People v. Medrano CA5

Filed 1/19/22 P. v. Medrano CA5 Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081667 Plaintiff and Respondent, (Super. Ct. No. BF159394A) v.

MICHAEL CHALILLO MEDRANO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Julie A. Hokans and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Franson, Acting P. J., Peña, J. and Snauffer, J.

In People v. Rodriguez et al. (Feb. 25, 2020, F074250) (nonpub. opn.) (Rodriguez), this court affirmed a judgment of conviction against Michael Chalillo Medrano (defendant) for his role in a murder. However, based on the postsentencing enactment of Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620), which gave trial courts discretion to strike firearm enhancements, the matter was conditionally remanded for further proceedings. Defendant now alleges error with regard to the trial court’s imposition of enhancements under Penal Code section 12022.53 (all further statutory references are to the Penal Code). In November 2021, this court issued an opinion rejecting defendant’s claim of sentencing error. Defendant filed a petition for rehearing seeking to assert a new claim based on a pending amendment to section 654, which has since taken effect as of January 1, 2022. The petition was granted, and supplemental briefing was filed. Section 654 now gives trial courts discretion in choosing the sentence to be imposed when a defendant is convicted under multiple provisions of the Penal Code for the same act. At the time of defendant’s original sentencing and during the proceedings on remand, the statute required punishment under the provision carrying the longest term of imprisonment. We accept the People’s concession that the change in law applies retroactively and necessitates further proceedings in this matter. The cause will be remanded to allow the trial court to consider resentencing defendant in light of the amendment to section 654. FACTUAL AND PROCEDURAL BACKGROUND A jury convicted defendant of premeditated murder (§§ 187, 189, subd. (a)) involving the special circumstances of lying in wait and killing someone to further the activities of a criminal street gang (§ 190.2, subd. (a)(15), (22)). The evidence showed defendant used a firearm and shot the victim six times at close range, including twice in the head. The jury made true findings on gun enhancement allegations pleaded pursuant to section 12022.53, subdivisions (d) and (e)(1). Defendant was also convicted of