People v. Morales CA3

Filed 9/4/15 P. v. Morales CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C078663

Plaintiff and Respondent, (Super. Ct. No. SF126341A)

v.

JOHN MORALES,

Defendant and Appellant.

Defendant John Morales appeals from the trial court’s order denying his petition for resentencing pursuant to Penal Code section 1170.181 because resentencing would invalidate his plea agreement. He contends the court erred in denying the petition on this ground, and asks us to remand with directions to grant his petition. We shall reverse and remand for additional proceedings on defendant’s petition.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from the factual basis of defendant’s no contest plea.

On December 9, 2013, defendant entered a Sears store in Stockton and took 11 pairs of jeans and left them in the dressing room. Defendant returned to his car; another person exited the car, entered the store, and went to the dressing room. The person put the jeans in a plastic bag, left without paying, went to the car, and drove off. Defendant was captured sending the other person to the dressing room.

Defendant was charged with second degree robbery (§ 211) and petty theft with a prior (§ 666), along with three prior prison term allegations (§ 667.5, subd. (b)). Defendant pleaded guilty to second degree burglary (§ 459) with a stipulated term of three years in county jail; the remaining count and the enhancements were dismissed as part of the plea. The trial court imposed the stipulated term.

Defendant subsequently filed a section 1170.18 petition for resentencing, asking for the recall of his felony sentence for second degree burglary and that he be resentenced to a misdemeanor under subdivisions (b) and (d) of section 1170.18. The prosecution’s opposition argued that resentencing would violate the terms of the plea agreement and asked the court to deny the petition or to give defendant the option of pleading guilty to another nonstrike felony with a maximum term of three years while vacating the original plea.