People v. Nunez CA4/3

Filed 12/1/22 P. v. Nunez CA4/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060747

v. (Super. Ct. No. 00CF2284)

EDUARDO NUNEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Reversed and remanded. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

FACTS AND PROCEDURAL HISTORY Defendant Eduardo Nunez was convicted by a jury of second degree murder, conspiracy to commit assault, shooting at an occupied vehicle, and street terrorism. Additionally, the jury found true certain special circumstances triggering sentencing enhancements: that the crime was committed for the benefit of a criminal street gang, and that a codefendant discharged a firearm during the crime. The trial court sentenced defendant to 40 years to life. In 2019, the Legislature enacted Penal Code former section 1170.95 (now 1 Penal Code § 1172.6) which allowed those, like defendant, convicted of murder under a natural and probable consequences theory, to petition for resentencing. (Stats. 2018, ch. 1015.) Defendant filed a petition under former section 1170.95. Initially, the trial court denied the petition, deeming former section 1170.95 unconstitutional. We reversed this decision in an unpublished opinion in People v. Nunez (Oct. 22, 2020, G057999), and on remand the trial court granted the petition and resentenced defendant to 15 years to life. Defendant timely appealed from his new sentence, arguing he is entitled to the benefit of various amendments to the Penal Code enacted since his original sentencing. DISCUSSION Defendant’s appeal raises two separate issues: (1) whether defendant’s sentence is final for purposes of In re Estrada (1965) 63 Cal.2d 740 (Estrada) retroactivity; and (2) whether each of four amendments to California’s sentencing laws, Assembly Bill No. 124 (2021-2022 Reg. Sess) (Stats. 2021, ch. 695 § 5; Assembly Bill No. 124), Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1; Assembly Bill No. 518), Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 669; Assembly Bill No. 333), and Senate Bill No. 81 (2021-2022 Reg. Sess.)