People v. Desilva CA3

Filed 2/24/23 P. v. Desilva CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096566

Plaintiff and Respondent, (Super. Ct. Nos. 21CF02914, 22CF01073) v.

MARY JEANNETTE DESILVA,

Defendant and Appellant.

Defendant Mary Jeannette Desilva pleaded no contest to identity theft and failure to appear and the trial court sentenced her to the middle term of two years for identity theft and to a consecutive term of eight months (one-third the middle term) on a separate charge of failure to appear on her own recognizance. Defendant argues the trial court erred in not sentencing her to the lower term because she was a youthful offender under Penal Code section 1170, subdivision (b)(6), as amended by Senate Bill No. 567 (2021-

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2022 Reg. Sess.) (Senate Bill 567).1 Because the trial court made the findings required to impose the middle rather than the lower term in this case, and those findings are supported by the record, we conclude any arguable error was harmless and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A June 4, 2021 complaint charged defendant with two counts of identity theft (Pen. Code, § 530.5, subd. (a))2 and two counts of forgery. (§ 470, subd. (d).) It also alleged defendant had one or more serious and violent felony convictions under sections 667, subdivision (d) and 1170.12, subdivision (b).3 Because defendant failed to appear at a subsequent hearing, she was charged in a second case with failure to appear and that she committed that offense while she was on bail or own recognizance release. (§§ 1320, subd. (b), 12022.1.) We take the following facts from the probation report. On January 1, 2021, someone stole 40 payroll checks from a business mailbox belonging to JA Labor Services Inc. Throughout January and February 2021, a woman attempted to cash some of the checks at a local market, a check cashing business, two different casinos, and a bank.

1 While defendant cites Assembly Bill No. 124 (2021-2022 Reg. Sess.), three bills amending section 1170 were enacted and signed into law on the same date. (Stats. 2021, ch. 695, § 5, eff. Jan. 1, 2022 (Assem. Bill No. 124); Stats. 2021, ch. 719, § 2, eff. Jan. 1, 2022 (Assem. Bill No. 1540) (2021-2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022 (Sen. Bill No. 567).) Senate Bill 567—which takes precedence because it was enacted last (Gov. Code, § 9605)—states that if all three bills amending section 1170 are enacted and become effective on or before January 1, 2022, and Senate Bill 567 is enacted last, then section 1.3 of that bill, which incorporates the amendments proposed by Senate Bill 567, Assembly Bill No. 124, and Assembly Bill No. 1540, shall become operative. (Stats. 2021, ch. 731, § 3.) We shall refer to the operative bill. 2 Undesignated statutory references are to the Penal Code. 3 Specifically, defendant was convicted on March 1, 2021, of robbery under section 211.