People v. Bernal CA2/2

Filed 9/2/21 P. v. Bernal CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B307506

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA125356) v.

NICANDRO CORTEZ BERNAL,

Defendant and Appellant.

APPEAL from an order of the Los Angeles Superior Court, Kelvin D. Filer, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

****** Nicandro Cortez Bernal (defendant) argues that the trial court erred in summarily denying his petition for resentencing under Penal Code section 1170.95.1 There was no prejudicial error, so we affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts “Defendant and his 15-year-old nephew visited a taco stand. They exchanged words and punches with Juan Medina (“Medina”), one of the stand’s employees, but eventually left. They later returned, but this time [d]efendant brought a shotgun and his nephew brought a knife. Medina had since tucked a BB gun into his apron. Upon arriving, [d]efendant drew his shotgun, Medina fled, and [d]efendant shot him in the back. An unknown shooter shot [d]efendant’s nephew in the chest . . . . Medina lived; the nephew did not.” (People v. Bernal (Oct. 16, 2014, B251438 [nonpub. opn.]).) II. Procedural Background A. Underlying conviction, sentence, and appeal “The People charged defendant with (1) the attempted murder of Medina (§§ 664, 187)[,] and (2) the murder of the nephew, on the theory that [d]efendant’s provocative act of shooting at Medina set in motion the chain of events resulting in