Trial court did not violate double jeopardy by vacating its previous order granting defendant’s Proposition 47 petition and reinstating his felony conviction for second degree burglary because a misdemeanor sentence was unauthorized. Roth pleaded guilty to second degree burglary (Pen. Code, § 459) based upon his entry into an individual storage locker located in a storage facility, with the intent to commit theft. The court imposed sentence, suspended execution, and granted probation. Roth subsequently violated probation but, before the violation hearing, he petitioned to reduce his felony to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18). The prosecutor agreed. The court granted the motion and imposed a misdemeanor sentence. A month later, the court vacated the sentence and reinstated Roth’s felony conviction because it had determined the burglary did not qualify for relief under Proposition 47. It then found Roth in violation of his probation and executed the felony sentence. Roth appealed, arguing the trial court’s increase of his sentence from a misdemeanor to a felony violated his right to protection against double jeopardy. Held: Affirmed. Generally, a valid sentence may not be increased after formal entry in the minutes, because to do so would implicate double jeopardy considerations (People v. Karaman (1992) 4 Cal.4th 335). This does not apply, however, if the sentence is unauthorized. The trial court here could not have imposed a lawful misdemeanor sentence unless Roth’s offense qualified as shoplifting (Pen. Code, § 459.5). It did not because the locker at issue was leased by an individual; it was not open to the public as a commercial business. Therefore, the trial court’s misdemeanor sentence was unauthorized and could be corrected at any time. The Court of Appeal disagreed with analysis of unauthorized sentences in People v. Amaya (2015) 239 Cal.App.4th 379.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B271932.PDF