People v. Avila CA3

Filed 11/5/21 P. v. Avila CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092546

Plaintiff and Respondent, (Super. Ct. No. 96F07199)

v.

CRUZ ARMANDO AVILA,

Defendant and Appellant.

Defendant Cruz Armando Avila, along with accomplices Pablo Cobb and David Reynoso, entered the home of victim Nicholas Godinez while armed and attempted to rob him. Multiple guns were fired, during which Cobb shot and killed Godinez. A jury found defendant guilty of first degree murder and found true the special-circumstance allegations that the murder occurred during the commission or attempted commission of burglary and robbery. In 2019, defendant filed a petition for resentencing pursuant to Penal Code1 section 1170.95. The trial court denied the petition on the basis that defendant is ineligible for section 1170.95 relief as a matter of law. Defendant appeals,

1 Undesignated statutory references are to the Penal Code.

1

arguing he demonstrated prima facie entitlement to relief, and that the trial court should have issued an order to show cause and conducted an evidentiary hearing. Finding no error, we affirm. BACKGROUND For the reasons detailed in our discussion, we need not provide additional detail of the factual background of defendant’s crime. Suffice it to say, in 1996, defendant, Cobb, and Reynoso entered Godinez’s home while armed and attempted to rob him. (People v. Avila (May 2, 2002, C029883) [nonpub. opn.].) Gunfire broke out, during which defendant, Reynoso, and Godinez were shot. (Ibid.) Godinez died at the scene. (Ibid.) Although he did not shoot the bullet that killed Godinez, defendant was charged with murder. In 1998, a jury found defendant guilty of first degree murder (§ 187), burglary (§ 459), and attempted robbery (§§ 664, 211). The jury found true the special- circumstance allegations that the murder was committed during the commission or attempted commission of a burglary and robbery. (§ 190.2.) The jury instruction provided that in order to find the special circumstances true, the jury must find that although defendant was not the actual killer, he acted “with reckless indifference to human life and as a major participant, [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime of burglary, robbery, or attempted robbery, which resulted in the death of a human being . . . .” (See CALJIC No. 8.80.1.) The jury also found true that defendant used a firearm during the commission of the crime. Defendant was sentenced to life in prison without the possibility of parole plus three years. In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition, and concluded defendant “simply does not fall within the provisions of Penal Code section 1170.95 -- he is not a person who could not be convicted of first- or second-degree murder under the law as changed by SB 1437 --