Opinion
D058143
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES BRADFORD SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 225111)
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Reversed in part; affirmed in part with directions.
A jury convicted James Bradford Smith of two counts of theft of personal property (Pen. Code, § 487 subd. (a); count 1), and petty theft, with a prior (§§ 484 & 666; count 2). At a subsequent trial, the jury found true the alleged previous conviction of three armed robbery offenses in Illinois that qualified as "strikes" under California law (§§ 667 subd. (b)-(i), 1170.12 & 668).
All statutory references are to the Penal Code unless otherwise specified.
The court concluded the three prior offenses legally qualified as "strikes" under California law, and dismissed two of the strikes pursuant to section 1385. The court imposed a sentence of six years on count 2; three years for petty theft with a prior doubled because of the remaining strike prior. Smith was not sentenced on count 1. Smith appeals contending count 2, petty theft with a prior conviction, must be dismissed as a lesser included offense of the count 1, grand theft conviction, and the matter remanded for resentencing. We affirm the sentence with directions to the trial court to strike the conviction on count 1.
FACTS
On January 17, 2010, Everest Willey was working at a pretzel stand at Qualcomm Stadium. Willey's cousin, Kevin Bauer, came to help him. Around that time, Smith approached the pretzel stand wearing a bright blue poncho. Smith grabbed a money pouch out of the bottom of the pretzel cart and placed it under his poncho. As Smith walked away, Willey told Bauer to watch the stand while he followed Smith.
Willey got in line behind Smith at a men's restroom. Another man came to talk to Smith. Willey left Smith for about 15 seconds to find a security guard. The security guard watched Smith while Willey found a police officer. The police officer searched Smith and found $447 in his pocket. Smith was arrested and the empty money bag was found in a trash can between the pretzel stand and the restroom. It was later determined that $805 was missing from the money bag.
DISCUSSION
A. The Conviction for Petty Theft with a Prior Should Have Been Dismissed
as a Lesser Included Offense of Smith's Conviction for Grand Theft
1. General Legal Principles Regarding Lesser Included Offenses
A defendant may be charged in a single pleading with two or more different offenses connected together in their commission and may generally be convicted of any number of the offenses charged. (§ 954.) However, a defendant cannot be convicted of any offense having statutory elements that are necessarily included in a greater offense of which he was found guilty. (People v. Pearson (1986) 42 Cal.3d 351, 355.)
The test for determining whether a particular offense is a necessarily included lesser offense is the statutory elements test. (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228, 1231.) This test is satisfied whenall the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense," ' " i.e., the defendant could not have committed the greater offense without also necessarily committing the lesser offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
2. Application of General Legal Principles to This Case
Petty theft is a lesser and necessarily included offense of grand theft. (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116.) Petty theft with a prior is not a separate substantive crime of petty theft. (People v. Tardy (2003) 112 Cal.App.4th 783, 787.)
Smith's conviction for petty theft (count 2) was a lesser included offense of his conviction for grand theft (count 1). Because both convictions resulted from the same act, the lesser included offense (count 2) would normally be stricken. Here, it should not be stricken because of a change in the law regarding grand theft.
B. Retroactive Application of the Change in Section 487, Grand Theft
When a law is amended to decrease punishment, and there is no savings clause, the new law is deemed applicable to all cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 744-748.)
On September 30, 2010, section 487, grand theft, was amended. (§ 487, as amended by Stats. 2010, ch. 693, §1 (Assem. Bill No. 2372 (2009-2010 Reg. Sess.).) This amendment changed the threshold for grand theft from $400 to $950.
Smith stole $805, and thus could not be convicted of grand theft under the new law. Because Assembly Bill 2372 does not contain a savings clause, the beneficial change in the punishment for theft retroactively applies to Smith. (See In re Estrada, supra, 63 Cal.2d at p. 747.)
C. Sentencing Appropriate Because of Judicial Economy
and No "Miscarriage of Justice"
The jury convicted Smith of petty theft with a prior and the court sentenced him to the middle term, doubled because of a prior strike. The court chose not to sentence Smith on the grand theft conviction because "the sentence is the same" for both grand theft and petty theft with a prior. Retroactive application of section 487 strikes Smith's conviction of grand theft. Smith argues that even with the retroactive application of section 487 he is still entitled to remand for full resentencing. Smith contends, correctly, that if this case were remanded for resentencing the trial court would have jurisdiction to modify his sentence in light of the changed circumstances. However, we are not required to remand because of the reversal of grand theft, and we will not remand because the retroactive application does not have prejudicial effect resulting in a miscarriage of justice. (See People v. Massie (1967) 66 Cal.2d 899, 915 [reversing defendant's conviction and according him a new trial because "the prejudicial effects of the error constituted a miscarriage of justice"].)
A "miscarriage of justice" should be declared only when the court, " 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
We conclude that it is not reasonably probable that a more favorable result would be reached in the absence of the error. Smith contends he is entitled to remand for full resentencing. But the court did not sentence Smith on the conviction of grand theft, and if remanded, the court could only resentence as to petty theft with a prior. Such a result would be inefficient and nonsensical. While the court should have sentenced Smith under count 1, it sentenced him under count 2 (petty theft). Because of the change in the law of grand theft, Smith should be sentenced under count 2, which he was. There is no reason to remand.
DISPOSITION
The conviction on count 1 of grand theft is reversed. The conviction on count 2 of petty theft with a prior is affirmed. The trial court is directed to correct the abstract of judgment in accordance with this opinion.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.