People v. Delgado CA3

Filed 8/2/16 P. v. Delgado CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C079467

v. (Super. Ct. No. 11F5625)

MINDY MARIE DELGADO,

Defendant and Appellant.

Defendant Mindy Marie Delgado appeals from the trial court’s denial of her petition for resentencing pursuant to Penal Code section 1170.18.1 She contends her conviction for second degree burglary (§ 459) was eligible for resentencing because her criminal activity constituted the newly enacted crime of shoplifting (§ 459.5). We conclude defendant established eligibility to resentencing for her second degree burglary

1 Undesignated statutory references are to the Penal Code.

1

conviction. Accordingly, we reverse the trial court’s order declining to find eligibility and remand for additional proceedings.2 BACKGROUND Since the police report was the factual basis for defendant’s no contest plea, we take the facts of her crime from a summary of the police report found in the probation report. On March 24, 2011, Sierra Central Credit Union in Redding notified Ronald Eakins it had refused to honor a check for $350 issued from his account and tendered by a Joseph Callejas because the signature did not match the one on file for Eakins. Eakins reviewed his checks and found two were missing. He visited the bank where he learned the second missing check, in the amount of $250, had been cashed by defendant. A surveillance photograph showed defendant cashing the check. Defendant was charged with second degree burglary, forgery (§ 475, subd. (c)), and identity theft (§ 530.5), along with two strike allegations. She pleaded no contest to second degree burglary. The trial court suspended imposition of sentence and granted her three years’ formal probation. After defendant subsequently admitted violating probation, the trial court sentenced defendant to serve an eight-month state prison term, to be served consecutive to a four-year term in an unrelated case. Defendant subsequently filed a section 1170.18 petition seeking resentencing on her burglary conviction. The trial court denied the petition, finding the crime was ineligible for resentencing.