People v. Bustos CA2/3

Filed 7/1/22 P. v. Bustos CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B311419

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA314861) v.

SANDRA FABIOLA BUSTOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Reversed with directions. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Sandra Fabiola Bustos appeals from an order denying her request for resentencing under former Penal Code1 section 1170, subdivision (d),2 arguing, among other things, that remand for a new resentencing hearing is necessary under newly enacted Assembly Bill No. 1540. The Attorney General concedes this point, and we agree that the matter must be remanded for a new resentencing hearing in accordance with the newly enacted legislation. BACKGROUND In 2009, a jury convicted Bustos of one count of first degree murder and two counts of premeditated attempted murder, with true findings on firearm and gang allegations on each count. The trial court sentenced Bustos to 50 years to life in prison. In 2011,

1 All further undesignated statutory references are to the Penal Code. 2 Bustos’s notice of appeal states that she appeals only from the February 18, 2021 order denying her section 1170.95 motion. However, by that date, the section 1170.95 motion had been withdrawn, and therefore the trial court only had the occasion to adjudicate Bustos’s request for recall and resentencing under former section 1170, subdivision (d)(1). Nonetheless, the court’s minute order from that date invokes only section 1170.95. Despite the apparently erroneous citation in Bustos’s notice of appeal and the court’s minute order, we liberally construe the notice to encompass the determination under former section 1170, subdivision (d)(1), given that it identifies the date of the order being appealed and that the People have suffered no prejudice. (Cal. Rules of Court, rule 8.100(a)(2); Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.)