People v. Moriwaki CA2/4

Filed 5/28/24 P. v. Moriwaki CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B320915

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA174739) v.

AURELIUS DAVID MORIWAKI,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Reversed and remanded with instructions. William G. Holzer, 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, Steven E. Mercer and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Aurelius David Moriwaki appeals from the trial court’s summary denial of a request by the Department of Corrections and Rehabilitation (CDCR) that appellant be resentenced under former Penal Code section 1170, subdivision (d)(1).1 The People agree that the matter should be remanded. We agree, reverse the order denying relief, and remand for proceedings consistent with the requirements of section 1172.1. BACKGROUND On February 16, 2000, the People filed an amended information charging appellant with the September 1998 murder of Chrissy Ann Mendivil (§ 187, subd. (a)). The information further alleged that appellant personally used a firearm (§ 12022.5, subd. (a)(1)) and personally and intentionally discharged a firearm, proximately causing great bodily injury and death to Mendivil (§ 12022.53, subd. (d)(3)). On March 8, 2000, a jury found appellant guilty of second degree murder and found the enhancement allegations true. The trial court subsequently found that appellant was legally sane at the time of the crime. The trial court sentenced appellant to 15 years to life for the murder and 25 years to life for the section 12022.53 enhancement. It imposed and stayed a sentence of 10 years for the section 12022.5 enhancement pursuant to section 654. A different panel of this court affirmed the judgment on direct appeal. (People v. Moriwaki (May 30, 2001, B140771) [nonpub. opn.].) At some point, the CDCR sent a letter to the trial court requesting that the trial court recall appellant’s sentence and resentence him pursuant to former section 1170, subdivision