People v. Canales CA5

Filed 6/28/21 P. v. Canales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE , F080664 Plaintiff and Respondent, (Super. Ct. No. F18903461) v.

LUIS BENITO CANALES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Meehan, J. and Snauffer, J.

Defendant Luis Benito Canales pled no contest to identity theft and admitted two prior prison term allegations. After he was sentenced, defendant moved to recall his sentence due to the passage of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). At resentencing, the trial court struck one prior prison term enhancement. On appeal, defendant contends that the remaining prior prison term enhancement should also be stricken pursuant to Senate Bill 136. We agree and order the enhancement stricken. In all other respects, we affirm. FACTUAL AND PROCEDURAL SUMMARY1 On January 4, 2018, defendant attempted to cash a fraudulent check at a bank. The teller suspected the check was fraudulent and told defendant she needed manager approval to cash the check. After speaking to the manager, the teller determined the check was fraudulent and contacted the police. On May 30, 2019, the Fresno County District Attorney filed an amended information charging defendant with identity theft (Pen. Code, § 530.5, subd. (a);2 count 1), forgery (§ 475, subd. (c); count 2), second degree commercial burglary (§§ 459, 460, subd. (b); count 3), and identity theft with a prior conviction (§ 530.5, subd. (c)(2); count 4). It was further alleged that defendant had served six prior prison terms (§ 667.5, subd. (b)). On August 8, 2019, defendant entered a negotiated plea in which he pled no contest to count 1 and admitted two prior prison term allegations. The remaining counts and special allegations were dismissed and the prosecutor agreed to a five-year sentencing lid.