People v. Barajas CA2/6

Filed 3/3/16 P. v. Barajas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261356 (Super. Ct. No. 2012032479) Plaintiff and Respondent, (Ventura County)

v.

LUIS ANTHONY BARAJAS,

Defendant and Appellant.

Luis Anthony Barajas appeals the order resentencing him to four years in county jail following his guilty plea to grand theft (Pen. Code,1 § 487, subd. (a)) and his admission that he committed the crime while out on bail or on his own recognizance on prior charges of petty theft with prior convictions (§ 666) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), as provided in section 12022.1, subdivision (b). Appellant also pled guilty in the two prior cases and subsequently pled guilty in a fourth case to another violation of Health and Safety Code section 11377. Imposition of sentence in all four cases was suspended and appellant was granted probation. Following numerous violations of probation, appellant agreed to a four-year

1 All statutory references are to the Penal Code unless otherwise stated.

county jail term in lieu of further probation. In sentencing appellant to that term, the court imposed the midterm of two years for the grand theft in the instant case plus consecutive eight-month terms in each of the three other cases. The on-bail allegations in the instant case were stricken. After Proposition 47 went into effect, appellant moved for resentencing in all four cases under section 1170.18, subdivision (a). The court denied the motion as to the instant case, but granted it as to the other three. The court proceeded to resentence appellant to another four-year term by imposing the midterm of two years in the instant case plus a two-year enhancement for one of the on-bail allegations that were previously stricken. The minute order states that "[t]his entry is made to correct the disposition on 12022.1(b) PC; as to count 1." The remaining on-bail allegation was once again stricken. In the three other cases, the court resentenced appellant to misdemeanors and imposed three 180-day terms to be served concurrently to the four-year term in the instant case. Appellant did not object to his sentencing below. On appeal, he contends the court lacked jurisdiction to resentence him in the instant case because his felony conviction of grand theft is not subject to resentencing under Proposition 47. He claims that the resentencing also violates subdivision (e) of section 1170.18, which states that "[u]nder no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence." The People do not dispute appellant's assertion that his resentencing in the instant case is unaffected by the Proposition 47 resentencing in the other three cases. The People contend, however, that the court nevertheless had jurisdiction to resentence appellant in the instant case pursuant to section 1170, subdivision (d)(1). We agree. That statute provides in pertinent part that "when a defendant . . . has been sentenced to be imprisoned in . . . county jail . . . and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial