Wednesday, September 27, 2017
In Proposition 47 Case…
C.A. Invalidates Resentencing on Theft Count; Conviction Was Reversed 20 Years Ago
By a MetNews Staff Writer
The Fifth District Court of Appeal has invalidated a 2015 order that a conviction for felony petty theft involving the taking of property worth less than $950 be reduced to a misdemeanor, under Proposition 47, pointing to a factor overlooked by the defendant, the prosecutor, and the trial court: the conviction was reversed in 1997.
Defendant Robert Dale Crabb had left a market without paying for some meat and, when confronted by security guards in the parking lot, pulled out a knife. He was convicted in 1995 of second degree robbery, assault with a deadly weapon, and petty theft.
The Court of Appeal in 1997 reversed the theft conviction because the pilfering was an element of the robbery.
Nonetheless, Crabb, acting in pro per, sought a recall of the sentence and a new sentencing, as provided for by Proposition 47, the Safe Neighborhoods and Schools Act, where the offense for which the defendant is serving time was a felony when committed, but is now a misdemeanor.
The fact that he was not serving time on the petty theft count went unnoticed.
At a hearing held on July 10, 2015, in the absence of the defendant, the prosecutor noted that a reduction of the theft conviction to a misdemeanor would not affect the sentence. Kern County Superior Court Judge Michael B. Lewis granted the relief Crabb requested.
Lewis’s order was nullified Monday in an opinion that was not certified for publication.
“Because his petty theft conviction was reversed, appellant does not qualify for resentencing under Proposition 47,” Acting Presiding Justice Bert Levy wrote.
“Here, because appellant was not qualified for resentencing under Proposition 47,” he declared, “we set aside the July 10, 2015 resentencing proceeding in its entirety, including the superior court’s order dated July 10, 2015, which has no effect.”
Levy added in a footnote:
“Because appellant was never entitled to resentencing under Proposition 47 following reversal of his petty theft conviction, we decline to address his alternative argument that he suffered a constitutional violation when the July 10, 2015, resentencing hearing occurred in his absence or without the appointment of counsel.”
Crabb is presently serving his sentence of 25 years to life, plus one year.
The case is People v. Crabb, F072218.
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