People v. Lemus CA4/3

Filed 8/26/24 P. v. Lemus 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063044

v. (Super. Ct. No. 98NF1488)

BENJAMIN ROMERO LEMUS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

A jury convicted defendant Benjamin Romero Lemus of one count 1 of first degree murder (Pen. Code, § 187; count 1), one count of carrying a firearm in public while an active participant in a street gang (former § 12031, subd. (a)(2)(C); count 2), and one count of street terrorism (§ 186.22, subd. (a); count 3). As to count 1, the jury found true that defendant committed the murder by shooting from a motor vehicle with the intent to kill (§ 190.2, subd. (a)(21)) and that he personally used and discharged a firearm in the commission of the murder (§§ 12022.5, subd. (a), 12022.53, subd. (d)). The jury also found true allegations that counts 1 and 2 were committed for the benefit of or to promote a criminal street gang. (§ 186.22, subd. (b).) The court sentenced defendant to life in prison without the possibility of parole for the first degree murder conviction plus a consecutive term of 25 years to life for the firearm enhancement. In 2002, another panel of this court affirmed the judgment. (People v. Lemus (July 31, 2002, G027219) [nonpub. opn.].) In May 2023, defendant filed a petition for resentencing under former section 1170.95 (now § 1172.6).2 The trial court summarily denied the petition, and defendant timely filed a notice of appeal. Appointed counsel indicates she has found no arguable issues but requests we exercise our discretion to independently review the record. Consistent with Anders v. California (1967) 386 U.S. 738, appointed counsel identified one issue to assist in our independent review: whether certain aiding and abetting language contained in the gang crime jury instructions allowed the jury to convict defendant on a theory of imputed