People v. Curiel CA4/3

Filed 11/4/21 P. v. Curiel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058604

v. (Super. Ct. No. 02CF2160)

FREDDY ALFREDO CURIEL, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Julian W. Bailey, Judge. Reversed and remanded. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Seth M. Freidman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Freddy Alfredo Curiel of first degree murder, with a true finding on the special circumstance that the murder was to further the activities of a criminal street gang within the meaning of Penal Code section 190.2, subdivision 1 (a)(22). Curiel sought resentencing pursuant to Senate Bill No. 1437 (S.B. 1437). The trial court denied his petition for resentencing in light of the jury’s true finding on the special circumstance. It determined Curiel was ineligible for resentencing under S.B. 1437 as a matter of law because “it is apparent that [Curiel’s] conviction and sentence rest[ed] upon the jury’s finding that although he was not the actual shooter, he acted with the intent to kill. This finding was part of the ‘True’ finding of the special circumstance pursuant to [section] 190.2[, subdivision](a)(22); intentional killing for the benefit of a criminal street gang). The Court of Appeal specifically found that the evidence was sufficient to support that finding.” Curiel asserts this was error, and we agree. The jury’s findings did not establish he was ineligible for resentencing as a matter of law. We therefore reverse the trial court’s postjudgment order and remand the matter for further proceedings consistent with this opinion. FACTS I. Underlying Crime A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Curiel (Feb. 21, 2008, G037359) [nonpub. opn.] (Curiel I).) In sum, one summer morning in 2002, Cesar Tejada, Raul Ramirez, Lupe Olivares, Griselda Alfaro, Jeffrey [last name unknown], and another man were in front of Tejeda’s apartment drinking and socializing. Two men walked by, later identified as Curiel and Abraham Hernandez, and stared at the group angrily before going into a convenience store.