People v. Munguia CA4/1

Filed 9/29/21 P. v. Munguia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078641

Plaintiff and Respondent,

v. (Super. Ct. No. RIF132924)

SALVADOR MUNGUIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

This case arises from the trial court’s denial of a petition for

resentencing under Penal Code section 1170.95.1 We will again address the questions of whether that section applies to persons who have been convicted of attempted murder and whether denying access to section 1170.95 relief to such persons would deny equal protection. We will follow the uniform holdings of the Courts of Appeal that section 1170.95 does not apply to convictions for attempted murder and such conclusion does not implicate equal protection. We are aware our Supreme Court has granted review in a number of appeals on these issues. Ultimately, the court will provide guidance. Pending further direction from the high court, we will follow the analysis of the appellate courts.

PROCEDURAL BACKGROUND2 In 2009, a jury convicted Munguia and his co-defendant of attempted murder (§§ 664/187, subd. (a)); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1); and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that Munguia was a principal and that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)). Munguia was sentenced to an indeterminate term of 25 years to life plus seven years in prison. Munguia appealed, and this court affirmed the judgment in an unpublished opinion, People v. Munguia et al. (Dec. 21, 2010, D056080).