FILED
AUGUST 10, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of: ) No. 36996-0-III
)
MIZAEL MAGANA, ) UNPUBLISHED OPINION
)
Petitioner. )
PENNELL, C.J. — Mizael Magana has filed a petition for relief from personal
restraint imposed following his 2009 conviction for two counts of first degree assault with
firearm enhancements and one count of drive-by shooting. At the age of 16, Mr. Magana
was tried in adult court for these crimes. Recognizing Mr. Magana’s youth, the trial court
imposed an exceptional downward sentence of 24 months for each his two first degree
assault convictions, which were to be run consecutively. It also imposed a standard range
sentence of 48 months on his conviction for drive-by shooting, to be run concurrently
with his assault sentences. Finally, the court imposed 120 months with no credit for good
behavior for the two mandatory firearm enhancements, resulting in a total term of
confinement of 168 months. When imposing the firearm enhancements, the court
lamented its lack of discretion to impose a lighter sentence. In 2019, Mr. Magana filed a
personal restraint petition, seeking resentencing under State v. Houston-Sconiers, 188
Wn.2d 1, 21, 391 P.3d 409 (2017).
No. 36996-0-111
In re Pers. Restraint of Magana
Mr. Magana's petition is timely, falling under an exception to the one-year time
bar because Houston-Sconiers is retroactively applicable. See RCW 10.73.100(6); In re
Pers. Restraint ofAli, 196 Wn.2d 220,233,474 P.3d 507 (2020), cert. denied sub nom.
Washington v. Ali, 141 S. Ct. 1754 (2021). The State concedes that based on the trial
court's comments expressing its desire to impose a lower sentence had it the discretion to
do so, Mr. Magana can establish both error and prejudice. See Ali, 196 Wn.2d at 243-44.
Accordingly, the State agrees that Mr. Magana is entitled to resentencing consistent with
Houston-Sconiers.
Based on our own review of Mr. Magana's petition, and the State's concessions,
we grant the personal restrain petition and remand to the superior court for resentencing.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
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Pennell, C.J.
WE CONCUR:
Staab, J.
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