People v. Hicks CA2/2

Filed 4/26/23 P. v. Hicks CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B320008

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA370760) v.

KEVIN HICKS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Robert Perry, Judge. Reversed and remanded with directions.

Richard B. Lennon and Nancy Gaynor, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Appellant and defendant Kevin Hicks appeals from the trial court’s order declining to follow the recommendation of the California Department of Corrections and Rehabilitation (CDCR) to recall defendant’s sentence and resentence him under Penal Code section 1172.11 (former section 1170, subdivision (d)(1)).2 Defendant argues that recent changes to section 1172.1 entitle him to a remand so that he can receive the benefit of a new statutory presumption in favor of resentencing, which he did not receive; the People agree and joins defendant’s request for remand. We concur with both parties and remand to the trial court for further proceedings in accordance with section 1172.1. FACTS AND PROCEDURAL BACKGROUND In 2014, a jury convicted defendant of conspiracy to commit the crimes of robbery and kidnapping for robbery. (§§ 182, subd. (a)(1), 209, subd. (a), 211.) The jury also found true the special allegation that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) At sentencing, the trial court found true the special allegation that defendant had a prior serious felony conviction. (§ 667, subd. (a).) It then sentenced defendant to life in prison,