People v. Cordero CA2/1

Filed 4/2/21 P. v. Cordero CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B307245

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA129304) v.

DANIEL CORDERO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed and remanded. Paul Couenhoven, 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, Idan Ivri and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

In 2012, Daniel Cordero and Christian Calderon fired shots at an occupied vehicle, one of Calderon’s shots killing an occupant. At trial, “[t]he prosecution relied on two separate theories to argue Cordero was guilty of murder: He aided and abetted the murder itself, or he aided and abetted the assault that naturally and probably resulted in the murder.” The jury was instructed “on both theories, and . . . found him guilty of second degree murder without specifying which theory it credited.” (People v. Cordero (Apr. 30, 2018, B280146) [nonpub. opn.] at p. [14]].) Cordero was sentenced to a long prison term, and we affirmed the conviction. In 2019, Cordero filed a petition for resentencing under Penal Code section 1170.95.1 Relief under section 1170.95 is available to an inmate who was convicted of murder under the natural and probable consequences, aiding and abetting doctrine, but not to “a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The trial court found Cordero was ineligible for relief as a matter of law because he was a major participant in the underlying felony, and acted with reckless indifference to human life. It therefore denied the petition without appointing counsel. Cordero argues the court erred in denying him counsel to assist with his petition. Respondent concedes the point, and we agree. Section 1170.95 permits “[a] person convicted of felony murder or murder under a natural and probable consequences