People v. Saldana CA2/2 ( 2024 )

Filed 5/28/24 P. v. Saldana CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B327420
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA092407)
v.
Order Modifying Opinion and
ENRIQUE ISMAEL SALDANA, Denying Petition for Rehearing
Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered the opinion filed herein on May 15, 2024, be
modified as follows:
On page 2, the sentence under the heading
“Background,” beginning with “After a jury trial,” is
deleted in its entirety, and the following sentence is
inserted in its place: “After a jury trial with
codefendant Eduardo Galicia in 2011, defendant was
convicted of three counts of attempted murder
(§§ 664/187, subd. (a)) and other offenses.
The request of the court to order the superior court to
prepare an amended abstract of judgment correcting errors in the
abstract filed November 30, 2011, is denied. We note a corrected
abstract was issued and filed February 28, 2013, in Superior
Court case No. KA092407-01, though not made a part of the
appellate record.
There is no change in the judgment.
The petition for rehearing is denied.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
2
Filed 5/15/24 P. v. Saldana CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B327420
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA092407)
v.
ENRIQUE ISMAEL SALDANA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Enrique Ismael Saldana
(defendant) appeals the order denying his petition for vacatur of
his murder conviction and resentencing under Penal Code section
1172.6 (formerly section 1170.95)1 entered after an evidentiary
hearing held pursuant to subdivision (d) of that statute.
Defendant contends substantial evidence did not support the trial
court’s finding he directly aided and abetted the attempted
murder with intent to kill. We reach a different conclusion,
finding substantial evidence does support the trial court’s order.
We affirm the order.
BACKGROUND
After a jury trial with codefendant Eduardo Galicia in
2011, defendant was convicted of three counts of attempted
willful, deliberate, and premeditated murder (§§ 664/187, subd.
(a)) and other offenses. On November 29, 2011, he was sentenced
to a prison term of 25 years. On direct appeal we affirmed the
judgment in People v. Saldana (May 15, 2013, B238491) (nonpub.
opn.).
In January 2022, defendant filed a petition for vacatur of
his attempted murder convictions and resentencing pursuant to
section 1172.6. The trial court appointed counsel for defendant,
the prosecution filed a response to the petition, and after finding
defendant’s jury had been instructed on the natural and probable
consequences theory of liability, issued an order to show cause
why relief should not be granted under the statute. An
evidentiary hearing pursuant to section 1172.6, subdivision (d)
was held October 31, 2022. The prosecution submitted the
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
2
matter on the reporter’s and clerk’s transcripts of defendant’s
2011 trial, omitting any hearsay, as well as the procedural
portion of the appellate opinion. Defense counsel presented
defendant’s testimony at the hearing.
Relevant 2011 trial evidence2
Ramirez testimony
Salvador Ramirez testified that on October 27, 2010, about
3:30 p.m., he was walking with his brother Rafael Hernandez and
friend Daniel Gonzalez near Garey High School. As they
approached the Taqueria de Anda, Ramirez saw a car driven by a
male. The driver parked the car in front of them in the driveway
of the restaurant, blocking their path. Ramirez thought he also
saw two or three men in the backseat and a female occupant. All
the occupants were making gang signs and giving Ramirez and
his companions bad looks. The two men in the back, “Sicko” and
“Lalo,” got out of the car, approached Ramirez and asked if he
was still from “guppies,” meaning “Krazy Krowd” or “KC,” the
tagging crew associated with the 12th Street gang. Ramirez had
seen them before and identified codefendant Galicia, also known
as Lalo, in court. Ramirez knew Galicia because they had gone to
school together. Ramirez also identified photographs of Galicia
and Sicko in a photographic lineup.
Galicia and Sicko both started punching Ramirez, who
fought back while Hernandez and Gonzalez stood by and
watched. The driver got out of the car and said, “I’m the driver,”
and left. Sicko and Galicia ran back to the car, pulled out guns,
pointed and fired at Ramirez and his companions, who began
2 At the People’s request, we have taken judicial notice of the
relevant portions of the original trial transcript, which were not
included in the current record on appeal (submitted in electronic
form).
3
running away. Ramirez did not see the driver with a gun and did
not see his face well.
