People v. Madrid CA4/1

Filed 8/23/24 P. v. Madrid CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082585 Plaintiff and Respondent, v. ANTONIO MADRID, (Super. Ct. No. SCD103805) Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. William Paul Melcher, 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, Eric A. Swenson, Christine Y. Friedman, Felicity Senoski and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. Antonio Madrid appeals from an order denying his petition for resentencing on a 1994 first degree murder conviction under Penal Code

section 1172.6.1 We affirm the order because the jury found that he was the actual killer of the victim and that he acted with intent to kill. FACTUAL AND PROCEDURAL BACKGROUND The Charges In 1994, Madrid and codefendant, Maria Isabel Flores, were charged with the murder, torture and robbery of Tracy Foose, the victim. A juvenile codefendant was charged separately. The charges included an allegation of a special circumstance under section 190.2 subdivision (a)(18), namely that the murder was intentional and involved the infliction of torture. At trial, in addition to an instruction for premeditated murder, the jury was instructed under a felony-murder theory of liability for first degree murder, specifically that a killing “which occurs during the commission of the crime of robbery or torture is murder of the first degree when the perpetrator had the specific intent to commit such crime.” The court also instructed the jury as to felony murder by means of aiding and abetting robbery or torture, i.e., that the defendant is guilty of first degree murder, “whether the killing is intentional, unintentional or accidental,” if the defendant acted with knowledge of the unlawful purpose of the perpetrator of the crime of robbery or torture “and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid[s], promote[s] encourage[s] or instigate[s] by act or advice its commission.” As to the special circumstance of murder involving infliction of torture, the jury was instructed that the prosecution was required to prove “[t]he