People v. Chavez CA5

Filed 10/19/22 P. v. Chavez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F083845 Plaintiff and Respondent, (Super. Ct. No. SC076313A) v.

BARBARA LYNN CHAVEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.

INTRODUCTION Petitioner Barbara Lynn Chavez petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on her conviction for first degree murder. The superior court denied the petition at the prima facie stage on the ground petitioner was convicted of first degree murder and the jury found true a special circumstance allegation pursuant to section 190.2, subdivision (a)(17)(A). (See § 1172.6, subd. (c).) On appeal, petitioner argues the denial of her petition at the prima facie stage was erroneous because the special circumstance finding does not bar relief. We agree. We therefore reverse the superior court’s order denying the petition and remand with directions to issue an order to show cause. PROCEDURAL HISTORY2 In 1999, an information was filed charging petitioner, along with codefendant Regina Eason, with first degree murder (§ 187, subd. (a); count 1), burglary (§ 460, subd. (b); count 2), attempted robbery (§§ 212.5, subd. (c), 664; count 3), and conspiracy to commit robbery (§§ 182, subd. (a)(1), 212.5, subd. (c); count 4). As to count 1, the information alleged robbery and burglary special circumstances (§ 190.2, subd. (a)(17)(A), (G)). As to counts 1 through 3, the information also alleged a firearm enhancement (§ 12022, subd. (a)(1)). A jury found petitioner guilty on all counts and found all allegations true.3 On count 1, petitioner was sentenced to a term of life without

1 Undesignated statutory references are to the Penal Code. Former section 1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion. 2 We dispense with a statement of facts, as the facts underlying the offenses are not pertinent to the issues raised on appeal. 3 The jury found one of four overt acts alleged in support of the conspiracy to be not true. The remaining overt acts were found true.