People v. Carrillo CA2/3

Filed 9/8/16 P. v. Carrillo CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

B263195 THE PEOPLE OF THE STATE OF CALIFORNIA, (Los Angeles County Super. Ct. No. GA090378) Plaintiff and Respondent,

v.

LINO CARRILLO,

Defendant and Appellant.

APPEAL from order of the Superior Court of Los Angeles County, Honorable Dorothy L. Shubin, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Lino Carrillo was convicted of second degree burglary, a felony, for stealing $128.89 worth of clothing from a Walmart store and was sentenced to a 32-month prison term. (Pen. Code, § 459.)1 Subsequent to his conviction, the electorate approved the Safe Neighborhoods and Schools Act, commonly referred to as Proposition 47, which reduced certain drug and theft offenses to misdemeanors and created a process for resentencing persons serving felony sentences for those offenses. (§ 1170.18). Carrillo filed a petition to reduce his conviction to a misdemeanor, which the trial court denied on the ground that he would pose an unreasonable risk of danger to public safety if resentenced. (§ 1170.18, subds. (b)-(c).) We conclude the trial court acted within its discretion based on the evidence of Carrillo’s past criminal convictions. We affirm. FACTS AND PROCEDURAL BACKGROUND On July 16, 2013, Carrillo was arrested for stealing $128.89 worth of clothing from a Walmart store. He admitted guilt. On October 11, 2013, Carrillo was convicted of second degree burglary and sentenced to 32 months in state prison. On January 23, 2015, Carrillo petitioned the court for resentencing under Proposition 47 (§ 1170.18, subd. (a)). The People opposed the petition. The People acknowledged Carrillo was eligible for resentencing, as his burglary conviction would now constitute misdemeanor shoplifting under Proposition 47 and he had no disqualifying prior convictions. Nevertheless, the People maintained he was unsuitable for resentencing because he posed an unreasonable risk of danger to public safety. The People relied exclusively on Carrillo’s criminal history, which included misdemeanor offenses and two prior felony convictions for kidnapping in 2002 and possession of a firearm by a convicted felon in 2010. Additionally, the People asserted that, in 2002, Carrillo had been charged with kidnapping in the commission of a carjacking, but the charge had been dismissed in exchange for his guilty plea to simple kidnapping.