People v. Medina CA2/5

Filed 12/14/20 P. v. Medina CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304477
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA118471)
v.
ENRIQUE DURAN MEDINA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Enrique Medina’s petition for resentencing
under Penal Code section 1170.95 was summarily denied.1 As
defendant was not entitled to relief as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Crime, Conviction and Appeal
Defendant was convicted of first-degree murder and
attempted premeditated murder for his part in a gang-related
drive-by shooting. The two victims, Robert Velasquez and Ruth
Rodriguez, were sitting on a wall in front of Rodriguez’s home.
An SUV with three men in the vehicle stopped in front of the
victims. The front passenger pointed a gun out the window and
opened fire. Rodriguez took cover behind the wall and Velasquez
attempted to flee. Velasquez was killed; Rodriguez was not.
Defendant and two codefendants were charged with the
crimes, and with firearm and gang enhancements. The jury was
instructed on the natural and probable consequences doctrine
only with respect to attempted murder; that is, the jury could
determine the attempted murder of Rodriguez was a natural and
probable consequence of the intentional murder of Velasquez.
The jury convicted all three defendants of murder and
attempted murder and found the gang enhancement true.
However, the jury found the personal use firearm allegations
against defendant not true.2 Defendant was sentenced to prison
1 All undesignated statutory references are to the Penal
Code.
2 The jury found true the allegations against defendant’s
codefendants that a principal was armed. It is not clear whom
the jury believed to have been the shooter.
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for 25 years to life for the murder with a consecutive term of 15
years to life for the attempted murder.
On appeal, defendant’s conviction was affirmed, with minor
modifications to his sentence not relevant to this appeal. (People
v. Medina (Feb. 5, 2015, B249059) [nonpub. opn.].)
2. Defendant’s Section 1170.95 Petition
On April 2, 2019, defendant filed a form petition for
resentencing under section 1170.95, which allows defendants
convicted of murder under the felony-murder rule or natural and
probable consequences doctrine to seek resentencing under
certain circumstances. The petition was filed by the counsel who
had represented defendant at trial.
The court appointed defendant’s trial attorney to represent
him and ordered the prosecution to file a response.
In its response, the prosecutor argued defendant was not
eligible for relief because he was convicted of murder on the basis
of direct aiding and abetting; the jury was not instructed on
felony murder or natural and probable consequences with respect
to murder. Although the response did not expressly argue that
the statute did not apply to attempted murder, the District
Attorney did argue that relief was available only for convictions
of murder.
The court held a short hearing on the petition, in which the
following colloquy occurred:
“The Court: The court has read the materials. Based on
the total circumstances, the court does not believe Mr. Medina is
eligible for relief.
“[Defense counsel]: Correct, Your Honor. I think the only
time that a natural and probable consequences was used was for
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the attempt murder, and at this point the Legislature is not
allowing that –
“The Court: Correct.
“[Defense counsel]: -- attempt murder to be used.
“The Court: That’s correct. That’s outside the gamut of the
statute.”
The court denied the petition. Defendant filed a timely
notice of appeal.
DISCUSSION
On appeal, defendant concedes that he was convicted of
murder on a theory of direct aiding and abetting, and that,
therefore, section 1170.95 does not apply to that conviction. He
argues only that section 1170.95 relief applies to convictions for
attempted murder.3 The cases which have considered the issue
are in agreement that it does not. (People v. Lopez (2019)
38 Cal. App. 5th 1087, 1104-1105, review granted Nov. 13, 2019,
S258175. See also People v. Love (2020) 55 Cal. App. 5th 273, 279,
petn. for review filed Nov. 9, 2020; People v. Alaybue (2020)
51 Cal. App. 5th 207, 222; People v. Dennis (2020) 47 Cal. App. 5th
838, 844, review granted July 29, 2020, S262184.)4 We agree
with those cases and affirm the trial court’s order.
3 The Attorney General notes defendant’s counsel conceded
otherwise at the hearing on the petition, but does not argue
forfeiture.
4 There is a line of cases from the Fifth Appellate District
which conclude that the law which enacted section 1170.95 did,
in fact, abrogate the doctrine of natural and probable
consequences as a basis for attempted murder, but only if raised
by direct appeal from the underlying conviction. Those cases
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
agree that section 1170.95 does not provide retroactive relief to
defendants whose attempted murder convictions have become
final. (People v. Sanchez (2020) 46 Cal. App. 5th 637, 642−643,
review granted June 10, 2020, S261768; People v. Medrano (2019)
42 Cal. App. 5th 1001, 1016−1018, review granted Mar. 11, 2020,
S259948; People v. Larios (2019) 42 Cal. App. 5th 956, 969−970,
review granted Feb. 26, 2020, S259983.)
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