People v. Hart CA6

Filed 4/29/16 P. v. Hart CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041926 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS141716A)

v.

MICHAEL DANIEL HART,

Defendant and Appellant.

Defendant Michael Daniel Hart pleaded no contest to petty theft with three or more priors. After his plea, but before he was sentenced, Proposition 47 became law, making his offense a misdemeanor. At sentencing, defendant objected to the imposition of a felony sentence. The trial court overruled the objection on the ground that Proposition 47 did not operate retroactively. After the court imposed a term of 32 months, defendant immediately petitioned for resentencing under Proposition 47. The court granted the petition, designated the offense a misdemeanor, and recalled the sentence. The court then resentenced defendant to 365 days in county jail followed by a one-year term of parole. On appeal, defendant contends the trial court erred by imposing a felony sentence because Proposition 47 operated retroactively to make his offense a misdemeanor before he was sentenced. The Attorney General contends Proposition 47 did not retroactively make the offense a misdemeanor, and that this court would lack jurisdiction over an appeal of a misdemeanor conviction if Proposition 47 operated retroactively.

We requested supplemental briefing on the question of whether this appeal is moot. Having considered the parties’ responses, we conclude we cannot provide the parties with practical, effectual relief. Accordingly, we will dismiss this appeal as moot. I. FACTUAL AND PROCEDURAL BACKGROUND On July 7, 2014, defendant stole an unattended wallet from a table at a McDonald’s restaurant in Monterey.1 The theft was captured on video. The victim reported losses valued at $105 in addition to the loss of an identification card and a debit card. The prosecution charged defendant by information with one count of petty theft with three or more priors. (Pen. Code, §§ 484, subd. (a), 666.)2 The information further alleged defendant had suffered a prior strike conviction and three prior prison terms. (§§ 667, subd. (d), 667.5, subds. (b) & (c), 1170.12, subd. (c)(1), 1192.7, subd. (c).) On September 17, 2014, defendant pleaded no contest to the charged offense and admitted the prior strike allegation. At the sentencing hearing on December 3, 2014, defendant argued, “I believe that it would be an illegal sentence for the Court to impose [a] felony sentence, at this time, as this matter, I believe, should be designated a misdemeanor under the current language of Penal Code Section 484 and Penal Code Section 666.” The court rejected this argument: “The Court does not find, based on the plain reading and the plain meaning of the language in the initiative, that the initiative is retroactive.” The court then imposed a term of 32 months in state prison, equal to double the lower term of 16 months. Defendant immediately petitioned for resentencing under section 1170.18. The trial court granted the petition, designated the offense a misdemeanor, and recalled the above sentence. The court then resentenced defendant to 365 days in county jail followed by a one-year term of parole. 1 This statement of facts is taken from the probation report. 2 Subsequent undesignated statutory references are to the Penal Code.