In re Lucero CA4/2

Filed 8/29/13 In re Lucero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re NATHAN LEE LUCERO, E058986

on Habeas Corpus. (Super.Ct.No. RIC1305180)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Petition granted

in part and denied in part, with directions.

Nathan Lee Lucero, in pro. per., for Petitioner.

Kamala D. Harris, Attorney General, Collette C. Cavalier, Deputy Attorney

General, for Respondent.

DISCUSSION

In this matter, the People agree that the record clearly indicates that the trial court

was unaware that it had the discretion to sentence petitioner to a term of 25 years to

life rather than a mandatory term of life without the possibility of parole. (Pen. Code,

§ 190.5.) Hence, the petition must be granted to the extent that we will direct the trial

court to schedule a new sentencing hearing and permit the filing of briefs on the

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appropriate term. As the People concede that relief is appropriate, we may act without

issuing an order to show cause. (Cf. People v. Duvall (1995) 9 Cal.4th 464 and People v.