People v. Vasquez CA2/4

Filed 5/19/21 P. v. Vasquez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B308426

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA078205) v.

RUDY EVAN VASQUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Fred N. Wapner, Judge. Dismissed. Christine Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In May 1992, a reputed member of appellant Rudy Vasquez’s gang was killed by a rival gang member. Two weeks later, appellant drove into the rival gang’s territory. A fellow occupant of his car fired five or six gunshots into a group of rival gang members. Two of the rivals were hit, and one died.1 In 1994, a jury found appellant guilty of one count of second degree murder, with an enhancement for a principal’s use of a firearm, and one count of attempted first degree murder. The trial court sentenced appellant to 16 years to life plus a consecutive life sentence. On August 30, 2019, appellant filed a petition for resentencing under Penal Code section 1170.95. Appellant asserted that he had been convicted of murder under the felony murder rule or natural and probable consequences doctrine and could not now be convicted of murder because of changes made to Penal Code sections 188 and 189 in January 2019. The trial court initially appointed counsel for appellant on September 11, 2019, though several subsequent appointments were made before a bar panel attorney appeared in the case on February 5, 2020. The prosecution filed two oppositions to the petition on October 29, 2019. In the first, it argued that Penal Code section 1170.95 was unconstitutional. In the second, the prosecution argued that appellant was ineligible for resentencing because he was convicted of second degree murder as a direct aider and

1On our own motion, we take judicial notice of our prior opinion in this matter, People v. Vasquez (Nov. 22, 1995, B084452) [nonpub. opn.], which appears to have been inadvertently omitted from the appellate record. Appellant’s “statement of the case and relevant facts” relies on the generally accurate summary of that opinion provided in the prosecution’s opposition brief below.