In re Lucero CA4/2
Opinion
Opinion
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
1 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.