People v. Frausto CA2/2

Filed 12/22/15 P. v. Frausto CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B264147

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA085967) v.

DYLAN FRAUSTO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven P. Senora, Judge. Reversed and remanded.

Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Dylan Frausto pleaded “no contest” to one count of grand theft of a person in violation of Penal Code section 487,1 subdivision (c) on May 21, 2012. He was initially charged with one count of second degree robbery in violation of section 211. As part of the plea bargain, he was granted three years’ formal probation under terms and conditions that included serving 240 days in the county jail. On May 4, 2015, defendant filed a petition requesting resentencing of his conviction under section 1170.18 (Proposition 47). The trial court denied the petition on the ground that section 487 provides that the theft of personal property of any value from the person of another is grand theft. (§ 487, subd. (c).) The record shows that defendant picked up a flashlight and a small set of tools in a Wal-Mart store and left the store without paying. He attempted to run when confronted by security officers, but they managed to restrain him. He was later arrested. The value of the stolen items totaled $29.92. Section 1170.18 provides that “[a] person currently serving a sentence for a conviction, whether by trial or plea, 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 . . . to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).) Section 490.2 provides in pertinent part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .” (Italics added.)