People v. Avila CA3

Filed 12/16/22 P. v. Avila CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092546

Plaintiff and Respondent, (Super. Ct. No. 96F07199)

v. OPINION ON TRANSFER

CRUZ ARMANDO AVILA,

Defendant and Appellant.

Petitioner Cruz Armando Avila, along with accomplices Pablo Cobb and David Reynoso, entered the home of victim Nicholas Godinez while armed and attempted to rob him. Multiple guns were fired, during which Cobb shot and killed Godinez. A jury found petitioner guilty of first degree murder and found true the special-circumstance allegation that the murder occurred during the commission or attempted commission of burglary and robbery. In 2019, petitioner filed a petition for resentencing pursuant to

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Penal Code1 section 1172.6.2 The trial court denied the petition on the basis that petitioner was ineligible for section 1172.6 relief as a matter of law. Petitioner appealed, arguing he demonstrated a prima facie entitlement to relief, and that the trial court should have issued an order to show cause and conducted an evidentiary hearing. We disagreed and affirmed the trial court’s order. (People v. Avila (Nov. 5, 2021, C092546) [nonpub. opn.].) Our Supreme Court granted review but deferred further action pending the disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision, our Supreme Court transferred this matter back to us with directions to vacate our decision and reconsider in light of Strong. We now conclude the trial court’s denial of the petition is inconsistent with section 1172.6 and Strong. Accordingly, we reverse and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND For the reasons detailed in our discussion, we need not provide additional detail of the factual background of petitioner’s crime. Suffice it to say, in 1996, petitioner, Cobb, and Reynoso entered Godinez’s home while armed and attempted to rob him. (People v. Avila (May 2, 2002, C029883) [nonpub. opn.].) Gunfire broke out, during which petitioner, Reynoso, and Godinez were shot. (Ibid.) Godinez died at the scene. (Ibid.) Although he did not shoot the bullet that killed Godinez, petitioner was charged with murder. In 1998, a jury found petitioner guilty of first degree murder, burglary, and