People v. Acedo CA2/6

Filed 1/27/22 P. v. Acedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B306027 (Super. Ct. No. VA069767) Plaintiff and Respondent, (Los Angeles County)

v.

RICHARD ACEDO,

Defendant and Appellant.

Richard Acedo appeals a postjudgment order denying his petition to vacate his murder conviction and to be resentenced under Penal Code section 1170.95.1 The order was made prior to the Supreme Court’s recent decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the rules regarding the adjudication of resentencing petitions under section 1170.95. At our request, the parties submitted supplemental briefing discussing Lewis. Appellant contends “the matter should be

All statutory references are to the Penal Code unless 1

otherwise stated.

remanded for proceedings consistent with section 1170.95, subdivision (c), as interpreted by the Court in [Lewis].” The People maintain the trial “court properly denied the petition because the record of conviction unquestionably establishes that appellant is not entitled to relief as a matter of law.” We agree with the People. FACTUAL AND PROCEDURAL BACKGROUND A detailed recitation of the underlying facts is set forth in our prior opinion in this case. (See People v. Acedo et al. (Nov. 20, 2007, B189837) [nonpub. opn.].) In short, appellant and a co- defendant were jointly tried before a jury and convicted of multiple crimes arising from a “gangbanging” incident. Appellant was convicted of second degree murder (§§ 187, subd. (a), 189), two counts of attempted premeditated murder (§§ 664, 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The jury also found true firearm and gang enhancements that were alleged as to each count. (§§ 186.22, subd. (b), 12022.53, subds. (b)-(e).) The trial court sentenced appellant to a total prison term of 157 years to life. We affirmed the conviction and sentence. (People v. Acedo et al., supra, B189837).) Following the enactment of section 1170.95, appellant filed a pro per petition seeking to vacate his murder conviction and to be resentenced under that section. Appellant alleged he was convicted of “2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and requested the appointment of his trial counsel, Victor Salerno. The trial court summarily denied the petition, finding “[t]he appellate opinion affirming the petitioner’s conviction and sentence reflects that the petitioner was convicted of murder on a theory of being a direct perpetrator and not on a theory of felony