People v. Rubio CA3

Filed 9/27/16 P. v. Rubio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Glenn) ----

THE PEOPLE, C080311

Plaintiff and Respondent, (Super. Ct. No. 13NCR09625)

v.

MARCELO RUBIO, JR.,

Defendant and Appellant.

Defendant Marcelo Rubio, Jr., was convicted of multiple theft offenses and admitted four prior prison term enhancement allegations. Subsequent to sentencing, the trial court redesignated two of the prior convictions on which the prior prison term enhancements were based as misdemeanors. On appeal, defendant contends the trial court erred in denying his motion to be resentenced by striking the enhancements based on that redesignation of the prior convictions as misdemeanors. We conclude defendant is not entitled to resentencing on the prior prison term enhancements and affirm the trial court’s order.

1

PROCEDURAL BACKGROUND1

The People charged defendant with first degree residential burglary (Pen. Code, § 459),2 conspiracy to commit a felony (§ 182, subd. (a)(5)), and misdemeanor possession of burglary tools (§ 466), and further alleged defendant had served four prior prison terms within the meaning of section 667.5, subdivision (b). The four prior prison terms were served for felony convictions of section 487.1 (case No. CM000457), sections 487 and 470 (case Nos. 00CR00024 and 00CR00009),3 section 273.5, subdivision (a) (case No. 04NCR01172), and Health and Safety Code section 11352 (case No. 23323). A jury found defendant guilty of first degree burglary and misdemeanor possession of burglary tools. Defendant admitted the prior prison term enhancement allegations. The trial court sentenced defendant to an aggregate term of 10 years in state prison, including an additional one year term for each of the four prison term enhancements. This court affirmed defendant’s convictions. (People v. Rubio (Oct. 24, 2014, C074476) [nonpub. opn.].)