People v. Anunson CA3

Filed 6/27/16 P. v. Anunson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C079221

Plaintiff and Respondent, (Super. Ct. No. 11F2194)

v.

KIRSTEN FAITH ANUNSON,

Defendant and Appellant.

Defendant Kirsten Faith Anunson appeals from the trial court’s denial of her petition for resentencing pursuant to Penal Code section 1170.18.1 She contends that her second degree burglary conviction (§ 459) qualified for resentencing because her criminal conduct constitutes the newly enacted crime of shoplifting (§ 459.5). The People assert defendant was charged with burglary not only based on her intent to commit larceny, but also based on her intent to commit identity theft in violation of section 530.5, and that the crime she committed was not shoplifting. Defendant was

1 Undesignated statutory references are to the Penal Code.

1

charged with burglary based on her intent to commit “larceny and any felony.” This is the crime to which she pleaded no contest. Under these facts, we conclude defendant is “[a] person currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense.” (§ 1170.18.) We reverse. I. BACKGROUND Defendant was charged with second degree burglary (§ 459), forgery (§ 475, subd. (c)), and identity theft (§ 530.5). She pleaded no contest to second degree burglary. The factual basis of defendant’s plea was taken from the police report, which was summarized in the probation report as follows: “On 09/15/10, at approximately 1:52 PM, the U.S. Bank Burney Branch Manager[] contacted the Shasta County Sheriff’s Office. The manager stated two checks had been cashed at the Burney branch, belonging to victim Karl Wirth. The victim’s checks were reportedly taken from his locked trailer near Tamarack Avenue in Burney. The branch manager stated the defendant, Kirsten Faith Anunson, cashed check No. 836 on 9/04/10[] for $187.00. On the bottom of the check it stated it was for the purchase of firewood. The transaction was accomplished via a U.S. Bank Automatic Teller Machine (ATM).” In January 2012, the trial court placed defendant on three years’ formal probation. In August 2014, after several probation violations and reinstatements, the trial court terminated probation. Sentencing defendant on this and unrelated cases, the trial court imposed a split term consisting of one year in county jail and three years eight months of mandatory supervision. In March 2015, defendant subsequently filed a section 1170.18 petition for resentencing on her second degree burglary conviction. In denying the petition, the trial court found: “this particular second degree burglary at a bank, would be entering a commercial establishment, a banking establishment, with the intent to commit more than