Gonzalez testimony
Gonzalez testified he was walking with Ramirez and
Hernandez, carrying a nine-millimeter handgun in his belt, when
he saw the car with occupants giving them angry stares. When
two men got out of the car, they said, “this is Olive Street,” and
asked Ramirez if he was still “kicking it with the guppies” (a
derogatory term for 12th Street). One of the men started
punching Ramirez, who fought back, while the other man tried,
unsuccessfully, to join the fight. Gonzalez and Hernandez stood
about five or six feet away during the fight. When Ramirez
appeared to be getting the best of his assailants, Gonzalez lifted
his shirt to display his gun but did not take it out. The two men
appeared to see it, returned to their car, and retrieved guns, one
black and one silver, as another man in a passenger seat
displayed a gun. With guns pointed at them, Ramirez, Gonzalez
and Hernandez started running. The two men chased after them.
Gonzalez did not see them fire but heard about three or four
gunshots. After he heard the first gunshot, he took out his gun
and fired it once into the air.
Hernandez testimony
Hernandez’s testimony about the incident was largely
consistent with the testimony given by Ramirez and Gonzalez,
with some additional details and recollections. Hernandez
testified one of the two men who got out of the car came from the
front passenger seat, and the other came from a back seat.
Hernandez thought the driver was female but was not certain.
The occupants were “mad-dogging” his brother, giving him angry
looks. Ramirez had told Hernandez stories about the people in
the car and said they did not like Ramirez.
4
As the two men approached, they said, “This is Pomona Sur
Olive Street.” Hernandez understood the question to Ramirez
about still being a “guppy” to mean whether he was a member of
12th Street. Hernandez identified Galicia in court as one of the
two men in the car and testified the other man had tattoos near
his eyes. Hernandez saw both men take swings at Ramirez, who
fought back against both. When the fight stopped, Hernandez
only saw Galicia go back to the car and pull a gun from the front
passenger seat that he then pointed and fired at Hernandez and
his companions approximately five or six times. As he was
running away, Hernandez saw Gonzalez pull out his gun and fire
it once in the air.
Defendant’s police interview
Pomona Police Department Detective Freeman testified
that an anonymous source provided a partial license plate
number of the shooters’ car, and the day after the shooting he
and his partner Detective Berger observed it being driven by
defendant in Olive Street gang territory. They followed the car
until defendant parked in an alley and got out. When the
detectives approached and said they wanted to speak to him,
defendant took two steps toward them, looked around, and fled.
Detective Berger gave chase on foot, and Detective Freeman was
able to catch up with defendant in their car. Defendant was
detained, patted down, and six .22-caliber bullets were found in
his pocket. Detective Freeman asked defendant where his gun
was. Defendant explained where he had thrown it during the
foot chase. It was recovered from the roof of a nearby house.
After arresting defendant and advising him of his Miranda3
rights, Detectives Freeman and Berger interviewed him. The
3 See Miranda v. Arizona (1966) 384 U.S. 436, 444-445.
5
interview was video-recorded, and an audio portion was played
for the jury.4
Defendant told Detective Freeman that on the morning of
October 27, he met up with Sicko and Galicia who suggested they
“go fishing.” Defendant explained “fishing” meant to go on a
mission looking for members of 12th Street. That afternoon they
met up again. This time two girls, Vanessa and Lala, were in the
car with them, and defendant was told to drive. Defendant drove
to the area of Garey High School where Galicia and Sicko
recognized “these kids” (Ramirez, Gonzalez, and Hernandez) and
told him to pull over in front of them. Defendant complied and
parked in the driveway near a Mexican restaurant. Asked why
they chose these three individuals, defendant said they named
them, saying, “Oh, that’s so and so. That’s somebody from . . . KC
or some bullshit like that.”
The girls stayed in the car while defendant, Galicia, and
Sicko got out, approached them, and started fighting with one of
them. Sometime before the fighting stopped, one of the three
victims pulled out his gun, cocked it, and said, “Get the fuck out
of here.” The fighting stopped, and Galicia ran to the car and
pulled out a .22-caliber revolver from the passenger area where
the stereo used to be. Later defendant said there was only one
gun in the car. Defendant and Sicko jumped into the car, and
when Ramirez, Gonzalez, and Hernandez started running away,
Galicia ran after them and fired about four or five times at them.
As the three ran away, one of them pulled out a gun and fired.
Early in the interview defendant said that after the
shooting Galicia told him to drive away from there, so he did.
Later in the interview defendant said that Galicia jumped into
4 We summarize the interview from the transcript of the
interview.
6
the driver’s seat and drove them away. Galicia put the gun in the
dash, told defendant it was there, to take the car and to stash it
away.
Defendant said he hangs out with these people because
Sicko “banged on [him],” and he does not know anyone else in the
area. Defendant added he did not like to say no to them because
he was scared they might do something to him.
