People v. Carrasco CA4/1

Filed 12/22/21 P. v. Carrasco CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D078123

Plaintiff and Respondent,

v. (Super. Ct. No. SCD208418)

CARLOS HUMBERTO CARRASCO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Patricia L. Brisbois, 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, Arlene Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

In 2008, a jury convicted Carlos Humberto Carrasco of two counts of

second degree murder (Pen. Code,1 § 187, subd. (a)) and one count of shooting into an inhabited dwelling (§ 246). The jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that a principal used a firearm causing the death of a person (§ 12022.53, subds. (d) and (e)). The court sentenced Carrasco to an indeterminate term of 80 years to life in prison. Carrasco appealed and this court affirmed the judgment in an unpublished opinion, People v. Carrasco, D054174 (July 13, 2010). In 2020, Carrasco filed a petition for resentencing under section 1170.95. The court appointed counsel, received briefing, reviewed the record of conviction, and then denied the petition. Based on the prior opinion of this court, the trial court denied the petition, finding the record demonstrated Carrasco acted with actual or implied malice. Carrasco filed a timely notice of appeal. Carrasco contends, the court erred in concluding he was ineligible for resentencing without first issuing an order to show cause (OSC) and conducting an evidentiary hearing. He argues, the trial court should not have relied on this court’s prior opinion to determine he acted with express or implied malice in the commission of the offenses in this case. We will find the court properly considered the record of conviction including this court’s prior opinion. We believe that under the facts of the case, the prior opinion correctly concluded Carrasco was either the actual killer or was a direct aider and abettor who acted with implied malice. We will affirm the trial court’s denial of Carrasco’s petition.