People v. Arriaga CA2/5

Filed 4/28/21 P. v. Arriaga CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B305200

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA087810) v.

MARIO FRANKIE ARRIAGA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Reversed and remanded. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Mario Frankie Arriaga appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code1 section 1170.95. Defendant contends the court erred by concluding that Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95 were unconstitutional. The Attorney General concedes, and we agree, that the court erred. We therefore reverse and vacate the order.

II. BACKGROUND

In 2011, a jury convicted defendant of murder (§ 187, subd. (a)), and found true the allegations that the murder was for the benefit of a criminal street gang (§ 186.22, subd. (b)(4) and a principal personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subds. (b)–(e).) A prior panel of this division affirmed defendant’s conviction. (People v. Arriaga (Oct. 11, 2012, B233990) [nonpub. opn.].) On December 12, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. On February 13, 2020, the trial court summarily denied defendant’s resentencing petition, finding that section 1170.95 and Senate Bill 1437: unconstitutionally amended section 190 as passed by Proposition 7 in 1978; unconstitutionally amended section 189 as passed by Proposition 115 in 1990; and permitted final judgments to be vacated in violation of Article 1, section 28, subdivision (a)(6), and section 29 of the California Constitution, which provide that “‘victims of crime are entitled to finality in their criminal cases,’”