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The People v. Shawn Lee Bennallack

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada)


January 24, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
SHAWN LEE BENNALLACK, DEFENDANT AND RESPONDENT.

(Super. Ct. Nos. SF03-052 & SF01-195)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Bennallack

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The People appeal from a trial court order granting defendant Shawn Lee Bennallack's petition to reduce his felony conviction for receiving stolen property (Pen. Code, § 496, subd. (a); undesignated section references are to this code) in case No. SF03-052 to a misdemeanor pursuant to former section 17, subdivision (b).*fn1 The People contend that the trial court exceeded its authority because defendant had been sentenced to state prison on the felony. Defendant concedes. We agree and will reverse the order.

A felony complaint filed in February 2003, in case No. SF03-052, charged defendant with receiving stolen property, unlawful possession of a billy club, and petty theft with a prior. The complaint further alleged two prior theft-related convictions and two prior prison terms.

In March 2003, defendant entered a no contest plea to receiving stolen property as a felony. The remaining counts and allegations were dismissed.

In April 2003, the court sentenced defendant to state prison for the midterm of two years.

In October 2010, defendant filed a petition for dismissal, requesting that the court reduce the receiving stolen property felony conviction to a misdemeanor pursuant to section 17, subdivision (b).

On November 5, 2010, the trial court granted relief and reduced the receiving stolen property felony conviction to a misdemeanor.

The People timely appeal.*fn2 Citing section 17, subdivision (b) and People v. Wood (1998) 62 Cal.App.4th 1262 (Wood), the People argue that the trial court exceeded its authority.

Receiving stolen property is a "wobbler" offense, meaning it is punishable by imprisonment in a state prison or in a county jail. (§ 496, subd. (a).)

Section 17 provided, in relevant part, as follows:

"(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

"(1) After a judgment imposing a punishment other than imprisonment in the state prison.

"[¶] . . . [¶]

"(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."

Here, the trial court's imposition of a state prison sentence for receiving stolen property rendered it a felony. After the prison sentence was imposed, the trial court lacked authority to reduce the receiving offense to a misdemeanor. (§ 17, subd. (b); Wood, supra, 62 Cal.App.4th at pp. 1264, 1267, 1271; see People v. Feyrer (2010) 48 Cal.4th 426, 438-439.)

DISPOSITION

The order granting relief and reducing the receiving stolen property conviction to a misdemeanor is reversed. The trial court is directed to enter an order denying relief.

We concur: NICHOLSON , J. DUARTE , J.


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