People v. Pacheco CA4/1

Filed 3/28/25 P. v. Pacheco CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083599

Plaintiff and Respondent,

v. (Super. Ct. No. FVA1200768-3)

ANDREW PACHECO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Reversed and remanded with instructions. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Seth M. Friedman and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent. Andrew Pacheco appeals from a trial court’s order denying his petition for resentencing under Penal Code section 1172.6. The People concede error. Resolving this matter by memorandum opinion (see generally People v.

Garcia (2002) 97 Cal.App.4th 847), we accept the concession, reverse, and remand with directions to the trial court to issue an order to show cause. I. In 2015, Pacheco pled guilty to murder (Pen. Code, § 187(a)) and admitted it was willful, deliberate, and premeditated. He was sentenced to 25 years to life in prison. In 2023, Pacheco petitioned the trial court to vacate his conviction and resentence him under section 1172.6. Pacheco alleged (1) the information filed against him allowed the prosecution to proceed under a felony murder theory or the natural and probable consequences doctrine, (2) he pled guilty, and (3) he could not now be convicted of murder. The trial court summarily denied Pacheco’s petition. It judicially noticed and based its decision on Pacheco’s admission at his codefendants’ section 1172.6 evidentiary hearing that he was the actual killer. II. Pacheco claims the trial court engaged in impermissible factfinding at the prima facie stage by relying on his admission to conclude he was the actual killer and ineligible for resentencing under section 1172.6. We review his claim de novo. (People v. Harden (2022) 81 Cal.App.5th 45, 52.) Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the felony murder and natural and probable consequences doctrines to ensure “murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) Senate Bill No. 1437 amended section 188 to require all principals to murder to act with malice aforethought, except as to felony murder. (§ 188(a)(3).) For a felony murder conviction, the participant must