People v. Avina CA4/3

Filed 12/3/24 P. v. Avina 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063096

v. (Super. Ct. No. 17NF1132)

JOSEPH ANTHONY AVINA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Scott A. Steiner, Judge. Reversed. Richard L. Fitzer, 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, Robin

Urbanski, Felicity A. Senoski and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent. * * * In 2018, defendant Joseph Anthony Avina pled guilty to three attempted murders. A year and a half later, he filed a petition under Penal 1 Code former section 1170.95 (now codified as § 1172.6) to vacate the three attempted murder convictions and for resentencing. The trial court summarily denied the petition. We find the denial was error, reverse the postjudgment order denying the petition, and remand for further proceedings. FACTS In January 2018, Avina was charged, by way of an amended felony complaint, with nine counts, including the attempted murders of A.M., F.M., and J.M. In connection with the attempted murder of J.M., it was alleged Avina acted with premeditation. All three attempted murders were alleged to have been committed for the benefit of a criminal street gang. It was alleged Avina was a principal in the crimes and that “another principal in the offense intentionally discharged a firearm.”2