(Super. Ct. No. MC YK CR BF 09-0197)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On September 23, 2009, defendant Edward Paul Lotze entered a negotiated plea of guilty to grand theft (Pen. Code, former § 487, subd. ( subd. ( subd. ( )*fn1 and resisting a peace officer, a misdemeanor (§ 148, (1)) and admitted a prior prison term allegation (§ 667.5, ) in exchange for dismissal of the remaining count and a grant of summary probation. The court suspended imposition of sentence and granted summary probation for a term of three years.
After defendant violated probation, on May 26, 2011, the court sentenced defendant to state prison for an aggregate term of four years, that is, the upper term of three years for grand theft plus a one-year enhancement for the prior prison term. For the misdemeanor resisting offense, the court imposed a terminal sentence with informal probation terminated as unsuccessful.
Defendant appeals. He contends that he is entitled to the ameliorative effect of the 2010 amendment to section 487, subdivision (a), which was effective January 1, 2011. While conceding that the amendment to section 487 applies retroactively, the People argue that defendant has failed to establish that he is entitled to the benefit of the amendment. We conclude that the amendment applies retroactively and that the record reflects that defendant is entitled to the reduction of his felony grand theft conviction to a misdemeanor.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with grand theft, that is, a "cash register and $566.02 in cash." When defendant committed his offense in December 2008, section 487, subdivision (a) provided, "Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) . . . ." (Stats. 2002, ch. 787, § 12, p. 5000.)
Defendant waived a preliminary hearing. When defendant entered his plea (September 2009), he admitted stealing property of a value "exceeding $400, specifically a cash register, and $566.02 in cash." The parties stipulated to a factual basis for the plea. Defendant's plea form refers to a police report as the factual basis for his plea but the police report is not part of the record on appeal. No probation report was filed at the time of the original sentencing when defendant was granted three years of summary probation. When granted summary probation, defendant was ordered to pay victim restitution to Black Butte Recycling in the amount of $566.02, an amount with which the prosecutor agreed but noted that the cash register had not been returned "in working condition." The probation report prepared on May 10, 2011, reflects that defendant "stole a cash register filled with cash and [a] can of tobacco" from an office; "[t]he cash register was valued at $375.00 and the cash inside totaled approximately $566.00."
At the sentencing hearing on May 24, 2011, defense counsel sought reduction of defendant's felony conviction for grand theft to a misdemeanor pursuant to section 17, subdivision (b) (hereafter section 17(b)), citing the 2010 amendment of section 487. Section 487, subdivision (a) was amended, effective January 1, 2011, to provide, "Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950) . . . ." (Stats. 2010, ch. 693, § 1; Stats. 2010, ch. 694, § 1.5.)
The prosecutor responded that defendant was not entitled to a reduction pursuant to section 17(b), that defendant had forfeited receiving the benefit of the doubt, and that the legislation did not have retroactive application. The trial court denied the motion, addressing defendant, "If you were charged with this matter now, it would not be charged as a felony, it would be charged as a misdemeanor given the monetary amount." The proceedings were continued to May 26, 2011. Defense counsel renewed his argument that had the case been "litigated today it would be a misdemeanor case." The prosecutor noted that "it would be a misdemeanor because the statute was amended, not because it was a good thing to do that day." The court noted that although the statute had changed, defendant's felony conviction did not change.
"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." (In re Estrada (1965) 63 Cal.2d 740, 745;*fn2 In re Kirk (1965) 63 Cal.2d 761, 762-763.) The "amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date." (People v. Floyd (2003) 31 Cal.4th 179, 184.) "'[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.'" (People v. Vieira (2005) 35 Cal.4th 264, 306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 (Nasalga).) Amendments "that mitigate punishment by increasing the dollar amount for certain crimes or enhancements, should be applied ...