People v. Marquez CA5

Filed 6/28/24 P. v. Marquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087248 Plaintiff and Respondent, (Super. Ct. No. BF164183B) v.

DANIEL MADRIGAL MARQUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Elizabet Rodriguez, Judge. John L. Staley, 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, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Peña, J.

INTRODUCTION In 2019, appellant pleaded no contest to voluntary manslaughter and related enhancements in lieu of going to trial for murder. Four years later, he filed a Penal Code section 1172.61 petition for resentencing. The trial court denied the petition, finding appellant is ineligible for resentencing because he was convicted after Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective. On appeal, appellant contends the trial court erred in denying his resentencing petition based on the date of his conviction. We conclude the trial court did not err because appellant was convicted under the current law. Accordingly, appellant cannot show that he “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) We also find the trial court’s failure to appoint counsel was harmless error. We affirm. BACKGROUND In 2016, the Kern County District Attorney’s Office filed an information charging appellant with first degree murder (§§ 187, subd. (a), 189, subd. (a); count 1) with gang- murder special circumstances (§ 190.2, subd. (a)(22)), drive-by-murder special circumstances (§ 190.2, subd. (a)(21)), a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d), (e)(1)). The People also charged appellant with active participation in a criminal street gang (§ 186.22, subd. (a); count 2) and being a felon in possession of a firearm (§ 29800, subd. (a); count 3) with a gang enhancement (§ 186.22, subd. (b)(1)). We need not discuss the facts underlying the charges because they are not relevant to this appeal. On August 22, 2019, appellant pleaded no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)) and an enhancement for furnishing a firearm to another for the purpose of aiding, abetting, or