Expert testimony
Detective Freeman testified as the prosecution’s gang
expert on gang culture and, in particular, the culture and
practices of Olive Street. He testified that Olive Street members
have been known to sell narcotics, commit carjacking, assaults,
with and without deadly weapons, attempted murders, murders,
car theft, witness intimidation, and putting up graffiti. Olive
Street’s biggest enemy or rival is 12th Street, who claims
territory near Garey High School and the Taqueria de Anda.
Detective Freeman explained that, when a gang goes on a
mission, it meant gang members getting together to commit an
act of disrespect toward a rival gang. A mission could range from
going into a rival neighborhood to spray paint the walls to
targeting a rival gang member for murder. Olive Street used the
term “fishing” to mean a mission to 12th Street’s neighborhood
for the purpose of assaulting or even killing 12th Street members.
Defense evidence
Defendant did not testify at the 2011 trial. Galicia testified
in October 2010 he was 16 years old and had been a member of
Olive Street for six months. Sometime after he got home from
school at 1:00 p.m. on the day of the shooting, Sicko, defendant,
and two girls came to his home while he was asleep. He went
outside to speak to them. Sicko suggested they cruise around,
drink and smoke some weed, but Galicia said he was not feeling
well and did not want to go. Sicko told him to stop “playing” him
7
like a “bitch.” Not wanting to get beaten up, Galicia got in the
car, and they headed to Garey High School to “punk some
guppies.” Galicia claimed not to think they were going to shoot
people, did not know there was a gun in the car, never drove the
car, and did not know how to drive. He testified that it was Sicko
who recognized Ramirez, directed them to Taqueria De Anda,
and said, “Let’s get down with them,” meaning to fight with
them.
Galicia, Sicko, and defendant got out of the car and
approached Ramirez and his companions. Sicko said something,
and a fight ensued. Galicia claimed he was about to join the fight
when a fat guy in a white T-shirt pulled a gun from his waist,
pointed it at Sicko, cocked it, and told Sicko to go back to the car.
Afraid, Galicia grabbed Sicko’s hand, pulled him away, and they
ran back to the car. Defendant then grabbed the gun from under
the driver’s seat, got out, and said something like, “Oh, what you
guys gonna do, you know. I heard something.” Despite one of the
girls saying not to shoot, defendant walked quickly into the
middle of the street and started shooting at them while the one
with the gun still had his gun out. After defendant fired a shot,
the three victims ran away, and after five more shots by
defendant, the one with the gun fired one shot. Galicia denied
ever shooting at anyone.
On cross-examination Galicia admitted he knew Ramirez
and had gone to eighth grade with him. Galicia clarified he did
not know there was a gun in the car when he was picked up but
was “[p]retty sure” there must have been a gun in the car when
they decided to go look for the enemy. He said only older
“homies” carried guns, not younger Olive Street members.
Galicia had previously been on three fishing missions for his gang
and knew there was a gun, but having seen no guppies, no gun
was taken out.
8
Although Galicia claimed Olive Street members used guns
only for protection and not to kill anyone, he acknowledged that
Olive Street members put in work for the gang by shooting rival
gang members, and the more work one puts in, the greater the
respect the member earns from the gang. If an Olive Street
member did shoot a rival gang member, he would gain more
respect than someone who sprayed graffiti on the wall.
The section 1172.6 hearing
In lieu of direct examination defendant made a statement
under oath that on the day of the shooting his friends picked him
up, and he was told to drive. Defendant ordinarily drove because
he was one of the few of his friends who knew how to drive.
Defendant claimed he and his friends did not intend to shoot or
kill anyone, and he had no idea that guns were in the car. He did
acknowledge that gang members usually carry guns. Defendant’s
companions grew up with the victims, and defendant barely knew
his companions as he had only just started hanging around them.
When defendant pulled up in front of the victims, his companions
did not immediately get out of the car and start shooting. Rather
the confrontation started as a fist fight but escalated because one
of the victims pulled out a gun. The companions returned to the
car, grabbed their gun and started shooting. Defendant claimed
everything happened quickly and did not register, making it hard
to remember. He had no idea a shooting was going to happen
when it began as a fistfight.
On cross-examination defendant admitted being a “Pomona
Sur Olive” gang member on the date of the shooting, that his
gang had a rivalry with 12th Street, and that he was driving the
car. He agreed to pull the car in front of the victims but, because
he was busy driving, did not see whether the occupants in the
back seat were making gang signs at the victims. He did hear
them call out “this is Olive Street” and “this is Pomona Sur
9
Olive.” Defendant did not initially get out of the car, but claimed
he eventually got out in order to break up the fist fight. He saw
Gonzalez display his gun but did not hear what Gonzalez said.
