In re Lucero CA4/2 ( 2013 )

Filed 8/29/13 In re Lucero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re NATHAN LEE LUCERO, E058986
on Habeas Corpus. (Super.Ct.No. RIC1305180)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Petition granted
in part and denied in part, with directions.
Nathan Lee Lucero, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Collette C. Cavalier, Deputy Attorney
General, for Respondent.
DISCUSSION
In this matter, the People agree that the record clearly indicates that the trial court
was unaware that it had the discretion to sentence petitioner to a term of 25 years to
life rather than a mandatory term of life without the possibility of parole. (Pen. Code,
§ 190.5.) Hence, the petition must be granted to the extent that we will direct the trial
court to schedule a new sentencing hearing and permit the filing of briefs on the
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appropriate term. As the People concede that relief is appropriate, we may act without
issuing an order to show cause. (Cf. People v. Duvall (1995) 9 Cal.4th 464 and People v.
Romero (1994) 8 Cal.4th 728.) This result also moots petitioner’s claims of cruel and
unusual punishment. (See Miller v. Alabama (2012) ___U.S.____ [132 S.Ct. 2455].)
DISPOSITION
Accordingly, the petition is granted in part as follows: the matter is remanded to
the Superior Court of Riverside County. The court shall appoint counsel for petitioner
and set a briefing schedule as well as a new sentencing hearing at which the trial court
may exercise the discretion conferred by Penal Code section 190.5. In all other respects
the petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
KING
J.
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