People v. Herrera CA2/1

Filed 4/2/21 P. v. Herrera CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B302278

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA041330) v.

MICHAEL P. HERRERA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Appeal dismissed. ________________________________

Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

________________________________

I. In 2000, defendant Michael P. Herrera, a member of a criminal street gang, aided and abetted the murder of a rival gang member and attempted to murder two others. In 2002, a jury convicted defendant of second degree murder, two counts of attempted first degree murder, and shooting into an occupied motor vehicle. The jury also found true certain firearm and gang enhancement allegations. On defendant’s direct appeal, we modified the judgment by striking the gang enhancements on the attempted murder counts and affirmed the judgment as modified. (People v. Herrera (Sept. 28, 2006, B181092) [nonpub. opn.].) In February 2019, defendant filed a petition to recall his sentence and be resentenced under Penal Code1 section 1170.95. He alleged that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine, he “was not the actual killer,” and he could not now be convicted of murder pursuant to changes made by recent amendments to sections 188 and 189. The court appointed counsel for defendant and set a hearing on the petition. The People filed an opposition to the petition; defendant, through counsel, filed a reply; and the People filed a supplemental opposition. At a hearing to determine whether defendant was eligible for relief under section 1170.95, defendant was represented by the attorney who represented him at his trial 18 years earlier. The attorney reviewed the jury instructions in the record of the trial and confirmed his recollection that the case was not prosecuted on a theory of felony murder or the natural and probable consequences