People v. Thompson CA3

Filed 6/24/22 P. v. Thompson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091331

Plaintiff and Respondent, (Super. Ct. Nos. 17CF05903, 18CF02111) v.

JAY THOMPSON,

Defendant and Appellant.

Defendant Jay Thompson contends, and the People agree, that his one-year prior prison enhancement imposed pursuant to Penal Code section 667.5, former subdivision (b)1 must be stricken because of changes in the underlying statutory authority. We affirm the conviction but modify the judgment to strike the enhancement and increase defendant’s credits for time served. We also will remand for resentencing.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL HISTORY In November 2017, defendant worked with others to cash payroll checks that were stolen from a business in Oroville. In April 2018, defendant was arrested while coming out of a building with an activated security alarm carrying rubber gloves and a screwdriver. Defendant was charged in Butte County in two cases, the first case with identity theft (§ 530.5, subd. (a)), and forgery related to identity theft. (§ 470, subd. (a).) It was further alleged defendant had six prior prison terms. (§ 667.5, subd. (b).) For the second case, defendant was charged with second degree commercial burglary (§ 459) with the same six prior prison term allegations. (§ 667.5, subd. (b).) In July 2019, defendant pleaded no contest to identity theft in the first case and commercial burglary in the second case for a maximum potential prison term of three years eight months in exchange for dismissal of the other charges and allegations. Previously, in April 2019, defendant pleaded no contest in three cases in Sacramento County to vehicle theft (Veh. Code, § 10851, subd. (a)), attempted second degree burglary (§§ 664, 459), receiving a stolen vehicle (§ 496d, subd. (a)), and two counts of second degree burglary. (§ 459.) On September 5, 2019, the trial court sentenced defendant in the Butte County cases to the upper term of three years for identity theft and eight months (one-third the midterm) for second degree commercial burglary. The court acknowledged defendant had been previously sentenced in Sacramento County for several cases, but those had not yet been fully resolved so the court did not consider them. On December 10, 2019, defendant asked the court to recall his sentence on its own motion based on the Sacramento County cases, stating that without resentencing under all of his cases, he would serve more time on a concurrent sentence than if he had been sentenced consecutively.