People v. Bautista CA2/2

Filed 9/9/21 P. v. Bautista CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308925

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA040194) v.

CHRISTOPHER BAUTISTA,

Defendant and Appellant.

APPEAL from an order of the Los Angeles Superior Court, Kathryn A. Solorzano, Judge. Affirmed.

Robert D. Bacon, 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, Amanda V. Lopez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

****** Christopher Bautista (defendant) argues that the trial court erred in denying his petition for resentencing under Penal Code section 1170.95.1 There was no error, so we affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts In the early morning hours of a Monday in April 2000, defendant and his fellow gang members approached a rival gang member getting home from work. Unfortunately for them, the rival was an armed security guard wearing a bulletproof vest. When defendant and his cohorts opened fire on their intended victim, he fired back and killed one of the cohorts. II. Procedural Background A. Underlying conviction, sentence and appeal The People charged defendant with (1) the murder of his cohort (as a consequence of defendant’s provocative act of attacking the rival gang member) (§ 187, subd. (a)), and (2) the attempted premeditated murder of the rival gang member (§§ 187, 664, subd. (a)). With respect to the murder charge, the People alleged that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and that the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)(1)(C)). On the murder count, the jury was only