People v. Marquez CA4/3

Filed 3/24/23 P. v. Marquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G060921

v. (Super. Ct. No. FSB038602-1)

MARIO MARQUEZ, OPI NION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San Bernardino, Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, Alan L. Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent. * * * Mario Marquez appeals from the trial court’s order denying—at the prima 1 facie stage of the proceedings—his petition for resentencing under Penal Code section 1172.6. The Attorney General concedes, and we agree, that the order must be reversed because a trial court may not at the prima facie stage engage in factfinding regarding the petitioner’s culpability; the court may only deny relief if the petitioner is ineligible for resentencing as a matter of law. (E.g., People v. Pacheco (2022) 76 Cal.App.5th 118, 128 (Pacheco).) If the record of conviction does not support denying the petition as a matter of law (ibid.), and the “prima facie showing that the petitioner is entitled to relief” thus remains intact, the court “shall issue an order to show cause” and “shall hold a hearing to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner.” (§ 1172.6, subds. (c), (d)(1).) That is the case here. We therefore reverse the order denying Marquez’s petition and remand the matter for the trial court to issue an order to show cause and conduct the 2 requisite evidentiary hearing.