People v. Albarran CA4/1

DISCUSSION

Senate Bill 775 and its amendments to section 1170.95 became effective January 1, 2022. Albarran’s appeal from the denial of the resentencing petition was not final by that date; thus, Albarran can take the benefit of the new legislation. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) This appeal is from a conviction based on a plea agreement. There was not a trial as part of the record of conviction. As the Attorney General concedes, there is no record of conviction that establishes, as a matter of law, that Albarran is not eligible for relief under the resentencing statute as it has now been amended. Accordingly, we will direct the court on remand to issue an OSC and conduct an evidentiary hearing. We express no opinion as to how the petition should be resolved.

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DISPOSITION

The order denying Albarran’s petition for resentencing under section 1170.95 is reversed. The case is remanded to the superior court with directions to issue an OSC and to conduct an evidentiary hearing as required by section 1170.95.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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