People v. Shires CA3

Filed 4/19/23 P. v. Shires CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C097077

Plaintiff and Respondent, (Super. Ct. No. NCR76833)

v.

DYLAN FRANKLIN SHIRES,

Defendant and Appellant.

In 2011, defendant Dylan Franklin Shires pleaded guilty to second degree murder, admitted a gang enhancement, and admitted a firearm enhancement pursuant to Penal Code section 12022.53, subdivisions (d) and (e)(1).1 In February 2019, defendant petitioned for resentencing under section 1170.95.2 The trial court ultimately denied

1 Undesignated section references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the

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defendant’s petition in September 2022, finding him ineligible for relief because he was the actual killer based on his admission that he had used a firearm and killed the victim. In the alternative, the court found that defendant was a major participant in the crime and acted with reckless disregard for human life. On appeal, defendant challenges the trial court’s order, arguing (1) his admission of the firearm enhancement did not preclude relief as a matter of law; and (2) the trial court engaged in improper factfinding in concluding he was a major participant in the crime and acted with reckless disregard for life. The People concede the error, and we will reverse and remand the matter. FACTUAL AND PROCEDURAL BACKGROUND Given the nature of the issues presented in this appeal, a detailed recitation of the facts underlying defendant’s convictions is unnecessary. It suffices to say that defendant and three other masked men entered the victim’s home to steal marijuana. A struggle ensued and the victim was killed by a single gunshot wound to the head. Defendant pleaded guilty to second degree murder (§ 187, subd. (a)), admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)), and admitted that he, “as a principal[,] personally and intentionally discharged a firearm . . . , which proximately caused great bodily injury and death to [the victim]” within the meaning of section 12022.53, subdivisions (d) and (e)(1)).3 The trial court sentenced defendant to state prison for an indeterminate term of