Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA084609., Joan Comparet-Cassani, Judge.
Stephen M. Hinkle, 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, Senior Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Jennifer St. Dennis was convicted, following a jury trial, of one count of petty theft with a prior theft-related conviction in violation of Penal Code section 666. The trial court sentenced appellant to two years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred prejudicially in informing the jury that she had a prior felony conviction. We see no prejudice to appellant from this error. Appellant also contends that her conviction under section 666 is no longer valid in light of recent amendments to that section which increase to three the number of prior theft-related convictions needed to trigger the felony sentencing provisions of section 666. Respondent concedes that the amendments to section 666 apply retroactively to appellant. We agree. Appellant admitted only one prior qualifying conviction. Accordingly, we reduce her conviction to petty theft in violation of section 484, subdivision (a), a misdemeanor. Because appellant has served more than six months in custody, we direct the trial court to order appellant released on this case only from the custody of the Department of Corrections and Rehabilitation without a period of parole.
Facts
On December 26, 2009, about 5:00 p.m., appellant went to the Rite Aid store in San Pedro. She selected a number of items. Loss prevention agent Aisja Heard saw appellant in the cough and cold aisle. Appellant took a packaged nasal inhaler from a shelf, put it in her mouth and appeared to use her teeth to open the package. She then went to the front of the store, concealing the inhaler in her purse. Appellant paid for a number of items, but not the inhaler.
Heard followed appellant out of the store, identified herself as a loss prevention employee, and told appellant that she needed to return to the store. Appellant started to return to the store, but then turned and walked away from it. Heard grabbed appellant's purse. Appellant pushed Heard. Heard pushed back. Appellant said: "get off me, bitch." The strap on appellant's purse broke.
Appellant got into a car in the parking lot. Heard called the police and took a photo of appellant's car's license plate. Appellant told Heard that she was going to call the police. Heard told appellant that she had already called. Appellant and her companion waited for about fifteen minutes, then drove away.
Some of appellant's activities inside the Rite Aid were recorded by store video cameras. Part of the videos were played for the jury. One segment showed appellant with a package in her mouth. Another showed her at the cash register.
Appellant testified on her own behalf. She acknowledged that she was in the Rite Aid, but denied taking an inhaler. She stated that the item in her mouth was chapstick, which she placed there while adjusting other items in her hands. She went to the front of the store, decided not to get the chapstick, and put it on an end cap. She paid for her purchases and left the store.
As appellant left the store, she was approached by Raymond Baker, who identified himself as a loss prevention officer. Appellant was then "blindsided" by Heard, who grabbed her purse. Heard did not identify herself. The two struggled over the purse, and the purse strap broke. Then, Heard identified herself as a loss prevention officer. Appellant offered to let Baker and Heard search her purse, but they insisted that she return to the store. A third person came up to the group and together with Heard and Baker, tried to force appellant back into the store. Appellant broke away. Heard grabbed appellant's bag of purchases. Appellant went to her car, waited fifteen minutes and drove away. Appellant denied taking any item from Rite Aid that she did not pay for.
Discussion
1. Prior conviction
Appellant contends that the trial court erred prejudicially in informing the jury that she had a prior felony conviction. We agree that the trial court erred, but find the error harmless.
A prior conviction is not an element of section 666. (Peoplev.Bouzas (1991) 53 Cal.3d 467, 473.) It is a sentencing factor. (Id. at p. 480.) Thus, the trial court erred in ruling that appellant's prior conviction was an element of section 666.
Appellant stipulated before trial that she had suffered a prior felony conviction for receiving stolen property. Her attorney asked the court not to mention the prior conviction when reading the information. The court accepted the stipulation, but refused to omit the prior conviction from the reading of the information, on the ground that the prior conviction was an element of the offense.
When a defendant stipulates to a prior conviction, and the conviction is not an element of the offense, the jury should not be permitted to learn of it. (Peoplev.Bouzas, supra, 3 Cal.3d at p. 472.) Specifically, section 1093 provides: "If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed to the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction." (§ 1093, subd. (a).)
The trial court read the information to the jury and told the jury that count 2 of the information alleged that "the crime of petty theft with a prior, in violation of Penal Code section 666, a felony, was committed by Jennifer Lynn St. Dennis." The court added: "It is further alleged that the defendant, Jennifer Lynn St. Dennis, was previously convicted in the state of California of a felony." This was error.
During trial, appellant testified and acknowledged that she had suffered a prior conviction for receiving stolen property and one for drug possession in the same time period. The trial court had ruled before trial that appellant could be impeached with her prior conviction for receiving stolen property if she testified.
