People v. Reck CA5

Filed 9/10/24 P. v. Reck CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F087215 Plaintiff and Respondent, (Super. Ct. Nos. VCF285703, v. VCF306715B )

MICHAEL RAY RECK, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Jennifer Conn Shirk, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Eric Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION On September 17, 2014, in case No. VCF285703, appellant Michael Ray Reck pleaded no contest to voluntary manslaughter (Pen. Code,1 § 192) and admitted to personally using a firearm in the commission of the offense (§ 12022.5, subd. (a)). In addition, he admitted to having served one prior prison term (former § 667.5, subd. (b)). On October 23, 2014, in case No. VCF306715B, Reck pleaded no contest to two counts of assault by means of force likely to inflict great bodily injury (§ 245, subd. (a)(4)). On January 14, 2015, the trial court sentenced Reck to an aggregate determinate term of 24 years, consisting of 22 years for his conviction in case VCF285703, plus two years for his conviction in case No. VCF306715B. On June 28, 2023, the trial court recalled Reck’s sentence and struck the prior prison term enhancement (former § 667.5, subd. (b)), reducing Reck’s prison sentence to 23 years. On July 24, 2023, Reck filed a petition seeking resentencing on his conviction for voluntary manslaughter under section 1172.6—his third petition. The trial court denied his petition. On appeal, Reck claims that trial counsel’s waiver of his (Reck’s) presence at his resentencing hearing was improper, and that the trial court erred by failing to conduct a full resentencing under section 1172.75. He further contends that the trial court erred by denying his petition for resentencing under section 1172.6. The Attorney General concedes that Reck’s first claim of error has merit but submits that his second claim does not. We agree.