People v. Banuelos CA3

Filed 11/21/22 P. v. Banuelos CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C094509

Plaintiff and Respondent, (Super. Ct. No. 97F05444)

v.

RUBEN ANTONIO BANUELOS,

Defendant and Appellant.

Defendant Ruben Antonio Banuelos was sentenced to 51 years to life for shooting and killing S.P. After defendant had served about 20 years of his sentence, the California Department of Corrections and Rehabilitation (CDCR) recommended the trial court recall and resentence defendant “based upon his exceptional conduct while incarcerated.” The trial court denied the CDCR’s recommendation and this appeal followed. While defendant’s appeal was pending, the Governor signed into law Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719) (Assem. Bill 1540), which

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clarified the required procedures the trial court must implement when the CDCR recommends a defendant is suitable for recall and resentencing. Defendant now argues that the benefits of Assem. Bill 1540 and other recent legislation apply to him retroactively and entitle him to resentencing. The People concede defendant is entitled to reconsideration of the CDCR’s recommendation, but do not concede defendant is entitled to resentencing. We accept the People’s concession and reverse to allow the trial court to reconsider the CDCR’s recommendation, but we decline to reach defendant’s request for resentencing.

FACTS AND HISTORY OF THE PROCEEDINGS In 1997, defendant shot and killed S.P. outside of a billiards room because he thought S.P. was “hitting on” his girlfriend. In 1998, a jury found defendant guilty of second degree murder with a firearm (Pen. Code, §§ 187, 667, subd. (e)(1)) (undesignated statutory references are to the Penal Code) and being a felon in possession of a firearm (§ 12021, subd. (a)). The trial court sustained a firearm enhancement (§ 12022, subd. (a)) and a prior felony conviction enhancement (§ 667, subd. (a)), and sentenced defendant to 30 years to life for the murder conviction, 15 years for the prior felony conviction and firearm enhancements, and six years for being a felon in possession of a firearm. The CDCR filed a letter with the trial court on September 8, 2020, which recommended the court recall defendant’s 1998 sentence and resentence him under former section 1170, subdivision (d)(1). In its recommendation, the CDCR recounted defendant’s positive participation in rehabilitative programming; lack of serious disciplinary history in the preceding six years; 45 laudatory achievements and programming accomplishments, noteworthy educational performance; and positive impact with youth offenders.