People v. Smith CA3

Filed 5/8/14 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C072008

Plaintiff and Respondent, (Super. Ct. No. 62-113058B)

v.

CORTNEY LORTEK SMITH,

Defendant and Appellant.

A jury found defendant Cortney Lortek Smith guilty of second degree burglary (Pen. Code, § 459—count one)1 and petty theft with a prior theft conviction (§ 484, subd. (a)/666, subd. (b)(1)—count three). After defendant admitted a prior strike conviction and two prior prison terms (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667.5, subd. (b)), the trial court denied defendant’s Romero2 motion and his motions to

1 Undesignated statutory references are to the Penal Code.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

1

reduce both counts to misdemeanors and to stay or dismiss the prison priors. Defendant was sentenced to four years eight months in state prison, with count three being stayed pursuant to section 654. On appeal, defendant contends we should reverse the denial of his Romero motion and remand for reconsideration in light of Proposition 36’s changes to the “Three Strikes” law. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On April 14, 2012, at around 5:00 p.m., defendant, codefendant Shericca Robinson3 and two other females entered a Roseville Raley’s supermarket. Defendant and one of the females acted as lookouts while Robinson took large containers of baby formula and placed them in a bag. After Robinson and one of the other females took more items, the group headed for the exit. Defendant and his cohorts left the store without paying for the items. The store’s asset protection manager went outside and yelled, “Security. Drop the bag,” causing one of the females to drop a bag. Robinson and defendant evaded capture, running to a nearby apartment complex. After a bystander informed police that he had seen the subjects flee the scene and later saw two members of that same group enter a fast food restaurant, police went to the restaurant and apprehended defendant and Robinson. Both were identified by the Raley’s loss prevention agent who witnessed the crime. Defendant told the officer he was from Oakland and he had been visiting his brother in South Sacramento. He came up to Roseville with some friends who were shopping. He said he was unaware that his friends were stealing, and he ran from the loss prevention officer because he thought he was going to be attacked.