People v. Luengas CA6

Filed 2/4/22 P. v. Luengas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048788 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F13139)

v.

URIEL ALEXANDER LUENGAS,

Defendant and Appellant.

In 2007, defendant Uriel Alexander Luengas pleaded no contest to voluntary manslaughter, attempted second degree robbery, and conspiracy to commit robbery. He admitted he personally and intentionally discharged a firearm in the commission of the offense. The trial court imposed a term of 32 years eight months in state prison. In 2020, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) recommended to the trial court that it recall Luengas’s sentence and resentence him under section 1170, subdivision (d). The trial court declined to recall Luengas’s sentence on the ground he had entered into a stipulated sentence. Luengas appeals from the trial court’s order declining to recall his sentence. He contends the court failed to exercise its statutory discretion to consider recalling the sentence notwithstanding that it was stipulated. The Attorney General, citing newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540),

concedes reversal is required and asks that we remand for a new hearing consistent with the change in law. The Attorney General’s concession is well-taken. We will reverse the order declining to recall the sentence and remand for a new hearing consistent with Assembly Bill No. 1540. I. BACKGROUND The facts of the offense are immaterial. In 2007, Luengas pleaded no contest to three counts: count 1—voluntary manslaughter (Pen. Code, § 192, subd. (a))1; count 2— attempted second degree robbery (§§ 211, 664); and count 3—conspiracy to commit robbery (§ 182, subd. (a)(1)). With respect to counts 2 and 3, he admitted he personally and intentionally discharged a firearm in the commission of the offense. (§ 12022.53, subd. (c).) In accord with a negotiated disposition, the trial court imposed a total term of 32 years eight months in state prison. The court selected count 1 for the principal term and imposed the aggravated term of 11 years for that count. On counts 2 and 3, the court imposed consecutive terms equal to one-third the middle terms—eight months and one year, respectively. For the firearm enhancement, the court imposed a consecutive term of 20 years. In 2020, the Secretary recommended to the trial court that it recall Luengas’s sentence and resentence him under section 1170, subdivision (d). The Secretary’s letter identified an apparent error in the sentence imposed: The trial court had imposed a full consecutive term of 20 years for the firearm enhancement, although the enhancement was attached to a subordinate offense, such that the proper term should have been one-third of 20 years under section 1170.1, subdivision (a).