People v. Torres CA3

Filed 4/19/22 P. v. Torres CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C091087

Plaintiff and Respondent, (Super. Ct. Nos. SF113972A & STK-CR-FE-2010-0004760) v.

ELVIRA DESIDERIA TORRES,

Defendant and Appellant.

In 2011, defendant Elvira Desideria Torres entered into a negotiated plea in which she pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 and second degree robbery (§ 211). Defendant also admitted that she personally used a firearm during the commission of the voluntary manslaughter (§ 12022.5, subd. (a)). Under the terms of the plea, the trial court sentenced defendant to 22 years in state prison along with various fines and fees.

1 Undesignated statutory citations are to the Penal Code.

1

In 2019, defendant filed a petition for resentencing under former section 1170.95. The trial court summarily denied the petition without appointing legal counsel for defendant or allowing the parties to file additional briefing. Defendant appeals. In her opening brief, defendant contends (1) the trial court erred in summarily denying her petition without appointing legal counsel or giving the parties the opportunity to file additional briefing, and (2) the trial court erred in denying her petition based on her conviction of voluntary manslaughter. In the respondent’s brief, the People argue that the trial court properly denied the petition on grounds that defendant had been convicted of voluntary manslaughter. After the respondent’s brief was filed, the Governor signed Senate Bill No. 775 (2021-2022 Reg. Sess.), which amended section 1170.95, effective January 1, 2022. (Stats. 2021, ch. 551.) In a subsequently filed reply brief, defendant noted that Senate Bill No. 775 amended section 1170.95 so that she was entitled to resentencing. On February 10, 2022, the People filed a supplemental letter brief withdrawing the argument made in the respondent’s brief and asserting that the proper remedy would be to remand this matter with instructions that the trial court appoint legal counsel for defendant, order briefing, and conduct a hearing under section 1170.95, subdivisions (b)(3) and (c). We conclude that the trial court’s denial of defendant’s petition must be reversed and the matter remanded with directions to appoint legal counsel for defendant, order briefing, and hear the matter consistent with section 1170.95. FACTUAL AND PROCEDURAL HISTORY An indictment filed in 2010 alleged that defendant met with the victim, Horacio Pineda, in his car at Oak Park. Defendant sent several text messages that she was with Pineda, that he had a “ ‘couple hundred’ ” dollars, and an unidentified quantity of narcotics. The person receiving the text messages instructed defendant to lure Pineda to Mattie Harrell Park. Defendant succeeded in getting Pineda to go to the location instructed by the texting party. The indictment alleged that defendant “sent a text