People v. Franco CA3

Filed 11/25/24 P. v. Franco CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C099887

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-2005-0008324, v. SF096125A)

CARLOS BAZAN FRANCO,

Defendant and Appellant.

A jury convicted defendant Carlos Bazan Franco of second degree murder and found not true an allegation that the murder was intentional and carried out by the defendant for financial gain. The trial court imposed a sentence of 19 years to life in prison, and a different panel of this court affirmed the judgment. (People v. Franco (Mar. 4, 2009, C055520) [nonpub. opn.].) In describing the circumstances of the murder -- a background upon which we do not rely for our current analysis -- this court explained that the victim’s body had been found burned and decomposed in an orchard,

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and a pathologist could not determine the precise cause of death. (Ibid.) But there was evidence defendant’s codefendants had tortured the victim and that defendant ultimately killed him.1 (Ibid.) More than a decade later, defendant filed a petition for resentencing under Penal Code section 1172.6.2 After appointing counsel and receiving briefing from the parties, the trial court summarily denied the petition. Defendant appeals from the denial, claiming (1) the record of conviction does not establish that he is ineligible for relief as a matter of law, and (2) the trial court engaged in improper factfinding at the prima facie stage. We need not address defendant’s second contention because we find merit in the first. The record of conviction does not establish, at the prima facie stage, that defendant is ineligible for relief as a matter of law. Accordingly, we will reverse the trial court’s order and remand the matter with directions for the trial court to issue an order to show cause under section 1172.6, subdivision (c), and to conduct a hearing under subdivision (d). DISCUSSION “The Legislature enacted Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.), which became effective on January 1, 2019,] ‘to more equitably sentence offenders in accordance with their involvement in homicides.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).) As relevant here, Senate Bill No. 1437 added a new requirement that, except in cases of felony murder, “in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); Curiel, at p. 449.)