People v. Delange CA2/6

Filed 1/3/23 P. v. Delange CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B312629 (Super. Ct. No. YA083919 (Los Angeles County) Plaintiff and Respondent,

v.

MORGAN TYLER DELANGE,

Defendant and Appellant.

Morgan Tyler Delange appeals an order denying his petition for resentencing pursuant to former Penal Code section 1170.95 (renumbered section 1172.6 without substantive change).1 The Attorney General concedes that the trial court

All statutory references are to the Penal Code unless 1

stated otherwise.

erred by not granting the resentencing petition pursuant to section 1172.6, subdivision (d)(2).2 (People v. Flint (2022) 75 Cal.App.5th 607, 614.) Accordingly, we reverse the order, vacate the murder conviction, and remand for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“full resentencing rule” authorizes trial court to modify every aspect of sentence upon resentencing].) FACTUAL AND PROCEDURAL HISTORY Delange’s resentencing petition concerns his 2014 conviction of first degree murder, kidnapping, first degree burglary, second degree robbery, and vehicle theft. (§§ 187, subd. (a), 189, 207, subd. (a), 459, 211; Veh. Code, § 10851, subd. (a).) At Delange’s trial, the prosecution asserted that its theory of liability for first degree murder was felony murder committed during a robbery or burglary. The jury decided, however, that the felony-murder special-circumstance allegation was not true. (§ 190.2, subd. (a)(17).) Delange appealed. We rejected arguments based upon Miranda v. Arizona (1966) 384 U.S. 436, 479 [16 L.Ed.2d 694, 726] and sentencing, and affirmed. (People v. Alfano & Delange (Sept. 26, 2016, B258685) [nonpub. opn.].) The trial court sentenced Delange to a prison term of 33 years to life, consisting of a 25-years-to-life term for the murder conviction plus an eight-year upper term for the kidnapping conviction. The court imposed sentence for the burglary, robbery,