People v. Prado CA2/6

FACTS

In July 2014, Andres Prado pled no contest to attempted murder (§§ 187, subd. (a), 664, subd. (a)) and voluntary manslaughter (§ 192, subd. (a)). He admitted a gang enhancement as to both counts (§ 186.22, subd. (b)(1)(C)) and a personal use of a firearm enhancement as to the manslaughter count (§ 12022.5, subd. (a)). The trial court sentenced him to an aggregate term of 36 years 11 months. In January 2019, Prado petitioned for resentencing pursuant to section 1170.95. In his petition he falsely stated under penalty of perjury that he had been convicted of first or second degree murder. The trial court summarily denied the petition because he was not convicted of murder. We affirmed and Prado petitioned to our Supreme Court for review. While the matter was pending, the Legislature amended section 1170.95 to apply to attempted murder and manslaughter. (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) Our Supreme Court remanded the matter to us to vacate our decision and reconsider the matter in light of the amended statute.

DISCUSSION

The People concede that the record on appeal contains neither a preliminary hearing transcript nor a police report. Thus, the record contains…