People v. Molina CA1/2

Filed 10/22/21 P. v. Molina CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A159796

v. (Contra Costa County HECTOR DAVID MOLINA, Super. Ct. No. 50809020) aka HECTOR DAVID BETANCES MOLINA, HECTOR MOLINA- BETANCES, HECTOR D. MOLINA, Defendant and Appellant.

In 2018, the Legislature enacted a measure that curtailed the scope of the felony murder rule and the natural and probable consequences liability for murder. (Pen. Code, §1170.95 as amended by Stats. 2018, ch. 1015, § 4.) It also established a procedure, set out in Penal Code section 1170.95 (section 1170.95), whereby persons convicted of murder under the former, more expansive definitions of murder involving implied malice could petition to have their murder convictions set aside. Defendant Hector David Molina appeals from the order denying his petition for resentencing. Defendant’s opening brief distills the setting for the numerous crimes

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involved here, with these three opening paragraphs: “According to the prosecution’s gang expert witness and former gang members, by 2007, the VFL and ML Sureño gangs were encountering hard times. Gang members were breaking the prohibition on killing other members, and successive leaders were forced to leave the country. Following an informal amalgamation, VFL and ML members sought to boost their waning prestige with a strategy of killing rival Norteño gang members. Defendant was a member of VFL and one of the members hunting down Norteños. “Defendant went hunting on the night of December 22, 2007. Defendant was one of a number of Sureños who hid behind a fence until some Norteños came into view and then opened fire. Defendant killed Antonio Cintron (count one) and attempted to kill Adrian Espinoza (count two) and Neil Wixon (count three). Defendant was also convicted of conspiring to kill (count four) and engaging in gang activity (count five). “On February 16, 2008, defendant was driving one of the two vehicles full of Sureños. When a suspected Norteño was found, defendant told the others to ‘get that motherfucker.’ Other gang members got out and killed Luis Perez (count seven).” A jury found defendant guilty of first degree murder of Antonio Cintron in count 1; attempted murder of Adrian Espinoza and Neil Wixon, Jr. in counts 2 and 3; conspiracy to commit murder and assault in count 4; criminal street gang conspiracy in count 5; first degree murder of Luis Perez in count 7; second degree murder of Lisa Thayer in count 8; and first degree murder of Rico McIntosh in count 9. The jury found true the special circumstance allegation that defendant committed the murder in count 1 as an active participant in a criminal street gang and for the benefit of the gang, as well