People v. Duque CA1/2

Filed 1/28/21 P. v. Duque CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A158604 v. LESTER ALFREDO DUQUE, (Contra Costa County Super. Ct. No. 5-160789-4) Defendant and Appellant.

Defendant Lester Alfredo Duque appeals from the trial court’s denial of his resentencing petition brought under Penal Code section 1170.95. The trial court denied the petition on the ground defendant, who had been convicted of voluntary manslaughter pursuant to a plea agreement, did not meet the prerequisite of currently being convicted of first or second degree murder. On appeal, defendant contends section 1170.951 applies to petitioners like him who plead to manslaughter “in lieu of a trial at which the petitioner could be convicted for first or second degree murder,” quoting section 1170.95, subdivision (a)(2). We rejected this argument in People v. Paige (2020) 51 Cal.App.5th 194, 201–202 (Paige). We decline defendant’s invitation to depart from Paige and every other appellate decision that has reached the

1 All undesignated statutory references are to the Penal Code.

1

same conclusion. (See id. at p. 201 [noting “appellate courts have repeatedly rejected the argument” that section 1170.95 applies to defendants who were charged with murder and pleaded to voluntary manslaughter and cataloging cases].) Accordingly, we affirm. BACKGROUND In May 2016, the Contra Costa County District Attorney charged defendant with murder (§ 187, subd. (a); count 1) with special allegations that he personally used a firearm (§ 12022.53, subd. (b)) and that he committed the offense while aiding and abetting a robbery and a burglary (§ 190.2, subd. (a)(17)). Defendant was also charged with attempted home invasion robbery (§§ 664, 211; count 2) and first degree residential burglary (§§ 459, 460, subd. (a); count 3) with a firearm enhancement (§§ 12022.53, subd. (b), 12022.5, subd. (a)) for both counts. In November 2016, defendant reached a plea agreement under which he entered a plea of no contest to voluntary manslaughter (§ 192, subd. (a)) with a firearm enhancement (12022.5) and count 2 (attempted robbery with a firearm enhancement) with a maximum sentence of 25 years in prison, in exchange for dismissal of the remaining charges. In May 2019, defendant filed a petition for resentencing under section 1170.95. Defendant asserted (1) he was charged with first or second degree murder and accepted a plea bargain for manslaughter in lieu of going to trial because he believed he could be convicted of murder under the felony murder rule or natural and probable consequences doctrine, and (2) he could not now be convicted of murder because of changes made to the law effective January 1, 2019. The trial court denied the petition “[b]ecause the fact of a murder conviction is a pre-requisite to obtaining relief under the statute.”