Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF10002961 Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Ellise R. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and appellant Kenya Yvette Johnson appeals from her three-year prison sentence after a jury convicted her of petty theft with a prior (Pen. Code, § 666) and found true a prison prior enhancement (§ 667.5, subd. (b)). Johnson argues her sentence should be reduced to six months in county jail because her conviction was not yet final when the recent changes to section 666 went into effect. The People concede that section 666 should be applied retroactively to Johnson’s case, but contend that on remand they should be given the opportunity to plead and prove that Johnson has the additional prior convictions necessary under the new version of the statute to justify the felony petty theft conviction and sentence. As discussed below, we agree that section 666 should be applied retroactively in this case. We order the petty theft with a prior conviction vacated and the matter returned to the trial court for retrial of that charge under the revised section 666.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts and Procedure
On May 29, 2010, Johnson was apprehended after leaving a Wal-Mart store without paying for 15 items. The items were valued at $136.45. Johnson physically resisted being taken into custody by loss prevention, but was eventually arrested by sheriff’s deputies.
The People charged Johnson with robbery (§ 211) and petty theft with a prior (§ 666), and alleged that she had a prior felony prison term (§ 667.5, subd. (b)), after which she did not remain free of prison custody for five years. Johnson admitted the prior prison term allegation. On September 1, 2010, a jury convicted Johnson of petty theft with a prior, but acquitted her of robbery. That same day the trial court sentenced Johnson to two years for the petty theft with a prior plus one year for the prior prison term enhancement. This appeal followed.
Discussion
Effective September 9, 2010, the state Legislature revised section 666 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 [Assem. Bill No. 1844 (2009-2010 Reg. Sess.)].) 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 section 490, which carries a maximum sentence of six months in jail.
Johnson argues on appeal that, although the revised section 666 became effective nine days after she was sentenced, it should apply retroactively to her case because her conviction was not at that time final. The People agree, as do we. We follow the holding in People v. Vinson (2011) 193 Cal.App.4th 1190, which states that the Legislature intended for these revisions, which in effect impose a lighter punishment for defendants with at least one, but fewer than three, theft priors, to be retroactive. The purpose is to lessen the fiscal effects of other portions of Assembly Bill No. 1844, which significantly increase the punishment imposed on defendants convicted of committing sex offenses against minors. (People v. Vinson, supra, at pp. 1196-1197.)
The only issue upon which the parties here disagree is what should be done when this case is remanded to the trial court. Johnson argues the trial court should be instructed to reduce her conviction to misdemeanor petty theft and sentence her under the revised section 666, which would result in a sentence of no longer than six months in county jail. To the contrary, the People assert they should be given the opportunity to plead and prove that Johnson has the three prior theft convictions required for a felony theft conviction under the revised section 666.
The People have the better argument. In People v. Figueroa (1993) 20 Cal.App.4th 65 (Figueroa), after a jury trial, the defendant received a three-year enhancement to his sentence for drug charges because the crime occurred within 1, 000 feet of a school, under Health and Safety Code section 11353.6, subdivision (b). While the defendant’s case was on appeal, that provision was revised to add the condition that the school actually be in session or that minors be using the facility when the offense occurs. The appellate court remanded the case to the trial court with instructions that the People be given the opportunity to prove beyond a reasonable doubt that the drug crimes were committed while school was in session or minors were using the facility. (Figueroa, supra, at p. 71.) The appellate court did this to avoid “reward[ing] [defendant] with a windfall.” (Ibid.)
The Figueroa court addressed any concerns about double jeopardy in allowing the People to plead and prove additional elements: “The issue of whether school was in session or that minors were using the facility during the crime was not relevant at the time of trial and the issue was therefore never tried. (See People v. Garcia (1984) 36 Cal.3d 539, 558, fn. 13....)” (Figueroa, supra, 20 Cal.App.4th at p. 72, fn. 2.) Here, whether Johnson had more than one prior theft conviction was irrelevant to whether she was guilty of petty theft with a prior as the statute was written at the time of trial.
On a similar note, Johnson attempts to distinguish Figueroa by stating, without elaboration, that, at the time of her trial, the law did not render any additional prior theft convictions irrelevant. Johnson points to the Figueroa court’s comment that “[w]here, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper....” (Figueroa, supra, 20 Cal.App.4th at p. 72.) We disagree with Johnson. Under section 666, as written at the time of trial, the People need only have pled and proven one prior theft conviction to qualify the “wobbler” petty theft charge as a felony rather than a misdemeanor. Any additional prior theft convictions would have been irrelevant, as they would not have made the section 666 offense any more a felony or added to her sentence. Thus, we agree with the People that they should be given the opportunity to plead and prove beyond a reasonable doubt any additional prior theft convictions as relevant under the revised section 666.
Disposition
The conviction for petty theft with a prior is vacated. The matter is remanded to the trial court with directions to allow the People to plead and prove the required prior theft convictions under the revised section 666. If the People choose not to do so, the trial court is ordered to resentence Johnson under the revised section 666.
We concur: RICHLI, J., KING, J.