People v. Thomas CA3

Filed 7/29/15 P. v. Thomas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C076289

Plaintiff and Respondent, (Super. Ct. No. 12F03489, 13F02996) v.

MARQUITA KYLA-DENA THOMAS,

Defendant and Appellant.

Defendant Marquita Kyla-Dena Thomas pleaded no contest to second degree burglary (Pen. Code, § 459)1 in case No. 120F3489 and was convicted by a jury of three counts of second degree burglary (§ 459) and three counts of second degree robbery (§ 211) with an enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)) in case

1 Undesignated statutory references are to the Penal Code.

1

No. 13F02996. Sentencing defendant in both cases, the trial court imposed a six-year state prison term. On appeal, defendant contends the provisions of Proposition 47, the Safe Neighborhoods and Schools Act, apply retroactively to reduce her conviction for second degree burglary in case No. 12F03489 to shoplifting (§ 459.5), a misdemeanor. We affirm. BACKGROUND Since defendant’s contention concerns only case No. 12F03489, we limit our summary of facts to that case. On May 15, 2012, a police officer saw defendant and two other men leave a car parked in a Lowe’s parking lot, enter, and then leave the store. The men carried nothing when they left the store, but defendant left carrying a large handbag. After determining the driver of the car was on probation, the officer conducted a probation search of him and found items stolen from Lowe’s. Defendant admitted taking the items. DISCUSSION Proposition 47 requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also added section 1170.18 to the Penal Code, which provides that a person who is “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” Defendant correctly notes that entering a commercial property with the intent to commit larceny is the crime of shoplifting, a misdemeanor, unless the value of property taken or intended to be taken exceeds $950. (§ 459.5, subd. (a).) She argues that pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada), the provisions of