People v. Orozco CA2/6 ( 2022 )

Filed 1/27/22 P. v. Orozco CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B311494
(Super. Ct. No. TA139085)
Plaintiff and Respondent, (Los Angeles County)
v.
MARCOS ANTONIO OROZCO,
Defendant and Appellant.
Appellant Marcos Antonio Orozco was the “wheel man” in a
gang related robbery of a liquor store in 2015. He was charged
with murder and, pursuant to a negotiated settlement, pleaded
no contest to voluntary manslaughter. In 2019, he filed a petition
for resentencing under Penal Code1 section 1170.95. The trial
court summarily denied the petition finding section 1170.95, by
its express terms, only applied to individuals convicted of murder.
Section 1170.95 was subsequently amended. Effective January 1,
2022 it applied to individuals, like appellant, who were convicted
1 All statutory references are to the Penal Code.
of voluntary manslaughter. Accordingly, we shall reverse the
trial court’s order denying appellant’s petition and remand the
matter for further proceedings in accordance with section 1170.95
as amended.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellant pleaded no contest prior to a preliminary
hearing. The relevant facts, therefore, are derived from the
probation report. On November 16, 2015, appellant’s
codefendants Raul Hidalgo and Luis Gomez entered a liquor
store, grabbed several items, and attempted to leave through the
rear exit. One of them was detained by a store employee.
Employees Brian Jaime and Alfredo Alvarado followed the other
man out of the store until he reached a vehicle driven by
appellant. When someone in the vehicle pointed a gun at Jaime
and Alvarado, they retreated and returned to the store. The
detained accomplice told them “[y]ou’ll regret this, this is 18
Street, this is our hood and you’ll regret this. You don’t know
who you’re fucking with.” He was tragically prophetic.
The vehicle driven by appellant began circling the store.
An unidentified individual got out of the vehicle, entered the
store, and repeatedly shot Jaime and Alvarado. Alvarado was
killed and Jaime was seriously injured. The shooter and
detained accomplice fled in the vehicle driven by appellant.
Appellant was charged with murder (§ 187, subd. (a)),
attempted murder (§§ 187, subd. (a), 664) robbery (§ 211), assault
with a semiautomatic firearm (§ 245, subd. (b)), dissuading a
witness by force or threat (§ 136.1, subd. (c)(1)), and voluntary
manslaughter (§ 192, subd. (a)), with gang and firearm use
allegations. In June 2018, appellant pleaded no contest to
voluntary manslaughter and admitted the crime was committed
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for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).
The remaining charges and enhancements were dismissed.
Pursuant to a negotiated disposition, the trial court sentenced
appellant to 21 years in state prison, consisting of the upper term
of 11 years for manslaughter plus 10 years for the gang
enhancement allegation.
In March 2019, appellant filed a petition for resentencing
under section 1170.95. The prosecution opposed the petition
urging that section 1170.95 did not provide relief to individuals
convicted of voluntary manslaughter rather than murder. In
March 2021, the trial court denied appellant’s petition on the
ground that section 1170.95 did not apply to voluntary
manslaughter.
DISCUSSION
In March 2021, when the trial court denied appellant’s
section 1170.95 petition, the law was clear that relief under that
section was not available to those convicted of voluntary
manslaughter, even if they had been charged with murder but
pleaded guilty to manslaughter. (See, e.g., People v. Paige (2020)
51 Cal.App.5th 194, 201-204; People v. Cervantes (2020) 44
Cal.App.5th 884, 887.) In October 2021, after briefing in this
appeal was completed, the Governor approved Senate Bill No.
775 (2021-2022 Reg. Sess.) (SB 775). (Stats. 2021, ch. 551, § 2.)
This legislation went into effect on January 1, 2022 and
permitted certain persons convicted of manslaughter or
attempted murder to seek relief. Specifically, SB 775 amended
section 1170.95 to read, in pertinent part: “A person convicted of
. . . manslaughter may file a petition with the court that
sentenced the petitioner to have the petitioner’s . . .
manslaughter conviction vacated and to be resentenced on any
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remaining counts.” It is undisputed that this amendment applies
retroactively to this case.
We provided the parties with an opportunity to submit
supplemental letter briefs on the effect of this amendment.
Appellant contends, and the People agree, that the matter must
be remanded for the trial court to appoint counsel for appellant
and conduct further proceedings as provided in section 1170.95.
We express no opinion on whether appellant is ultimately
entitled to relief under the statute.
DISPOSITION
The order denying appellant’s petition for resentencing is
reversed and the matter is remanded with directions to comply
with section 1170.95 as amended.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, A.P.J.
TANGEMAN, J.
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Laura R. Walton, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Charles S. Lee, and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.