People v. Hester CA4/3

Filed 9/14/21 P. v. Hester CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058263

v. (Super. Ct. No. 06NF2588)

RANDLE HESTER, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

Randle Hester challenges the trial court’s summary denial of his petition for resentencing pursuant to Penal Code section 1170.95.1 Hester asserts the court improperly determined he was ineligible for resentencing as a matter of law and committed prejudicial error by failing to appoint counsel. We disagree. Because the record of conviction established Hester’s ineligibility for resentencing as a matter of law, the failure to appoint counsel constituted harmless error. We affirm the order denying his petition for resentencing. FACTS A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Hester (G041657, Nov. 30, 2010) [nonpub. opn.].) In sum, Hester was involved in a gang drive-by shooting that resulted in a death. At trial, the court only provided jury instructions as to direct aiding and abetting, and not regarding the natural and probable consequences theory of aiding and abetting liability. The court also did not instruct the jury on felony murder. The sole theories of first degree murder were premeditation and deliberation or shooting a firearm from a motor vehicle, which specifically required the factual finding that Hester “intentionally shot at a person who was outside the vehicle” and “[h]e intended to kill that person.” As relevant to the issues in this appeal, the jury convicted Hester of first degree murder (§ 187, subd. (a), count 1), shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182, subd. (a)(1), count 3), three counts of premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 5, 6, and 7), and street terrorism (§ 186.22, subd. (a), count 9). As to count 1, the jury found true the special circumstances Hester committed the murder during a drive-by shooting (§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). As to counts 1, 2, 5, 6,