had suffered a felony conviction for driving under the influence in 2002. The trial court sentenced Swisshelm to a three-year prison term, comprised of the aggravated three-year term for felony driving under the influence, a concurrent 16-month mitigated term for grand theft, and no additional custody time for the misdemeanor driving on a suspended or revoked license.
II
Discussion
Swisshelm’s Conviction for Grand Theft Must Be Reversed
In his opening brief, Swisshelm challenges the sufficiency of the evidence the phone had a fair market value of more than $400 at the time of the theft. He also argues the trial court erred in admitting over objection Susan’s testimony concerning the value of the phone (Evid. Code, §§ 813, 1200), and committed related instructional error.
Swisshelm also argues he was entitled to additional presentence conduct credit under amended section 4019 (effective January 25, 2010). He also filed a petition for writ of habeas corpus concerning this claim, and in a prior opinion we granted Swisshelm the additional credit he sought.
After Swisshelm’s conviction, the Legislature amended section 487, subdivision (a), to define grand theft as a theft of property valued at more than $950. (Stats. 2010, ch. 693, § 1 (A.B. 2372).) In a supplemental brief, Swisshelm contends the amendment applies retroactively to his case, and his conviction for grand theft should be reduced to petty theft.
The Attorney General agrees the amended statute applies retroactively, but responds the prosecution should be given an opportunity to charge the case as if the new version of section 487 had been in effect at the time of trial, which would allow the prosecution to charge Swisshelm with petty theft with priors (§§ 666, 484) if such convictions exist.
“When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) Under Estrada, the “amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date.” (People v. Floyd (2003) 31 Cal.4th 179, 184 (Floyd); Estrada, at p. 744.)
In People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga), the court retroactively applied a revised threshold for imposition of a sentence enhancement under section 12022.6, subdivisions (a) and (b). Legislation increased the property loss required for a one-year enhancement from $25,000 to $50,000, and the loss required for a two-year enhancement from $100,000 to $150,000. The defendant in that case stole $124,000 before the Legislature amended section 12022.6, and her conviction was not final when the amendment became operative. Relying on Estrada, the court held the defendant was entitled to the benefit of the 1992 amendment, making her eligible only for the one-year enhancement. The court observed, “[C]ourts have held that amendments, such as the one at issue here, that mitigate punishment by increasing the dollar amount for certain crimes or enhancements, should be applied retroactively, in the absence of a saving clause or other indicia of a contrary legislative intent. [Citations.]” (Nasalga, at p. 793, italics added.)
Here, the 2010 amendment to section 487 does not contain a savings clause, although the Legislature applied a savings clause when it amended section 487 in 1982. (Stats. 1982, ch. 935 [“the changes in monetary limits... shall apply only to offenses committed on or after January 1, 1983. It is the intent of the Legislature that the changes in these bills be given no retroactive effect”]; see Floyd, supra, 31 Cal.4th at p. 182 [Legislature expressly stated act’s provisions were to be applied prospectively]).) The legislative history reflects the Legislature increased the amount to account for the effects of inflation, to conform the threshold in the grand theft section to other property crime sections, and to save the state money from the anticipated reduction in prison commitments. (See Assem. Com. on Public Safety, Analysis of Assem. Bill 2372 (2009-2010 Reg. Sess.) as amended March 11, 2010, pp. 2-3.) As in Nasalga, nothing in the legislative history demonstrates an intent to punish more harshly persons whose theft occurred before the amendments than others whose thefts of the same amounts occurred after the amendments. (Nasalga, supra, 12 Cal.4th at p. 795.) We therefore adhere to Estrada’s well-established principle that the amendatory statute effectively mitigating punishment operates retroactively. (Nasalga, at pp. 797–798; see People v. Vinson (2011) 193 Cal.App.4th 1190 [amendment to section 666 (petty theft with a prior) requiring proof of at least three prior convictions rather than one applied retroactively]; People v. Figueroa (1993) 20 Cal.App.4th 65 (Figueroa) [defendant who suffered enhancement for selling drugs within 1, 000 feet of a school entitled to benefit of amendment requiring school be in session].)
Finally, we agree with the Attorney General the prosecution has the right to try Swisshelm for petty theft with a prior if it so elects. As explained in Figueroa, “To say that appellant is now free of the enhancement would be to reward him with a windfall. The People are entitled to an opportunity to prove beyond a reasonable doubt that, when the crime was committed, the school was in session or was being used by minors.” (Figueroa, supra, 20 Cal.App.4th at p. 71.) We agree a similar analysis applies here. The prosecution may have charged grand theft (§ 487) in lieu of petty theft with priors (§§ 484, 666) because at the time of trial section 487 established only a $400 threshold. As explained in Figueroa, allowing the prosecution an opportunity to establish an additional element in light of a legislative amendment is neither an ex post facto application of a statute, nor barred by the double jeopardy clause. (Figueroa, at pp. 71-72, & fn. 2.)
III
Disposition
The judgment is reversed and remanded for the prosecution to determine whether to charge the defendant for petty theft with prior convictions. If the prosecution does not elect to try that charge, the court shall reduce the section 487 count to a misdemeanor conviction (§ 484) and resentence defendant.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.