People v. Criado CA3

BACKGROUND

On October 31, 1995, defendant, an inmate at Deuel Vocational Institution, was escorted from his cell to the shower by two correctional officers. Among his shower items were a bar of soap and a razor. After defendant had been showering for about 15 minutes, the officers heard a crunching noise. Defendant handed the pieces of a broken razor to one of the officers, who noticed that the blade was missing. A search of defendant’s person and clothes did not result in the discovery of the blade. When an officer started searching defendant’s shower items, defendant whispered to the officer in Spanish, “Está in la Tira,” or, “It’s in the tier.” The officer found one-half of the razor blade in defendant’s bar of soap. Defendant was convicted of possessing a deadly weapon while in prison (§ 4502) with two prior strikes. He was sentenced to 25 years to life. Defendant filed a petition for recall of sentence in May 2013. The trial court denied the petition, finding him ineligible because he was armed during the commission of the current offense.

DISCUSSION

I Defendant contends he could not be found ineligible for resentencing under section 1170.126 because it was never pled and…