1 Filed 7/3/13 P. v. Davis CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ALMA ROSA DAVIS, Defendant and Appellant. E055957 (Super.Ct.No. INF065231) OPINION

APPEAL from the Superior Court of Rivers ide County. James S. Hawkins, Judge. Affirmed with directions. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, William M. Wood and Kathryn Kirschbaum, Deputy Attorneys Genera l, for Plaintiff and Respondent. Defendant Alma Rosa Davis argues, and th e People agree, that her felony petty theft conviction should be reduced to a misd emeanor because the law changed before her2 conviction became final. As di scussed below, we modify the judgment to reflect that the petty theft conviction is a mi sdemeanor, vacate the sentence as to that conviction, and remand to the trial court with directions to resentence defendant as to the petty theft conviction only. F ACTS AND P ROCEDURE On March 29, 2009, appellant shoplifte d a number of items from a Wal-Mart store. She had a previous conviction for petty theft (Pen Code, § 484). 1 On July 14, 2009, the People charged defendant in count one with felony petty theft (§ 484), along with an a llegation that she had committed a prior theft-related offense (§ 666), and in count two w ith second-degree burglary (§ 459). The People also alleged defendant had three prison term pr iors (§ 667.5, subd. (b)). On January 21, 2010, a jury found defendant guilty on bo th counts and, as to count one, found that defendant ha d been convicted of a prio r petty theft. Defendant experienced some medical issues that delaye d sentencing for two years. On March 23, 2012, the trial court found the three prison te rm priors to be true. Also on March 23, 2012, the court sentenced defendant to five y ears as follows: the upper term of three years for the burglary, two years consecutive on the felony petty theft, stayed pursuant to section 654, plus two years consecutive fo r the prior prison terms. Pursuant to Realignment, the court ordered defendant to serve two and one-half years in custody and two and one-half years on supervised release. This appeal followed.

1 All section references are to the Penal Code unless otherwise indicated.3 D ISCUSSION At the time of the alleged offenses, and at the time of trial, section 666 provided: “Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Co de, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any pena l institution or having been imprisoned therein as a condition of probation fo r that offense, is s ubsequently 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.” That is, a petty theft conviction, normally a misdemea nor, could be treated as a felony if the accused had previously been convicted of on e of the specified theft-related offenses. Effective in urgency legislation in Se ptember 2010, the Legislature amended section 666 to provide that, “every person who, having been convicted three or more times of [specified theft crimes] . . . and havi ng served a term therefor in any penal institution or having been impr isoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, th en the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceedi ng one year, or in the state prison.” (See Assem. Bill No. 1844 (2009 -2010 Reg. Sess.), italics added.) Thus, the amended version requires th ree qualifying prior convictions to be eligible for felony

treatment. In People v. Vinson (2011) 193 Cal.App.4th 1190 ( Vinson ), the Court of Appeal considered whether the amendment should be a pplied retroactively to cases not yet final at the time of the amendment. The general rule is that statutory amendments are not4 retroactive, unless expressly so stated by the Legislature. An exception exists, however, under In re Estrada (1965) 63 Cal.2d 740, 744-745, when an amendment has the effect of mitigating the punishment. When the amendmen t has such an amelio rative effect, then it is applied retroactively to all convictions not yet final on the effective date of the amendment. Here, as in Vinson, the parties agree that defendant ’s conviction was not yet final at the effective date of the am endment to section 666. (See Vinson, supra, 193 Cal.App.4th at p. 1194.) The legislative hi story of the amendmen t showed that it was part of a larger scheme to increase pu nishment for various sex offenses, but the amendment to section 666 was added to pe rmit the Department of Corrections and Rehabilitation “to offset the new costs creat ed by Assembly Bill 1 844 by avoiding the costs of imprisonment associated with a particular class of offenders—those with fewer than three prior convicti ons for qualifying offens es. [Citation.]” ( Vinson , at p. 1197.) Thus, although the punishment imposed for a violation of section 666 remained the same (felony-eligible), the requirements for making th e offense felony-eligible were changed. “In other words, both versions of the stat ute describe a ‘wobbler’—an offense that is punishable either as a misdemeanor or as a fe lony. To be eligible for felony sentencing under section 666 as amende d, however, it is no longer enough that the defendant previously have been convic ted of a single specified theft-related conviction. Instead, three or more such qualifying convictions are now required. This ch ange to section 666’s sentencing factor [citation] is akin to adding an element to a crime or an enhancement, and benefits a defendant by making it less likely that he or she will qualify for felony-5 level punishment. Accordingly, Estrada’s reasoning applies. [Citation.]” ( Vinson , at pp. 1197-1198.) Defendant contends, and th e People concede, that Vinson applies, and defendant here should receive the benefit of the retroac tive application of the st atute. They agree, as does this court, that defendant is entitled to have the petty theft conviction reduced to a misdemeanor. D ISPOSITION We modify the judgment to reflect that th e petty theft convicti on in count one is a misdemeanor rather than a fe lony and vacate the sentence im posed for that count. We remand the matter to the trial court with direc tions to resentence defendant as to count one only and to forward a corrected abstra ct of judgment to the Riverside County Sheriff’s Department. The judgment is affirmed in all other respects. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur: KING J. CODRINGTON J.