Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF23921, Matias R. Contreras, Judge. (Retired judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
NARES, J.
An Imperial County jury convicted Albert Lopez of petty theft (Pen. Code, § 484, subd. (a)). In a bifurcated trial, the court found true the allegation under section 666 that Lopez had served a prior jail sentence for a theft conviction. The court placed Lopez on probation for three years, on the condition that he submit to warrantless search of his computer and stored information (hereafter referred to as the computer probation condition).
All further statutory references are to the Penal Code.
In support of his appeal in this matter, Lopez originally contended (1) "there was insufficient evidence to support [his] conviction under section 666 of petty theft with a prior because [he] had not served time in a penal institution within the meaning of the statute"; and (2) "the court erred in adopting a probation condition that subjects [him] to warrantless search and seizure of his computer or any location where his data is stored, as this condition is invalid and overbroad, in violation of [his] Fourth Amendment rights."
In his petition for rehearing, which this court granted by order dated April 12, 2011, Lopez contends that his single prior theft conviction "does not meet the amended requirements of section 666, subdivision (a), which now require at least three prior theft convictions." Lopez further contends that the recently amended version of section 666 applies retroactively to his case because the judgment "was not yet final when the amendment to section 666 went into effect."
We conclude Lopez is entitled to the benefit of the amended version of section 666, subdivision (a) (hereafter referred to as section 666(a)), which took effect in September 2010 and applies retroactively here because the judgment in this case is not yet final. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1194 (Vinson), discussed, post.) We also conclude that Lopez's single prior theft-related conviction does not meet the requirements of amended section 666(a), which requires proof of at least three such prior convictions. Accordingly, we reverse Lopez's conviction of a violation of section 666, affirm his current section 484 petty theft conviction, and remand the matter for resentencing. In light of our conclusions, we need not reach Lopez's remaining claim that the court committed sentencing error.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the factual background is brief because many of the facts are not pertinent to the issues raised on appeal.
A. The Current Offense
On May 16, 2009, Luis Arredondo was working as an asset protection associate at Walmart in El Centro. At about 6:30 p.m. Arredondo noticed Lopez and a female companion, Arlene Cuen, enter the store. As Cuen pushed a shopping cart, she and Lopez each selected items and placed them in the cart. Arredondo saw Lopez put a bottle of cologne in his shorts pocket. Lopez and Cuen later brought the shopping cart to a self-checkout station, where Lopez scanned and paid for only some of the merchandise in the shopping cart. As Lopez and Cuen left the store, Arredondo and his assistant manager, Jose Perez, confronted them outside. Arredondo identified himself and asked Lopez and Cuen to return to the store. Lopez refused to return to the store, and left the Walmart parking lot in his vehicle. A police officer conducted a traffic stop of Lopez's vehicle. During the traffic stop, an officer found a bottle of cologne in the vehicle. Officers then arrested Lopez.
B. The Trial Court Proceedings
The court granted Lopez's request for a bifurcated trial on the issues of guilt and the validity of his prior conviction under section 666. The jury found Lopez guilty of petty theft (§ 484, subd. (a)). Lopez waived his right to a jury trial on the prior conviction issue. The court reviewed relevant documents and minute orders and found sufficient proof that Lopez had previously been convicted of grand theft (§ 487, subd. (a)). The documents showed that in November 2008 Lopez pleaded nolo contendere to grand theft (§ 487, subd. (a)), and was later sentenced to three years' probation and 30 days in county jail, with one day of credit for time served. The documents also showed that in February 2009 the court modified Lopez's probation conditions to give him one day in county jail with credit for time served and 360 hours of community service. The court in the present case found sufficient evidence that Lopez had been incarcerated for this prior theft.
C. The Appellate Proceedings
After the parties submitted their initial briefs, this court filed its initial opinion in this matter (People v. Lopez (Mar. 30, 2011, D056633) [nonpub. opn.]), affirming Lopez's conviction under section 666, but concluding that the trial court abused its discretion by imposing the computer probation condition.
After the initial opinion was filed, Lopez petitioned for rehearing, relying on Vinson, supra, 193 Cal.App.4th 1190, for the proposition that amended section 666(a) applies retroactively to any case, such as this one, that is not final.
DISCUSSION
I. SECTION 666
In his rehearing petition, Lopez contends that his single prior theft conviction "does not meet the amended requirements of section 666[(a)], which now require at least three prior theft convictions." Lopez further contends that the amended version of section 666 should apply retroactively to his case because the judgment is not final.
A. Applicable Legal Principles
Section 666 provides enhanced punishment for recidivist thieves. (People v. Bruno (1987) 191 Cal.App.3d 1102, 1107.) At the time Lopez committed his current petty theft offense in May 2009, that section provided:
"Every person who, having been convicted of [a theft-related crime] 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 state prison."
Effective September 9, 2010, Assembly Bill No. 1844 (2009-2010 Reg. Sess.), the Chelsea King Child Predator Prevention Act of 2010 (hereafter Assembly Bill 1844), amended section 666 to provide, in pertinent part:
"Notwithstanding Section 490 [(specifying the punishment for petty theft)], every person who, having been convicted three or more times of [a theft-related crime] 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." (See Vinson, supra, 193 Cal.App.4th at p. 1194, italics added.)
"Assembly Bill 1844's amendment of section 666 had the effect of mitigating punishment by raising the level of recidivism required before a defendant can be sentenced to state prison." (Vinson, supra, 193 Cal.App.4th at p. 1199.)
In Vinson, the Court of Appeal concluded that "[c]learly, new subdivision (a) of section 666 requires proof of at least three prior convictions, not just one." (Vinson, supra, 193 Cal.App.4th at p. 1194.) The Vinson court also concluded that "the amendment to section 666 that became effective on September 9, 2010, applies retroactively" (id. at p. 1193) to convictions that were not final as of that date (id. at p. 1194). For purposes of retroactive application, a judgment is not final until the time for petitioning the United States Supreme Court for a writ of certiorari has passed. (See People v. Vieira (2005) 35 Cal.4th 264, 306.)
B. Analysis
Here, Lopez is entitled to the benefit of the amendment to section 666. Because his conviction is not yet final, it was clearly not final when Assembly Bill 1844 became effective in September 2010.
One element of a violation of section 666, as amended, is that the defendant has previously suffered three or more theft-related convictions. (Vinson, supra, 193 Cal.App.4th at p. 1194.) At trial, the People only pleaded and proved that Lopez had suffered one prior theft-related conviction. Proof of a single prior theft-related conviction does not meet the amended statutory requirement. (Ibid.) The prosecution thus did not meet its burden to prove each element of the crime beyond a reasonable doubt. Therefore, we conclude that Lopez's conviction of a violation of section 666 must be reversed. However, his current conviction for petty theft, which is based on the jury's verdict in this matter, is affirmed. We need not address Lopez's remaining claims of error.
DISPOSITION
Lopez's conviction of a violation of section 666 is reversed. His current conviction for petty theft is affirmed, and the matter is remanded to the trial court for resentencing.
WE CONCUR: McCONNELL, P. J. IRION, J.