A prior theft allegation under Penal Code section 666.5, does not by itself transform a wobbler offense into a straight felony. A jury convicted Lee of driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), and two counts of carrying a dirk or dagger (Pen. Code, § 21310). Lee admitted two theft-related priors (Pen. Code, § 666.5, subd. (a)), as well as four strike priors. The trial court denied Lee’s motion to reduce the offenses to misdemeanors (Pen. Code, § 17, subd. (b)), finding the recidivist theft allegation (Pen. Code, § 666.5) rendered the vehicle taking and receipt of stolen property offenses straight felonies. Lee appealed. Held: Reversed. All of Lee’s convictions were “wobblers,” i.e., punishable as either a felony or a misdemeanor. A trial court has discretion to sentence a wobbler as a misdemeanor (Pen. Code, § 17, subd. (b)). Penal Code section 666.5 is an alternate sentencing scheme that provides a greater base term for certain recidivist car thieves who had a prior felony conviction for car theft or related conduct. It applies only to current felonies; it does not “felonize” a wobbler by converting it to a straight felony. Therefore, a section 666.5 allegation does not affect the trial court’s authority to reduce a felony to a misdemeanor at sentencing. The trial court misunderstood the scope of its sentencing discretion, which mandates a remand for resentencing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F072173.PDF