People v. Barnett CA3

Filed 8/16/16 P. v. Barnett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, C078915

Plaintiff and Respondent, (Super. Ct. No. CM040827)

v.

DANIEL JAY BARNETT,

Defendant and Appellant.

Upon responding to a report of a robbery at a children’s clothing store, officers arrested defendant Daniel Jay Barnett, who matched the store clerk’s description of the person who both robbed the store and subsequently threatened the clerk with a knife. An information charged defendant with second degree robbery and second degree burglary while armed with a knife. (Pen. Code, §§ 211, 459, 12022, subd. (b)(1).)1 The People also alleged defendant was previously convicted of a strike offense. (§ 667, subd. (d),

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

1

1170.12.) Subsequently, defendant entered into a plea bargain in which he entered a no contest plea to one count of second degree burglary and admitted he had been armed with a knife. The court sentenced defendant to four years in state prison. Defendant filed a petition for resentencing pursuant to section 1170.18, requesting that the burglary conviction be redesignated a misdemeanor. The court denied the petition and defendant filed a timely notice of appeal. We agree that the trial court should not have found defendant’s burglary conviction ineligible for resentencing. We will reverse that order and remand for further proceedings on the petition. FACTUAL AND PROCEDURAL BACKGROUND We take some of the facts from our previously filed opinion. (People v. Barnett (Apr. 3, 2015, C076483) [nonpub. opn.].) In March 2014 officers responded to a report of a robbery at a children’s clothing store. The victim was the store clerk, who told police that a man took merchandise and left the store without paying. She ran after the man, who brandished a knife in response. The clerk backed away and the man rode off on a bicycle. Police thought the clerk’s description fit defendant, who was living at a local transient camp. Officers went to the camp and found defendant. Inside defendant’s tent, the police found the merchandise taken from the store. Defendant had a knife in his pocket and a bicycle outside of the tent, both of which matched the description given by the store clerk. The clerk identified defendant as the man who stole the merchandise. The People charged defendant with second degree robbery and second degree burglary while armed with a knife. The People also alleged defendant was previously convicted of a strike offense. Defendant entered a plea of no contest to second degree burglary and admitted being armed with a knife. In exchange for his plea the remaining charge was dismissed