People v. Medina CA2/5

Filed 12/14/20 P. v. Medina CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B304477

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA118471) v.

ENRIQUE DURAN MEDINA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Enrique Medina’s petition for resentencing under Penal Code section 1170.95 was summarily denied.1 As defendant was not entitled to relief as a matter of law, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. The Underlying Crime, Conviction and Appeal Defendant was convicted of first-degree murder and attempted premeditated murder for his part in a gang-related drive-by shooting. The two victims, Robert Velasquez and Ruth Rodriguez, were sitting on a wall in front of Rodriguez’s home. An SUV with three men in the vehicle stopped in front of the victims. The front passenger pointed a gun out the window and opened fire. Rodriguez took cover behind the wall and Velasquez attempted to flee. Velasquez was killed; Rodriguez was not. Defendant and two codefendants were charged with the crimes, and with firearm and gang enhancements. The jury was instructed on the natural and probable consequences doctrine only with respect to attempted murder; that is, the jury could determine the attempted murder of Rodriguez was a natural and probable consequence of the intentional murder of Velasquez. The jury convicted all three defendants of murder and attempted murder and found the gang enhancement true. However, the jury found the personal use firearm allegations against defendant not true.2 Defendant was sentenced to prison