Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR922789
Jenkins, J.
This is an appeal from final judgment and sentencing following entry of a no contest plea by appellant Justin Thomas Cordero to petty theft with a prior conviction, a felony violation of Penal Code section 666. This appeal does not challenge the validity of the plea; rather, it is based on grounds occurring after entry of the plea, and is thus authorized by section 1237.5 and California Rules of Court, rule 8.304, subdivision (b)(4). Specifically, appellant contends that he is entitled to the ameliorating benefits of an amended version of section 666 that became effective after his sentencing but before the judgment has become final.
Unless otherwise stated herein, all statutory citations are to the Penal Code.
After receiving briefs from both parties, this court received a letter from the People requesting withdrawal of the sole argument raised in the Respondent’s brief in opposition to appellant’s contention. As such, the People have effectively conceded that appellant’s contention has merit. For reasons explained below, we likewise find merit to this appeal and, thus, vacate the judgment and remand this matter to the trial court with instructions to conduct further proceedings in light of the retroactive operation of section 666, as amended effective September 9, 2010.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed discussion of the facts of this case is not necessary to our resolution of this appeal, given that the People have effectively acquiesced to appellant’s request for relief. Nonetheless, we do set forth certain essential facts to provide the relevant context for our decision.
On June 29, 2010, a complaint was filed alleging that appellant committed residential burglary in violation of section 459 (count one), and petty theft with a prior conviction for grand theft in violation of section 666 (count two). Counts one and two were based upon allegations that appellant entered the residence of the victim, Bonnie Horton, and stole certain of her personal property. The complaint further alleged that appellant had served a prior prison term for grand theft and embezzlement from an elder within the meaning of section 667.5, subdivision (b).
On July 9, 2010, appellant pleaded no contest to count two on the condition that count one would be dismissed. Thereafter, the prosecutor also agreed to dismiss the prior prison term enhancement. There was no agreement or understanding regarding appellant’s sentence.
On August 6, 2010, the trial court sentenced appellant to the upper term of three years for count two. This timely appeal followed on September 24, 2010.
DISCUSSION
As previously stated, the sole contention raised on appeal, which the People have not challenged, is that appellant is entitled to retroactive operation of an amendment to section 666 that took effect on September 9, 2010, after his sentencing but before the judgment has become final.
Specifically, on September 9, 2010, the Governor signed Assembly Bill No. 1844, which, among other things, amended section 666 by limiting the class of defendants subject to punishment under the statute to those who have committed three or more prior qualifying felonies and served a prison term for the offense (with certain exceptions not relevant here). Previously, including at the time appellant committed the crime in this case, section 666 applied to defendants with only one prior qualifying felony.
The amended version of section 666, currently in effect, provides as follows:
The version of section 666 on June 25, 2010 when appellant committed the relevant crime, is as follows:
It is undisputed that, while appellant was sentenced to the three year upper term under the version of section 666 in effect at the time he entered his no contest plea, under the amended version of the statute, he would not be subject to punishment for the crime of petty theft with a prior conviction. Accordingly, we must determine whether appellant is entitled to the benefits of retroactive operation of the amended version of section 666, which became effective before the judgment has become final. As previously mentioned, the People do not dispute that appellant is so entitled, based on the rule announced in In re Estrada (1965) 63 Cal.2d 740 (Estrada). Accordingly, we turn to this California Supreme Court authority.
As described above, the complaint alleged a single prior conviction for grand theft.
Estrada explains that, while it is presumed under common law that the Legislature intends a statute to operate prospectively, this rule of construction should “be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain [another] legislative intent.” (Estrada, supra, 63 Cal.2d at p. 746.) Accordingly, where, as here, a court is called upon to determine whether an amended statute operates prospectively or retroactively, it must attempt to ascertain the legislative intent behind the amended statute based on “all pertinent factors.” (Ibid.)
In Estrada, the defendant, an inmate, was convicted of escape without force or violence in violation of section 4530. (Estrada, supra, 63 Cal.2d at p. 743.) When the defendant committed this crime, section 3044 provided that a person convicted of escape under section 4530 could not be paroled until he or she had served at least two calendar years, calculated from the date of his or her return from prison after an escape conviction. After the defendant committed the crime but before he was sentenced and convicted, sections 3044 and 4530 were amended, such that a person convicted of escape without force or violence could be eligible for parole in less than two years. (Id. at pp. 743-744.) The California Supreme Court held that the amended versions of sections 3044 and 4530 should apply to the defendant because “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.” (Id. at p. 745.)
Here, both parties agree that, under Estrada, the amended version of section 666 would apply to appellant’s case. We likewise agree. Section 666, as amended, represents a legislative decision to mitigate the penalty for commission of the crime of petty theft with a prior conviction by limiting the category of defendants subject to punishment under the statute. As such, the statute falls within the rule of retroactive operation announced in Estrada. (People v. Vieira (2005) 35 Cal.4th 264, 305 [“a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal”]. See also People v. Collins (1978) 21 Cal.3d 208, 212-213 [applying Estrada in a case involving complete decriminalization of certain conduct].) Accordingly, we conclude this matter must be remanded to the trial court for further proceedings in light of the retroactive operation of section 666, as amended effective September 9, 2010. (People v. Collins, supra, 21 Cal.3d at p. 214.)
We note that the judgment in this case was reached pursuant to a negotiated plea bargain wherein appellant pleaded no contest to count two, petty theft with a prior conviction, and count one, residential burglary, was dismissed. No agreement was reached as to sentencing. Generally, in a case such as this, where the Estrada rule requires reversal of a judgment pursuant to a plea bargain, the trial court has authority on remand to reinstate a dismissed count in order to ensure the prosecution is not deprived of one or more of the benefits for which it had bargained. (People v. Collins, supra, 21 Cal.3d at p. 214.) Given the parties’ failure to adequately address this issue in briefing, we leave it to the trial court to decide on remand based on all relevant facts in the record.
DISPOSITION
The judgment is vacated and the matter is remanded to the trial court with instructions to conduct further proceedings as appropriate in light of the retroactive operation of section 666, as amended effective September 9, 2010.
We concur: Pollak, Acting P. J., Siggins, J.
“(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, auto theft..., 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. “(b) Notwithstanding Section 490, any person described in paragraph (1) who, having been convicted of petty theft, grand theft, auto theft... burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. “(1) This subdivision shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. “(2) This subdivision shall not be construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.” (Stats. 2010, ch. 219, s 15 (eff. Sept. 9, 2010, enacting Assem. Bill No. 1844 (2009-2010 Reg. Sess.).)
“ 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.” (Stats. 2000, c. 135, § 134 (eff. January 1, 2001, enacting Assem. Bill No. 2539 (1999-2000 Reg. Sess.).)