People v. Albarran CA4/1

Filed 2/28/22 P. v. Albarran CA4/1 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Reversed and remanded. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Raglan, Acting 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 Albarran appealed and this court reversed the judgment in an unpublished opinion.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.].)2 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 filed a timely notice of appeal. In June 2021, this court issued an unpublished opinion affirming the trial court’s order denying Albarran’s petition for resentencing. (People v. Albarran (June 9, 2021, D077893) [nonpub. opn.].) We held that persons convicted of voluntary manslaughter were not eligible for resentencing under section 1170.95. While this case has been pending, the Legislature enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775) which amended