People v. Torres CA5

INTRODUCTION

Petitioner Oscar Pablo Torres petitioned the trial court, pursuant to section 1172.6 of the Penal Code,1 for resentencing on his conviction for attempted murder. The court granted the petition, vacated the attempted murder conviction, and resentenced petitioner on the remaining counts. On appeal, petitioner contends relief under section 1172.6 entitled him to a full resentencing, including the ameliorative benefits of Assembly Bill No. 333 (2021–2022 Reg. Sess.), statutes 2021, chapter 699 (Assembly Bill No. 333). We agree and reverse.

PROCEDURAL BACKGROUND

On August 31, 2012, a jury convicted petitioner of premeditated attempted murder (§§ 187, subd. (a), 664; count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)2; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). As to counts 1 through 3, the jury also found gang and great bodily injury allegations to be true (§§ 186.22, former subd. (b)(1), 12022.7, subd. (a)). On count 1, petitioner was sentenced to a term of 15 years to life, plus three years for the great bodily…