People v. Criado CA6

Filed 2/7/22 P. v. Criado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048757 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS161562A)

v.

EDDIE CRIADO,

Defendant and Appellant.

Appellant Eddie Criado appeals from a judgment entered upon resentencing after a prior appeal. In the prior appeal, this court directed the trial court to strike two, one-year prior prison term enhancements it had previously imposed (Pen. Code, § 667.5, subd. (b) (hereafter section 667.5(b)1)) in light of Senate Bill No. 136 (Stats. 2019, ch. 590) (Senate Bill 136) and to resentence Criado. At his resentencing hearing in January 2021, the trial court struck the prior prison term enhancements and sentenced Criado to six years in state prison. The trial court’s decision at resentencing to impose the upper term on one of the crimes of conviction rather than the previously imposed middle term resulted in the same aggregate sentence it had previously imposed. On appeal, Criado

1 Unspecified statutory references are to the Penal Code.

contends the trial court abused its sentencing discretion and requests remand for resentencing. Although Criado’s original briefing in this appeal argued the trial court erred under Senate Bill 136, both parties agree that resentencing is required pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which was enacted after the original briefing had been completed. (Stats. 2021, ch. 731.) We concur and will remand for resentencing on this basis. In light of this conclusion, we need not address Criado’s other claims of error. I. FACTS AND PROCEDURAL BACKGROUND2 Criado robbed a gas station in Big Sur and threatened a store clerk at the station with a knife. When officers arrested Criado, he had the knife “ ‘clipped on [his] side.’ ” Following a two-day trial, a jury found Criado guilty of robbery (§ 211) and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury also found Criado had personally used a deadly or dangerous weapon during the commission of the robbery. (§ 12022, subd. (b)(1).) Criado waived his right to a jury trial on the remaining enhancements, and the trial court found true the allegations that Criado had served two prior prison commitments. (§ 667.5(b).) One of the prison priors was for check fraud (§ 476) and burglary (§ 459), and the other was for assault with a deadly weapon (§ 245). The probation report prepared for Criado’s original sentencing identified the following five possible factors in aggravation: The crime involved the threat of great bodily harm to the victim as he was performing his job duties (Cal. Rules of Court, rule