People v. Criado CA3

Filed 9/24/15 P. v. Criado CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C075225

Plaintiff and Respondent, (Super. Ct. No. SC059726A)

v.

JERRY THOMAS CRIADO,

Defendant and Appellant.

Defendant Jerry Thomas Criado appeals from the trial court’s denial of his petition for recall of sentence pursuant to Penal Code section 1170.126.1 He contends the trial court erred in finding him ineligible for resentencing based on facts that were not pled or proved, the finding that he was armed during the offense required a tethering offense, and

1 Undesignated statutory references are to the Penal Code.

1

there is insufficient evidence to support the armed finding. We affirm the trial court’s order. BACKGROUND On October 31, 1995, defendant, an inmate at Deuel Vocational Institution, was escorted from his cell to the shower by two correctional officers. Among his shower items were a bar of soap and a razor. After defendant had been showering for about 15 minutes, the officers heard a crunching noise. Defendant handed the pieces of a broken razor to one of the officers, who noticed that the blade was missing. A search of defendant’s person and clothes did not result in the discovery of the blade. When an officer started searching defendant’s shower items, defendant whispered to the officer in Spanish, “Está in la Tira,” or, “It’s in the tier.” The officer found one-half of the razor blade in defendant’s bar of soap. Defendant was convicted of possessing a deadly weapon while in prison (§ 4502) with two prior strikes. He was sentenced to 25 years to life. Defendant filed a petition for recall of sentence in May 2013. The trial court denied the petition, finding him ineligible because he was armed during the commission of the current offense. DISCUSSION I Defendant contends he could not be found ineligible for resentencing under section 1170.126 because it was never pled and proven that he was armed in the commission of his crime. We disagree. Section 1170.126 allows defendants serving a life term for a third strike to petition for resentencing. (§ 1170.126, subd. (b).) Eligibility for resentencing is initially limited to defendants serving life terms for felonies that are neither serious nor violent. (§ 1170.126, subd. (e)(1).) Other factors can render a defendant ineligible for resentencing. One of the disqualifying factors, as cross-referenced in section 1170.126,