People v. Delgado CA4/3

Filed 1/14/25 P. v. Delgado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063539

v. (Super. Ct. No. 95NF0229)

FELIX DELGADO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with directions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

Felix Delgado appeals from the denial of his petition for recall and resentencing pursuant to Penal Code sections 1172.7 and 1172.75.1 Delgado contends the trial court erred in concluding he was not entitled to relief because his prior prison term enhancements under former section 667.5, subdivision (b) (section 667.5(b)) were “either stayed or stricken at the time of sentencing.” We agree with Delgado and reverse and remand for resentencing. PROCEDURAL HISTORY In November 1995, a jury found Delgado guilty of first degree burglary (§ 459; counts 1 & 3). The trial court found true two prior strike allegations (§§ 667, subds. (d) & (e)(2), 1170.12, subds. (b) & (c)(2)), two prior serious felony allegations (§ 667, subd. (a)), and two allegations that Delgado had served a prior prison term under former section 667.5(b). In April 1996, the trial court sentenced Delgado to 25 years to life in state prison on count 1 plus four years consecutive on count 3 and 10 years for the two section 667, subdivision (a) serious felony enhancements. As to the two 1-year terms for the prior prison term enhancements, the 1996 abstract of judgment had an “S” in the columns following each enhancement indicating they were each “stayed or stricken.” In September 1999, the court vacated the previous sentence and resentenced Delgado to the same sentence and struck the punishment on the prior prison term enhancements. In November 2023, Delgado filed a petition for recall and resentencing alleging that his name appeared on the Senate Bill No. 483 (2021-2022 Reg. Sess.) list provided by the state Department of Corrections