People v. Hill CA3

Filed 11/30/22 P. v. Hill CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095428

Plaintiff and Respondent, (Super. Ct. Nos. 21CF00239, 21CF00051) v.

CAROLYN GENE HILL,

Defendant and Appellant.

Defendant Carolyn Gene Hill pleaded no contest to multiple felonies in two separate cases, and the trial court imposed the upper term on the principal count at sentencing. On appeal, defendant challenges the upper term portion of her sentence based on recent legislative amendments to Penal Code section 1170.1

1 Further undesignated statutory references are to the Penal Code.

1

The Attorney General agrees that remand for resentencing is required, as do we. We shall remand for resentencing in accordance with the current law and otherwise affirm the judgment. BACKGROUND The parties stipulated that the facts from the probation report formed the factual basis for defendant’s plea. Butte County Case No. 21CF00051 In August 2020, defendant and two others broke into approximately 100 post office boxes at a United States Post Office in Durham. Defendant later admitted that she participated in the burglary and had attempted to cash a fraudulent check from an organization whose mail was stolen. She was charged with second degree commercial burglary (§ 459, count 1) and identity theft with a prior (§ 530.5, subd. (c)(2), count 2). Butte County Case No. 21CF00239 In December 2020, officers contacted defendant in her storage unit with drug paraphernalia and stolen items in plain view. A subsequent search of her car and storage unit with a warrant revealed that defendant had acquired and possessed numerous stolen and fraudulent checks as well as the personal identifying information of over 40 victims. Initially, defendant was charged with 41 counts of identity theft with a prior (§ 530.5, subd. (c)(2), counts 1-41), and two counts of forgery (§ 476, counts 42-43). The prosecutor later amended the complaint without objection to allege 10 counts of identity theft with a prior. Plea and Sentencing In June 2021, defendant pleaded no contest to 10 counts of identity theft with a prior in case No. 21CF00239, and one count of second degree commercial burglary in case No. 21CF00051 in exchange for dismissal of all remaining counts and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The parties agreed defendant’s sentence would not exceed nine years eight months in prison, and that the