People v. Munguia CA4/1

Filed 1/7/22 P. v. Munguia CA4/1 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D078641

Plaintiff and Respondent,

v. (Super. Ct. No. RIF132924)

SALVADOR MUNGUIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Reversed and remanded with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

In 2009, a jury convicted Salvador Munguia and his codefendant of

attempted murder (Pen. Code,1 §§ 187 and 664); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)); and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that Munguia was a principal and that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) and (e)). Munguia was sentenced to an indeterminate term of 25 years to life plus seven years in prison. Munguia appealed, and this court affirmed the judgment in an unpublished opinion. (People v. Munguia et al. (D056080, Dec. 21, 2010).) In 2020, Munguia filed a petition for resentencing under section 1170.95. The trial court summarily denied the petition on the grounds section 1170.95 does not apply to convictions for attempted murder. Munguia appealed and this court affirmed the order in an unpublished opinion. Relying on prior opinions of this court and other appellate courts we concluded the resentencing procedure of section 1170.95 did not apply to convictions for attempted murder. While this case was pending on appeal, the Legislature enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which amended section 1170.95. The amendments included clarifying that convictions for attempted murder and manslaughter could be eligible for the resentencing process under section 1170.95. We granted Munguia’s petition for rehearing. We requested and received supplemental briefing from the parties on the effect of Senate Bill 775 on this case. The parties are in basic agreement. Munguia contends the case must be remanded for an evidentiary hearing and the issuance of an order to show