People v. Murillo CA2/2

California Court of Appeal Mar 25, 2021 No. B304106Unpublished

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Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1170.95 because the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine.

Issues

Whether the trial court erred in summarily denying a petition for resentencing under Penal Code section 1170.95.
Whether the inclusion of the phrase 'natural and probable consequences' in an implied malice instruction constitutes a theory of vicarious liability under section 1170.95.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Because his jury was not instructed on either of the theories of liability invalidated by section 1170.95, we affirm the summary denial of his petition for relief.”

“The ‘natural [and probable] consequences’ language in the instruction for second degree murder does not transform [a defendant’s] conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95.”

Filed 3/25/21 P. v. Murillo CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B304106

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA134222) v.

MAXIMILIANO GUADALUPE MURILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Patrick Connolly, Judge. Affirmed.

Janet Gusdorff, 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, Kristen J. Inberg and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. ******

Maximiliano Guadalupe Murillo (defendant) appeals the trial court’s summary denial of his petition for resentencing under Penal Code section 1170.95.1 Because his jury was not instructed on either of the theories of liability invalidated by section 1170.95, we affirm the summary denial of his petition for relief. FACTS AND PROCEDURAL BACKGROUND 2 I. Facts A. The underlying crime In April 2012, defendant and a fellow gang member, Jose Antonio Valdes (Valdes), drove into rival gang territory. They were joined by a third fellow gang member, Ricardo Virgen (Virgen), who drove separately. The three men came upon a rival gang member, and one of them—namely, Virgen—fired 10 shots from two different firearms, killing the rival gang member instantly. B. Prosecution, conviction and appeal The People charged defendant, Valdes, and Virgen, with murder (§ 187, subd. (a)), and further alleged that the murder was gang related as defined in section 186.22, subdivision (b)(1)(C). The People further alleged that a principal in the crime discharged a firearm (§ 12022.53, subds. (d) & (e)(1)), and that Valdes and Virgen had personally discharged a firearm (§ 12022.53, subd. (d)). The matter proceeded to a joint trial. A

People v. Murillo CA2/2

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B304106

MAXIMILIANO GUADALUPE MURILLO,

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