People v. Magana CA2/2

Filed 9/3/24 P. v. Magana CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B332105

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA129512) v.

JOSE MAGANA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Lisa B. Lench, Judge. Affirmed.

James Koester, 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, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

In 1996, defendant and appellant Jose Magana was convicted of second degree murder. (Pen. Code, § 187.)1 He was sentenced to 16 years to life in state prison. Defendant appealed his conviction, and on October 29, 1997, we affirmed the judgment. (People v. Magana (Oct. 29, 1997, B106669) [nonpub. opn.] (Magana I).) On January 31, 2019, defendant filed a petition for resentencing under section 1172.6.2 The trial court summarily denied his petition. Defendant appealed, and on June 2, 2020, we affirmed the trial court’s order. (People v. Magana (June 2, 2020, B297514) [nonpub. opn.] (Magana II).) As relevant to the issues in this appeal, we rejected defendant’s argument that “because the jurors were instructed with CALJIC No. 3.00, which contains the misleading phrase ‘equally guilty,’ they could have found defendant guilty of murder based only upon the direct perpetrator’s malice, rather than his own.” (Magana II, supra, B297514.) On February 15, 2023, defendant filed a second petition for resentencing. After the appointment of counsel, briefing from the parties, and a hearing, the trial court denied the petition. Defendant timely appealed. Relying upon the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.), he argues that the trial court’s instruction pursuant to CALJIC No. 3.00 “afforded the jurors an avenue to convict [defendant] as a direct aider and abettor through the imputation of the direct perpetrator’s malice.”