Opinion
F076077
04-03-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN MATTHEW EVANS, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF49268, CRF45746, CRF45021)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Defendant Sean Matthew Evans contends on appeal that the trial court erred in sentencing him to more than six months on two shoplifting convictions. The People concede. We vacate the sentences in two cases and remand for resentencing.
PROCEDURAL SUMMARY
On December 8, 2014, in case No. CRF45021, defendant pled guilty to misdemeanor shoplifting (Pen. Code, § 459.5; count 2) and two other counts.
All statutory references are to the Penal Code.
It appears that count 2 in case No. CRF45021 was reduced from felony burglary (§ 459) to misdemeanor shoplifting (§ 459.5) pursuant to section 1170.18 on December 19, 2014.
On December 26, 2014, in case No. CRF45746, defendant pled guilty to commercial burglary (§ 459; count 2) and two other counts.
On January 16, 2015, the trial court granted probation in both cases.
On February 16, 2017, defendant admitted violating probation in both cases.
On June 19, 2017, the trial court sentenced defendant in both cases. In case No. CRF45021, the court imposed one year on count two, to be served concurrently to another term imposed in that case. In case No. CRF45746, the court also imposed one year on count 2, referring to it as a "violation of Penal Code Section 459.9, a misdemeanor," to be served concurrently to another term imposed in that case.
Starting on April 17, 2015, the minute orders in case No. CRF45746 refer to count 2 as "Reduced Misdemeanor PC 1170.18, PC 459," rather than "Felony: PC 459." We assume the offense was reduced to misdemeanor shoplifting (§ 459.5) pursuant to section 1170.18 around this time. --------
DISCUSSION
The parties agree, as do we, that the trial court erred in imposing the one-year terms on the shoplifting convictions. Section 459.5, subdivision (a) provides:
"Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170." (Italics added.)
Section 19, in turn, provides the punishment for misdemeanors:
"Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both." (Italics added.)
Thus, in this case, the trial court was required to impose a sentence of six months or less, or a fine of $1,000 or less, or both, on each shoplifting conviction. We will remand for the court to resentence defendant in its discretion in these two cases.
DISPOSITION
The sentences in case Nos. CRF45021 and CRF45746 are vacated. The matter is remanded to the trial court for resentencing in both cases. In all other respects, the judgments are affirmed.