People v. Belmonte CA5

Filed 3/28/23 P. v. Belmonte CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F084537 Plaintiff and Respondent, (Super. Ct. No. F09903119) v.

EDUARDO GARCIA BELMONTE, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Peña, J. and Meehan, J.

INTRODUCTION Defendant Eduardo Garcia Belmonte, Jr., was convicted of first degree murder and kidnapping in 2010. The jury also found true a felony-murder special-circumstance allegation the murder was committed while engaged in a kidnapping pursuant to Penal Code section 190.2, subdivision (a)(17)(B), and a vicarious arming enhancement pursuant to section 12022, subdivision (a)(1). (Undesignated statutory references are to the Penal Code.) Defendant filed a petition for resentencing under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) in 2021.1 After appointing defendant counsel and holding a hearing, the court denied defendant’s petition, concluding the special circumstance finding rendered him categorically ineligible for relief. The parties now agree that, under the California Supreme Court’s decision in People v. Strong (2022) 13 Cal.5th 698 (Strong), the court’s order denying the petition should be reversed and the matter remanded for further proceedings. We, too, agree. Accordingly, we reverse the court’s order and remand the matter for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY In 2010, a jury convicted defendant of first degree murder (§ 187; count 1) with a special circumstance that the murder was committed during the commission of a kidnapping (§ 190.2, subd. (a)(17)(B)). In 2021, defendant filed a petition for resentencing pursuant to section 1172.6 (former § 1170.95).2 He averred a charging document had been filed against him that