People v. Viscaina CA1/1

Filed 12/31/20 P. v. Viscaina CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159426 v. FELICIA ANN VISCAINA, (Contra Costa County Super. Ct. No. 5-1314970) Defendant and Appellant.

MEMORANDUM OPINION1 After defendant Felicia Ann Viscaina was charged with murder (Pen. Code, § 1872), accompanied by allegations of a strike (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)), she pled no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted both enhancements. She was sentenced to a total prison term of 25 years. Pursuant to section 1170.95, she subsequently sought resentencing. Counsel was appointed and the prosecution filed opposition. The trial court denied the petition, ruling defendant was ineligible given that her conviction was for manslaughter.

This appeal is appropriately resolved by way of memorandum opinion 1

pursuant to California Standards of Judicial Administration, section 8.1, subdivisions (1) and (3). All further statutory references are to the Penal Code unless 2

otherwise indicated.

1

Section 1170.95, subdivision (a)(1)-(3) provides: “A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. “(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. “(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”