People v. Huante CA3

Filed 10/19/21 P. v. Huante CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092983

Plaintiff and Respondent, (Super. Ct. No. 11F02676)

v.

FRED HUANTE,

Defendant and Appellant.

Defendant, Fred Huante, appeals the trial court’s denial of his petition for resentencing under Penal Code1 section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015). He contends: 1) the trial court erred by denying his petition as to his murder conviction without an evidentiary hearing; and 2) he is entitled to resentencing for his conviction for attempted murder. The People properly concede the claim as to defendant’s murder conviction. We reverse and remand the order as to defendant’s murder conviction and affirm the order as to the attempted murder conviction.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In 2013, a jury found defendant and his codefendant, Vincent Rivera, guilty of one count of first degree murder, three counts of attempted murder, and one count of shooting into an occupied motor vehicle. Defendant appealed. We affirmed the attempted murder and shooting into an occupied vehicle convictions. However, we conditionally reversed the first degree murder conviction based on instructional error that permitted the jury to find uncharged conspiracy liability for first degree murder under the natural and probable consequences doctrine. We remanded the matter and gave the People the option of accepting a reduction of the conviction to second degree murder or retrying defendant for first degree murder on a proper legal theory. On remand, the prosecution accepted the reduction of the murder conviction to second degree murder. The trial court sentenced defendant to 15 years to life on the murder conviction (count one) and seven years to life on each attempted murder conviction (counts two, five, and six), plus a 25-year-to-life firearm enhancement on one attempted murder conviction (count five) and a 20-year firearm enhancement on a separate attempted murder conviction (count six). In 2019, defendant filed a section 1170.95 petition for resentencing. The trial court appointed counsel. After briefing, the trial court denied the petition. The trial court concluded defendant’s attempted murder convictions were not eligible for resentencing under section 1170.95. As to the murder conviction, relying on our appellate opinion, the trial court found, based on the evidence, a jury could still find defendant guilty of murder under various theories; as an aider or abettor to first or second degree murder or as a conspirator to commit murder. Thus, the court concluded the record demonstrated as a matter of law that defendant could be convicted of murder under multiple theories, and no evidentiary hearing was required.