People v. Munoz CA2/5

Filed 3/10/21 P. v. Munoz CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B299579

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA055243) v.

ELIAS IVAN MUNOZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed. Edward H. Schulman, 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, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant Elias Munoz appeals from the trial court’s denial of his Senate Bill No. 1437 (Senate Bill 1437) and Penal Code section 1170.951 petition for resentencing. We affirm.

II. PROCEDURAL BACKGROUND

In 2007, a jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true the allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and a principal used a firearm in the commission of the murder (§ 12022.53, subds. (b)–(e)). A prior panel of this division affirmed defendant’s conviction. (People v. Munoz (Mar. 10, 2009, B205117) [nonpub. opn.].) In 2015, defendant sought habeas corpus relief, contending that appellate counsel rendered ineffective assistance by failing to challenge the trial court’s instructions given in response to the jury’s inquiries on aider and abettor culpability for first degree murder. A prior panel of this division agreed, and conditionally reversed defendant’s first degree murder conviction as follows: if the People did not retry defendant for first degree murder solely on an aiding and abetting theory within 60 day after the court filed the remittitur or if the People filed a written election not to retry defendant, then the trial court was to proceed as if the remittitur modified the judgment to reflect a conviction for second degree murder rather than for first degree murder and sentence defendant accordingly. (In re Munoz (Dec. 30, 2015,