People v. Bernal CA2/7

Filed 12/16/21 P. v. Bernal CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B311547

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA287120-02) v.

ARTURO BERNAL,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed. Arturo Bernal, in pro. per., Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.

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Arturo Bernal and codefendant Jose L. Perez, both members of the Mara Salvatrucha (MS-13) criminal street gang, were convicted following a jury trial of the 2003 murder of a rival gang member in territory claimed by the Leeward clique of MS-13. Both men were found guilty of second degree murder with true findings on firearm-use and criminal street gang enhancements. Bernal was sentenced to an aggregate indeterminate state prison term of 40 years to life. We affirmed the conviction and sentence on appeal. (People v. Perez (Jan. 11, 2010, B209761 [nonpub. opn.].) On February 21, 2019 Bernal, representing himself, filed a petition for resentencing pursuant to Penal Code section 1170.95,1 asserting he had been convicted of murder under the natural and probable consequences doctrine or felony-murder rule and could not now be convicted of murder because of amendments to Penal Code sections 188 and 189 effective January 1, 2019. Counsel was appointed to represent him. The prosecutor filed an opposition to the petition arguing, in part, Bernal was ineligible for resentencing as a matter of law because the record of conviction established Bernal was the shooter and had acted with express malice and neither the natural and probable consequences doctrine nor the felony-murder rule had been argued at trial. Appointed counsel and then privately retained counsel filed additional memoranda in support of Bernal’s petition. After hearing argument the superior court denied the petition noting the jury had found true the firearm-use enhancement alleging Bernal had personal used and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)), and ruling “the record