People v. Resendiz CA4/3

Filed 8/21/24 P. v. Resendiz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062714

v. (Super. Ct. No. 93CF3219)

VINCENT RESENDIZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Michael A. Leversen, Judge. Reversed and remanded with directions. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

In 1995, appellant was convicted of murder and attempted voluntary manslaughter. In 2023, after conducting an evidentiary hearing under Penal Code section 1172.6, the trial court denied appellant’s petition to vacate his murder conviction, but it granted his request to vacate his conviction for attempted voluntary manslaughter. The parties agree, as do we, that both aspects of the trial court’s order are incorrect. We thus reverse the order and remand for further proceedings. FACTUAL AND PROCEDRUAL BACKGROUND In 1993, appellant was involved in a drive-by shooting that killed one person and wounded another. Although appellant was not the shooter, he was tried for first degree murder and attempted premeditated murder as an accomplice. The jury was instructed on both the direct and the natural and probable consequences theories of aiding and abetting. However, it was not instructed on the felony murder theory of liability. The jury convicted appellant of the lesser included offenses of second degree murder and attempted voluntary manslaughter, with an attendant enhancement for being vicariously armed with a firearm. (Pen. Code, §§ 187, 189, 664/192, subd. (a), 12022, subd. (a)(1).) The trial court sentenced him to prison for 20 years to life, and we affirmed the judgment on appeal. (People v. Resendiz et al. (Feb. 25, 1998, G019384) [nonpub. opn.].) In 2020, in response to appellant’s petition for resentencing, the trial court issued an order to show cause and conducted an evidentiary hearing pursuant to Penal Code section 1172.6, subdivisions (c) and (d). At the hearing, the parties directed their arguments to whether there was sufficient evidence at appellant’s trial to prove he directly aided and abetted the shootings with malice. Neither side argued nor relied on the felony murder theory of liability.