People v. Warmington

Filed 10/17/17 CERTIFIED FOR PUBLICATION

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

THE PEOPLE, C082556

Plaintiff and Respondent, (Super. Ct. No. 03F2470)

v.

LEONARD DENNIS WARMINGTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Shasta County, Cara L. Beatty, Judge. Reversed with directions.

Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Max Feinstat, Carlos A. Martinez, and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

1

Defendant Leonard Dennis Warmington appeals from the trial court’s order denying his Penal Code section 1170.181 petition for redesignation of his felony conviction for embezzlement (§ 503) to a misdemeanor. He contends the trial court erred in finding his crime was not subject to section 1170.18 relief. We agree and shall reverse the trial court’s order and remand with instructions to enter an order granting the requested relief. BACKGROUND In December 2002, defendant, a courtesy clerk at a Redding Walmart, was discovered to have stolen a television from the store, returned it for a $746.46 Walmart gift card, and used the card to purchase various items. Confronted by a police officer, defendant admitted stealing other items from the Walmart, including a recliner chair. Defendant was ordered to return the items he stole. The value of the items stolen by defendant and subsequently returned was $851. Defendant pleaded no contest to embezzlement in October 2003 and was placed on three years’ formal probation in November 2003. In February 2016, defendant filed a section 1170.18 petition to redesignate his offense as a misdemeanor. The trial court denied the petition without prejudice to filing a new petition, on the ground that defendant’s crime was not eligible for relief. DISCUSSION Defendant contends the trial court erred in finding the crime of embezzlement was not eligible for section 1170.18 relief. We agree. The passage of Proposition 47 created section 1170.18, which provides: “A person who has completed his or her sentence for a conviction, whether by trial or plea,