Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCS227257, SCD196759, SCN199067, SCN191816, Esteban Hernandez, Judge.
McDONALD, J.
Elizabeth Kelly contends: (1) the trial court erred in imposing increased restitution and parole revocation fines in case Nos. SCN199067, SCD197659, and SCS227257; and (2) we should remand for resentencing because of the Legislature's 2010 enactment of "Chelsea's Law, " which amended Penal Code section 666. We conclude the trial court erred in imposing increased or decreased fines and remand the case for resentencing in accordance with the recent amendment to section 666.
All statutory references are to the Penal Code unless otherwise specified.
In 2005, in case No. SCN191816, Kelly pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and was placed on probation and ordered to pay a $400 restitution fine (§ 1202.4, subd. (b)). Later in 2005, in case No. SCN199067 she pleaded guilty to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and driving under the influence of drugs (Veh. Code, § 23152, subd. (a)), was placed on probation and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)). In 2006, in case No. SCD197659, she pleaded guilty to possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364), was placed on probation and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)). In 2009, in case No. SCS227257, she pleaded guilty to petty theft with one prior (§§ 484/666), was placed on probation and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)).
In 2010, Kelly admitted she violated her probation, probation was revoked and she was sentenced as follows:
Case No. SCS227257, two years in prison with a $400 restitution fine (§ 1202.4, subd. (b)) and a $400 parole revocation fine (§ 1202.45).
Case No. SCD191816, a concurrent term of 16 months in prison with a $300 restitution fine (§ 1202.4, subd. (b)) and $300 parole revocation fine (§ 1202.45).
Case No. SCN199067, a concurrent term of 16 months in prison with a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation fine (§ 1202.45).
Case No. SCD197659, a concurrent term of 16 months in prison with a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation fine (§ 1202.45).
DISCUSSION
Both parties agree we should amend the judgment to reflect the original restitution fines imposed and remand the matter for resentencing because the amendment to section 666 should apply retroactively. However, Kelly contends the People should not be allowed the opportunity to allege and prove additional prior convictions in case No. SCS227257.
A
"[A] restitution fine imposed at the time probation is granted survives the revocation of probation." (People v. Chambers (1998) 65 Cal.App.4th 819, 820.) The trial court was not authorized after revocation of probation to impose a restitution fine different from that imposed when probation was originally granted. Thus, the judgment is amended to reflect the original amount of fines in each case: case No. SCN191816, the fine shall be $400; case No. SCD199067, the fine shall be $200; case No. SCD197569, the fine shall be $200; and case No. SCS227257, the fine shall be $200.
B
The Legislature amended section 666, effective September 9, 2010, to require at least three prior theft-related convictions, not one, to sentence a petty theft conviction as a prison term. Section 666, subdivision (a), states:
"Notwithstanding Section 490, every person who, having been convicted three or more times 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." (§ 666, subd. (a).)
In case No. SCS227257 Kelly pleaded guilty to petty theft with a prior theft-related conviction. Unless enhanced by a prior theft-related conviction, the penalty for petty theft is limited to six months in county jail (Pen. Code, § 490). At the time she pleaded guilty, section 666 permitted a prison sentence for petty theft with one prior theft-related conviction. However, if the amended section 666 is applicable, there must be three prior theft-related convictions to permit a prison sentence for the offense.
Section 3 states the Penal Code is not retroactive unless explicitly stated. In In re Estrada (1965) 63 Cal.2d 740 the California Supreme Court stated section 3 is "not a straitjacket" and should be "applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Id. at p. 746.) That court held a defendant should receive the benefit of an amended statute for a crime committed before the effective date of an amendment if it is effective before the defendant's judgment of conviction becomes final. (Id. at pp. 742, 744, 748.) "[A] judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed." (People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.)
In case No. SCS227257 Kelly was charged with the crime of petty theft in violation of section 484 with the allegations she had previously been convicted of two counts of burglary on December 8, 2004, in San Diego Superior Court case No. C245088 and one count of theft on August 31, 2004, in San Diego Superior Court case No. M921937. However, Kelly has filed an unopposed request for judicial notice of the record in San Diego Superior Court case No. C245088, which we grant. That record shows that in case No. C245088 Kelly was charged with only one count of burglary and one count of theft; she pleaded guilty to the burglary charge and the theft charge was dismissed. Therefore, Kelly's guilty plea in case No. SCS227257 reflected two, not three, prior theft-related convictions and under amended section 666 the prison sentence in case No. SCS227257 was in error.
Here, both parties concede Kelly's appeal was pending when the amendment to section 666 was adopted and Kelly cannot be sentenced in case No. SCS227257 under the amended section 666 to a prison term because the record shows she had only two prior theft-related convictions. Moreover, recently the Fifth Appellate District concluded in People v. Vinson (2011) 193 Cal.App.4th 1190 that the amendment to section 666 was retroactive. We conclude Kelly's sentence is subject to the amendment to section 666 and her sentence must be revised to reflect the punishment imposed for petty theft without an enhancement for prior convictions. We therefore vacate her prior sentence in case No. SCS227257 and remand the matter to the trial court for resentencing.
Kelly contends at resentencing the People should not be allowed to allege prior convictions not alleged and proven in the charging document for case No. SCS227257 to which Kelly pleaded guilty. Even were there three pre-existing priors that qualify under section 666, the People had no burden to prove that three prior convictions existed before section 666 was amended. We conclude the People should be entitled to an opportunity to present any evidence of additional prior theft-related convictions at the resentencing hearing subject, however, to Kelly's right to withdraw the guilty plea based on the prior charging document.
DISPOSITION
The sentence in case No. SCS227257 is vacated and the matter is remanded to the trial court with directions to hold a resentencing hearing in accordance with this opinion. The trial court shall revise the restitution fines as set forth in this opinion.
WE CONCUR: McCONNELL, P.J., IRION, J.