Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA083964, Richard R. Romero, Judge.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
A jury convicted appellant James Crowder of second degree commercial burglary under Penal Code section 459 (count 1), two counts of petty theft with a prior theft conviction under section 666 (counts 2 & 4), and misdemeanor possession of an opium pipe under Health and Safety Code section 11364, subdivision (a) (count 5). The trial court found that the alleged prior theft conviction was true with respect to counts 2 and 4.
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to the high term of three years in counts 1, 2, and 4, stating that each term was to be served concurrently to the others for a total of three years in state prison. The trial court then stayed the sentence in count 1 pending completion of the sentence in count 2 with a permanent stay to occur when the sentence in count 2 was fully served. The trial court imposed a concurrent term of six months in count 5, the misdemeanor.
Appellant appeals on the ground that he is entitled to the benefit of the statutory amendment to section 666, which requires reversal of his convictions for petty theft with a prior theft conviction in counts 2 and 4. Respondent concedes that the September 2010 version of section 666 applies to appellant but contends there is no basis to simply reverse the convictions.
FACTS
Prosecution Evidence
A. Counts 1 and 2 (Second Degree Commercial Burglary and Petty Theft)
On October 13, 2009, Signal Hill Police Officer Brian Johnson responded to a Costco store in response to a theft with a suspect in custody. After appellant waived his constitutional rights, appellant told Officer Johnson that he needed to get some razors to clean up for an important job interview. Because he was not a member of Costco, he asked an entering member if he could accompany the member inside, and he did so. Appellant selected the razors and also an X-Men DVD and concealed both items inside a bag he carried. He then walked past the cash registers. After he left the store he was stopped by loss prevention personnel. Appellant was released on his own recognizance due to his “medical issues.”
B. Count 4 (Petty Theft)
On November 14, 2009, an employee at the Top Value Market in Long Beach, Juan Carlos Perez, saw a package of toothpaste fall to the floor as appellant passed him in the aisle. Appellant initially stated the item must have fallen out of his jacket. Then he said, “No, it fell out of my basket.” Appellant was carrying an empty basket. Because appellant’s jacket appeared bulky, Perez asked him to open it. When appellant refused, Perez called security for help. Appellant refused to cooperate with the security officer and became angry. As appellant was being escorted to the back of the store, he and the officer engaged in physical contact. Perez called 911. When the altercation was over, Perez saw various store items on the floor. He recalled a package of meat and the toothpaste. A police officer searched appellant and found a glass pipe that the officer recognized as a pipe commonly used to smoke crack cocaine. Appellant had 57 cents on his person at booking.
Defense Evidence
Appellant testified that he was 53 years old in November 2009 and admitted suffering a 1989 auto burglary conviction. He was a home-care provider for Annette Degrade and expected her to meet him at the Top Value Market on the day of the incident there. He put toothpaste and meat under his shirt as part of a “bad joke” he was going to play on Degrade. Degrade was going to pay for the groceries. Appellant was going to return the meat when the security officer lunged at him and then tackled him. Appellant injured his shoulder and lip. At the time, appellant was on medication for injuries he received in a motorcycle accident.
DISCUSSION
I. Amended Version of Section 666
Appellant contends that, because his case is not yet final, the amendment to section 666, which is analogous to a lessening of punishment, must apply to his case. We agree.
On September 9, 2010, the Legislature passed Assembly Bill No. 1844, which amended, inter alia, section 666. (Stats. 2010, ch. 219, § 15, p. 1122.) When appellant was convicted, petty theft committed by a defendant who had one prior theft-related conviction was an alternate felony-misdemeanor. (Stats. 2000, ch. 135, § 134, p. 1675.) The 2010 amendment to section 666 made petty theft an alternate felony-misdemeanor if the defendant has three prior theft-related felonies. (§ 666, subd. (a).) The effect of the amendment was to make petty theft with only one or two prior theft-related convictions a misdemeanor for most defendants.
The exceptions to the new general rule apply to persons required to register as sex offenders and to those with a prior violent or serious felony conviction (see § 666, subd. (b), (b)(1)), and there is no evidence in the record that appellant falls within these categories.
As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise or an express declaration of retroactivity. (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208–1209.) This principle is codified in section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.) However, the general rule that “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively... is not a straitjacket.... It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada); see also Alford, supra, 42 Cal.4th at p. 753.) Estrada also stated that, “[w]hen 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745; see 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”].)
As appellant points out, there was no evidence, nor was it alleged, that he had more than one prior theft conviction, i.e., a 1989 conviction for auto burglary in violation of section 459. The effect, therefore, of the amendment to section 666 would be to lessen appellant’s punishment by reducing two of his offenses from felonies to misdemeanor petty theft convictions. We conclude that the amendment must be applied retroactively in appellant’s case.
II. Remedy
Respondent points to the mention of two more theft-related arrests in appellant’s probation report and argues that remand for relitigation of the section 666 charge “arguably would not be an idle act.” The probation report lists a 2000 arrest for burglary, but the report states that no record was found of a criminal filing. There was a 1996 arrest for grand theft of money, but there was likewise no record of a criminal filing. We believe that remanding for relitigation of the petty theft with a prior charges in the hopes of finding a prior theft conviction would be a misuse of resources. The People did not previously seek to investigate these prior arrests, and according to the probation report, the list of appellant’s prior convictions was produced after a search of no less than 14 automated data systems.
Respondent also contends that the matter must be remanded for resentencing because of the manner in which the trial court recited the sentence. The original abstract of judgment contained errors that appellant moved to correct in the trial court. The trial court issued an amended abstract on December 10, 2010, a copy of which appellant attached to his brief as an exhibit for the convenience of the court. By its own motion, this court has augmented the record with the December 10, 2010 abstract. This abstract reflects the oral pronouncement of judgment, i.e., a stayed three-year term for the burglary in count 1, a three-year term in count 2 for petty theft with a prior, and a concurrent three-year term in count 4 for petty theft with a prior. According to respondent, the matter must be remanded to the trial court to lift the stay in count 1, and appellant does not oppose remand for this purpose. We agree that remand in this case for resentencing is appropriate.
The second page of the abstract, under “other orders, ” recites the misdemeanor disposition in count 5, stating that appellant was ordered to serve six months in jail concurrently with count 2, and the sentence is to be served in any penal institution.
DISPOSITION
The felony convictions for petty theft with a prior conviction in violation of section 666 in counts 2 and 4 are reduced to misdemeanor petty theft convictions. In all other respects, the judgment is affirmed. The matter is remanded for resentencing in accordance with this opinion.
We concur: DOI TODD, J., CHAVEZ, J.