People v. Albarran CA4/1

Filed 11/9/23 P. v. Albarran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081608

Plaintiff and Respondent,

v. (Super. Ct. No. SCD187650) ODILON ALBARRAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Reversed and remanded with directions. Aaron J. Schechter, 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, Eric A. Swenson and James H. Flattery III, Deputy Attorneys General, for Plaintiff and Respondent.

After his 2006 conviction for murder, Albarran petitioned the court

pursuant to Penal Code1 section 1172.62 to vacate his murder conviction and for resentencing. After hearing oral argument, the court denied the petition without issuing an order to show cause. On appeal, Albarran contends that the trial court erred when it engaged in factfinding at the prima facie stage of the proceedings, and further argues that the error was prejudicial to him. The Attorney General agrees with Albarran on both contentions. We accept the concessions, and we will remand the matter with instructions for further proceedings. BACKGROUND AND PROCEDURAL FACTS In 2005, Albarran was charged with murder, in violation of section 187, subdivision (a), together with an allegation of personal use of a deadly weapon, a knife, and a special circumstances allegation of murder while engaged in a robbery. The charged offense involved a homicide in the course

of a robbery by Albarran and another person.3 A jury found that Albarran was guilty of first degree murder, and further found that he personally used a knife in the commission of the murder and that he committed the murder while engaged in the commission of a robbery. The court sentenced Albarran to life without the possibility of parole, plus a consecutive one-year term. This court affirmed the judgment on direct appeal. (People v. Albarran (Jan. 13, 2009, D050959) [nonpub. opn.].)