At the close of the case, the trial court instructed the jury that "the defendant is accused in count two of having committed the crime of petty theft after she previously had been convicted of a felony in violation of Penal Code section 666, a crime." After instructing the jury on the elements of petty theft, the court told the jury "and if that person previously had been convicted of a certain felony is guilty of the crime of petty theft with a prior conviction in violation of Penal Code section 666. In order to prove this crime, each of the following elements must be proved.... 2. That the person prior to committing the petty theft had been convicted of a certain felony." The prosecutor then informed the court that the court had read the wrong instruction to the jury, since appellant had stipulated to the prior conviction. The court told the jury to disregard the prior instruction. The court then read a new instruction omitting the reference to a petty theft.
We see no reasonable probability that appellant would have received a more favorable verdict in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 835-836.) The jury did not learn any specifics of the crime from the court, which lessens any potential prejudice. The People's case was very strong. Part of appellant's actions were captured on videotape, and Heard, the store's security officer, testified that she saw appellant tear open the inhaler package with her teeth and conceal the inhaler in her purse. It was undisputed that appellant did not pay for an inhaler.
Appellant contends that the People's case was not overwhelming and that she very strongly disputed it. She points to her testimony that the package in question was chapstick, she held it in her mouth only while re-arranging items in her hands and subsequently left the package on an end cap at the front of the store near the cash registers. She also points to her testimony that when Heard and fellow security guard Baker confronted her, she offered to let them search her purse, but they refused. Appellant further points out that although she was charged with robbery in the incident as well as petty theft, she was convicted only of petty theft.
Appellant is correct that her testimony created a dispute in the evidence, and it may have influenced the jury's verdict on the robbery charge. Thus, the People's case is weaker when considered in light of appellant's testimony. Appellant could not present her testimony to the jury without being impeached with her prior conviction, however, including the details of the conviction which were unknown to the jury prior to her testimony. Thus, the jury would have learned of the conviction even in the absence of the trial court's error, and so the trial court's error is harmless for that reason as well.
Appellant contends that there is no way to know if she would have testified if the trial court had not revealed her prior conviction at the beginning of the trial. If appellant had not testified, the case against her would have been very strong, and there would be no reasonable probability of a more favorable outcome.
2. Amendments to section 666
Appellant committed her crime on December 26, 2009, was convicted on July 13, 2010 and was sentenced on July 29, 2010. She filed a notice of appeal. On September 9, 2010, the Legislature passed AB 1844 which amended a number of statutes, including section 666. She contends that this amendment should be applied retroactively to her case because her conviction is not yet final and the amendment lessens the punishment for her crime. Respondent concedes that appellant is correct. We agree that the amendment to section 666 should apply retroactively to appellant.
When appellant was convicted, petty theft committed by a defendant who had one prior theft-related conviction was an alternate felony-misdemeanor. The subsequent amendment to section 666 made petty theft an alternate felony-misdemeanor if a defendant had three prior theft-related felonies. Thus, the effect of the amendments was to make petty theft with one (or two) prior theft-related conviction(s) a misdemeanor.
Generally, "in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatosv.Superior Court (1988) 44 Cal.3d 1188, 1208-1209.)
There is an exception to this general rule in criminal cases. "When 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." (In re Estrada (1965) 63 Cal.2d 740, 745; see People v. Vieira (2005) 35 Cal.4th 264, 305 [defendant generally entitled to benefit from amendments that become effective during his appeal].)
Here, the effect of the amendment to section 666 would be to lessen appellant's punishment by reducing her offense from a felony to a misdemeanor. Thus, the amendment must be applied retroactively.
Respondent contends that on remand the People should be allowed to attempt to prove that appellant has three or more applicable convictions and so felony sentencing under amended section 666 is permissible. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 72, fn. 2 [prosecution allowed to attempt to prove on remand that revised provisions of sentence enhancement apply when applicability of the revisions to the statute were not at issue in original trial and evidence pertaining to the revisions was not relevant in the original trial].)
The People alleged only one prior theft-related felony conviction in the information, and nothing in the record indicates that appellant has suffered any other felony convictions within the meaning of section 666.
Disposition
The conviction of petty theft with a prior conviction, a felony, in violation of Penal Code section 666 is reduced to petty theft, a misdemeanor, in violation of Penal Code section 484, subdivision (a). By stipulation of the parties, the remittitur shall issue in this case 48 hours after the filing of this opinion. Because appellant has served in excess of six months in custody, upon issuance of the remittitur, the trial court shall forthwith order defendant released on this case only from the custody of the Department of Corrections and Rehabilitation without a period of parole.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.