When his companions ran back to the car, he saw them pull their
guns from the back seat and then shoot at the victims. The
reason he waited for them rather than driving away, he said, was
he was afraid of retaliation. After the shooting, he drove his
companions to safety without checking any of the victims for
injury or their need for help. After the shooting, defendant
stayed all night with his companions in a park because he did not
have a place to stay. Defendant denied taking the gun Galicia
used and ever brandishing a gun during the incident. Defendant
denied that the gun he was caught with was the gun used by
Galicia. He explained the gun he was caught with was a
revolver.
Following the testimony, the trial court heard counsel’s
arguments and found defendant was guilty of attempted murder
under current law, beyond a reasonable doubt, thereby denying
defendant’s section 1172.6 petition.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends the prosecution failed to prove beyond
a reasonable doubt defendant harbored the requisite intent to
convict him of the attempted murders.
Section 1172.6 provides a procedure for those convicted of
murder, attempted murder, or manslaughter to seek retroactive
relief if they could not be convicted under sections 188 and 189 as
amended, effective January 1, 2019. (See People v. Lewis (2021)
11 Cal.5th 952, 957.) Here, as defendant made a prima facie
showing of eligibility under the statute, the trial court properly
proceeded to an evidentiary hearing under section 1172.6,
10
subdivision (d), at which the prosecutor was required to prove
beyond a reasonable doubt that defendant remained guilty of
attempted murder.5
On appeal from the denial of a petition after the hearing,
we review the ruling for substantial evidence. (People v. Reyes
(2023) 14 Cal.5th 981, 988.) We view the evidence in the light
most favorable to the court’s order to determine whether any
reasonable trier of fact could have made the same determination
beyond a reasonable doubt. (Ibid.) “[I]t is the exclusive province
of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination
depends,” and we “presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) We do not
reweigh the evidence or resolve conflicts in the evidence. (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
“The same standard applies when the conviction rests
primarily on circumstantial evidence.” (People v. Kraft (2000) 23
Cal.4th 978, 1053.) “An appellate court must accept logical
inferences that the [trier of fact] might have drawn from the
circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
396.) “Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as
sufficient as direct evidence to support a conviction.” (People v.
Bloom (1989) 48 Cal.3d 1194, 1208.)
Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conclusion of the
trier of fact].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
5 The hearing judge had also presided over defendant’s 2011
trial.
11
“[B]ecause ‘we must begin with the presumption that the
evidence . . . was sufficient,’ it is defendant, as the appellant, who
‘bears the burden of convincing us otherwise.’” (People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1430.) “[T]o prevail on a sufficiency
of the evidence argument, the defendant must present his case to
us consistently with the substantial evidence standard of review.
That is, the defendant must set forth in his opening brief all of
the material evidence on the disputed elements of the crime in
the light most favorable to the People, and then must persuade
us that evidence cannot reasonably support the jury’s verdict.
[Citation.] If the defendant fails to present us with all the
relevant evidence, or fails to present that evidence in the light
most favorable to the People, then he cannot carry his burden of
showing the evidence was insufficient because support for the
jury’s verdict may lie in the evidence he ignores.” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1574.)
Defendant has failed to carry his burden. The statement of
facts in defendant’s brief is taken entirely from the prosecution’s
summary in its opposition to the petition for resentencing and
from his own testimony at the section 1172.6 hearing. In the
argument section of his brief, defendant has summarized
selectively chosen parts of Galicia’s testimony. The trial court
was not required to believe either witness or give particular
weight to their testimony and may reject all or part of it. (See
People v. Hamlin, supra, 170 Cal.App.4th at p. 1463.) Defendant
has also summarized portions of the prosecution’s closing
argument at the 2011 trial and treated them as evidence. The
statements and argument of counsel are not evidence. (People v.
Dykes (2009) 46 Cal.4th 731, 793.)
We have reviewed the 2011 trial evidence and have found
substantial evidence supports the trial court’s ruling.
12
Quoting People v. Lee (2003) 31 Cal.4th 613, 624, defendant
correctly states, “[T]o be guilty of attempted murder as an aider
and abettor, a person must give aid or encouragement with
knowledge of the direct perpetrator’s intent to kill and with the
purpose of facilitating the direct perpetrator’s accomplishment of
the intended killing—which means that the person guilty of
attempted murder as an aider and abettor must intend to kill.”
