People v. Huante CA3

Filed 1/31/22 P. v. Huante CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER

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. In an unpublished opinion, we reversed and remanded the order as to defendant’s murder conviction and affirmed the order as to the attempted murder conviction. (People v. Huante (Oct. 19, 2021, C092983 [nonpub. opn.].) The Supreme Court granted review and transferred the

1 Undesignated section references are to the Penal Code.

1

matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775. Upon reconsideration, we agree with defendant he is entitled to resentencing on both his murder and attempted murder convictions. Accordingly, we will reverse and remand with instructions to the trial court to appoint counsel for defendant and issue an order to show cause for further proceedings under section 1170.95. BACKGROUND In 2011, in retaliation for the Flores brothers robbing him of drugs, defendant and codefendant Vincent Rivera committed two separate shootings. First, mistaking Paul Amaro’s 1996 black Chevy Impala for Frankie Flores’s, defendant shot at the Amaro brothers and injured Paul. Then, a few weeks later, the Flores brothers were at a mall in Frankie’s Impala. Defendant and Rivera pulled up alongside them. Rivera had a gun. Rivera and defendant got out of their truck and, as the Flores brothers tried to leave, Rivera started shooting. Michael was shot twice, and Frankie was shot six times, including fatal shots to his lung and heart. 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