People v. Albarran CA4/1

Filed 6/9/21 P. v. Albarran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077893

Plaintiff and Respondent,

v. (Super. Ct. No. INF060734)

MARCOS ANTONIO ALBARRAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

In 2013, a jury convicted Marcos Antonio Albarran of first degree

murder (Pen. Code,1 § 187, subd. (a)) and attempted murder (§§ 664 & 187, subd. (a)), among other offenses. Albarran appealed and this court reversed the judgment in an unpublished opinion. (People v. Albarran (July 6, 2015, D067418) [nonpub. opn.].) The case was remanded to the superior court. On remand, Albarran entered into a plea agreement under which he pleaded guilty to one count of voluntary manslaughter for the benefit of a street gang. (§§ 192 & 186.22, subd. (b).) He also admitted three counts of attempted murder. (§§ 187 & 664.) Albarran was sentenced to a determinate term of 16 years in prison. In June 2020, Albarran filed a pro. per. petition for resentencing under section 1170.95. Although he was not convicted of murder, he contended he was still entitled to resentencing. The trial court denied the petition, finding Albarran’s convictions for manslaughter and attempted murder did not qualify him for relief under section 1170.95. Albarran appeals, contending his convictions for manslaughter and attempted murder are eligible for resentencing because he was originally prosecuted under theories of felony murder and natural and probable consequences. His briefs on appeal acknowledge existing case law is virtually unanimous that the essential predicate for relief under this particular statute is a conviction for either first or second degree murder. He contends that all of the cases reaching such conclusions were wrongly decided. We will reject Albarran’s arguments and follow the cases from this court and others which have soundly rejected his arguments and affirm.