Compelling evidence established that Galicia was the
shooter. He was identified as the shooter by Ramirez, whom
Galicia admitted knowing since they were in the eighth grade
together. Detective Freeman testified that Olive Street members
used the term “fishing” to mean a mission to 12th Street’s
neighborhood for the purpose of assaulting or even killing 12th
Street members. And Olive Street members are known to have
committed assaults with a deadly weapon, attempted murders,
and murders. “[E]vidence of motive is often probative of intent to
kill.” (People v. Smith (2005) 37 Cal.4th 733, 741.) Motive in
gang shootings is reasonably inferred from hatred felt for rival
gang members. (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
When a gang member fires multiple shots at a group of people in
rival gang territory it is reasonable to infer that he harbored an
intent to kill. (See People v. Francisco (1994) 22 Cal.App.4th
1180, 1192.)
There is no doubt defendant aided and abetted the mission,
as he drove the car to rival gang territory knowing the mission
was “fishing” for 12th Street members and parked in a driveway
to block the passage of the three victims on the sidewalk. The
remaining issue is whether defendant aided and abetted Galicia’s
acts with the intent to kill. “‘[I]t is well settled that intent to kill
or express malice, the mental state required to convict a
defendant of attempted murder, may . . . be inferred from the
13
defendant’s acts and the circumstances of the crime.’” (People v.
Avila (2009) 46 Cal.4th 680, 701.)
Defendant argues the evidence proved that his intent was
not to kill but to go into rival gang territory with his fellow gang
members and beat up their rivals. If Galicia had intended to kill,
defendant argues, he would have taken a gun when he first
exited the car. Defendant points out the prosecution’s own gang
expert testified that “go fishing” could mean either assault or kill
rival gang members, apparently suggesting that this court should
decide which one the evidence shows. Defendant concludes that
the evidence did not prove the direct perpetrator intended to kill,
and thus, it was insufficient to prove defendant as his aider and
abettor, intended to kill.
Our task is not to determine whether there were
circumstances that might reasonably support a finding contrary
to the court’s ruling. (People v. Hajek and Vo (2014) 58 Cal.4th
1144, 1194, abrogated on another ground in People v. Rangel
(2016) 62 Cal.4th 1192, 1216.) Moreover, we decline defendant’s
apparent invitation to overrule the rules of substantial evidence.
Defendant has failed to summarize all material evidence in a
light favorable to the prosecution. Instead he has summarized
arguments suggesting it is evidence, disregarded evidence that is
unfavorable to his argument, resolved conflicts and credibility
issues, and has drawn inferences in his favor. Defendant argues
that Galicia should have been believed when he proclaimed his
intent only to assault, but he ignores Galicia’s testimony that
defendant was the shooter. Defendant’s argument lacks logic. If
Galicia’s testimony is to be believed, it would demonstrate that
defendant, not Galicia, was the direct perpetrator.
Defendant also ignores his own admissions. In his
interview with Detective Freeman the day after the shooting,
defendant admitted that “fishing” meant to go on a mission
14
looking for rival gang members, in this case, 12th Street
members, and that he drove his fellow gang members on that
mission on October 27, 2010. He told the detectives that when
Galicia ran back to the car, he pulled out one of the guns from
where the stereo used to be, choosing the .22-caliber revolver. A
reasonable inference from these statements is that defendant
knew a fishing mission could result in a shooting; he willingly
went on the mission and drove there knowing there was more
than one gun in the car (although he later said there was just
one).
Gonzalez testified that when the two men went to the car to
retrieve guns, a man in the passenger’s seat displayed a gun.
Defendant told Detective Freeman there were only three men on
this fishing mission, himself, Galicia, and Sicko. Defendant
initially got out of the car with the other two, and when guns
came out, he jumped into the backseat with Vanessa. Thus when
Gonzalez displayed his firearm, and Galicia and Sicko went for
their guns, defendant was the only man in the car. As the trial
court found, defendant was that man, and showing his firearm
allowed his companions to arm themselves and respond with
deadly force to Gonzalez’s gun display.
A “shooter’s purposeful ‘use of a lethal weapon with lethal
force’ against the victim, if otherwise legally unexcused, will itself
give rise to an inference of intent to kill.” (People v. Smith, supra,
37 Cal.4th at p. 742.) The most reasonable inferences to draw
from the evidence were that defendant knew there were guns in
the car, was himself armed with a gun, knew Galicia and Sicko
were retrieving guns, intended to use them, and by assisting
them to do so by displaying his gun, defendant shared the
shooter’s intent to use deadly force against the victims.
We conclude that substantial evidence supports the trial
court’s ruling such that any rational trier of fact could find the
15
defendant guilty of attempted murder beyond a reasonable doubt.
(See People v. Jones, supra, 51 Cal.3d at p. 314.)
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
16