People v. Benavidez CA5

Filed 10/28/24 P. v. Benavidez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087162 Plaintiff and Respondent, (Super. Ct. No. VCF333946) v.

SAUL BENAVIDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Jean M. Marinovich, 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, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Franson, J. and Peña, J.

INTRODUCTION In 2018, appellant Saul Benavidez pleaded no contest to one count of attempted murder (Pen. Code, §§ 664/187, subd. (a)).1 Appellant also pleaded no contest to a gang enhancement (§ 186.22, subd. (b)(1)(A)), a firearm enhancement (§ 12022.5, subd. (a)), and a great bodily injury enhancement (§ 12022.7, subd. (a)). He admitted a prior strike conviction. In 2018, appellant was sentenced to prison for an aggregate term of 27 years. In 2023, appellant filed a petition for resentencing, alleging he could no longer be convicted of attempted murder due to retroactive changes in the law. The trial court appointed counsel to represent appellant, and the court received briefing from the parties. After hearing oral argument, the court denied the petition at the prima facie stage. We agree with appellant that the denial was improper. The record of conviction at the prima facie stage does not “establish conclusively” that appellant is ineligible for resentencing relief. (See People v. Strong (2022) 13 Cal.5th 698, 708.) We will reverse and remand for further proceedings. BACKGROUND Because this matter did not go to trial, we summarize background facts from the preliminary hearing. In doing so, we recognize that appellant contends such evidence cannot be used to deny his petition at the prima facie stage. (See § 1172.6, subd. (d)(3) [hearsay evidence from a preliminary hearing may not be used to deny a petition for resentencing].) At the preliminary hearing, two law enforcement officers relayed hearsay statements from the victims and witnesses about appellant’s role in this shooting. According to the totality of the evidence from the preliminary hearing, appellant had a verbal dispute with one victim, while the second victim was nearby. Appellant pulled out