People v. Sconiers CA2/2

Filed 2/3/21 P. v. Sconiers CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B304595

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA355108) v.

DARYL SCONIERS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Reversed and remanded with directions. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Charles S. Lee and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Daryl Anthony Sconiers, Jr. (defendant) appeals from the judgment entered after he was resentenced upon the granting of his petition for vacatur and resentencing pursuant to Penal Code section 1170.95.1 Defendant contends, and respondent agrees, that the trial court erred in replacing his first degree murder conviction with a second degree murder conviction, and then resentencing him on the second degree murder, rather than on the remaining counts. We agree that this was error, therefore we reverse and remand with directions.

BACKGROUND In 2014, a jury convicted defendant of first degree murder (count 1) and found true the special allegation that a principal was armed with a firearm. The jury also found true the special circumstance alleged pursuant to former section 190.2, subdivision (a)(17), that an accomplice committed the murder during the commission of a first degree burglary and during the commission of attempted first degree robbery. Defendant was also convicted of attempted first degree robbery (count 2) and first degree burglary (count 3), with a principal armed in the commission of the offenses (§ 12022, subd. (a)(1)). On February 26, 2016, defendant was sentenced to life in prison without the possibility of parole (LWOP) as to count 1, plus one year for the firearm allegation. The court imposed a sentence of three years plus a one-year firearm enhancement as to count 2, and a term of six years plus a one-year firearm