People v. Badillo CA2/2

California Court of Appeal Feb 10, 2022 No. B309152Unpublished

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Holding. The court held that although the trial court erred by summarily denying the defendant's section 1170.95 petition without appointing counsel, the error was harmless because the record of conviction established as a matter of law that the defendant was the actual killer who acted with malice.

Issues

Whether the trial court erred in summarily denying a section 1170.95 petition without appointing counsel.
Whether the summary denial of a section 1170.95 petition constitutes prejudicial error when the record of conviction establishes the defendant was the actual killer who acted with malice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the record establishes as a matter of law that defendant was the actual killer.”

“the jury’s guilty verdict necessarily constitutes a finding that he committed the murder.”

“the jury was never instructed on a natural and probable consequences theory or felony-murder theory, his murder conviction could not rest on either theory of vicarious liability”

Filed 2/10/22 P. v. Badillo CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B309152

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA298295) v.

EMILIO CARRILLO BADILLO,

Defendant and Appellant.

APPEAL from an order of the Los Angeles Superior Court, Steven D. Blades, Judge. Affirmed.

John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel Chang and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent. ****** Emilio Carrillo Badillo (defendant) argues that the trial court erred in denying his petition for resentencing under Penal Code section 1170.95.1 There was no prejudicial error, so we affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts In 2006, defendant and his wife were walking along the side of a freeway interchange overpass after getting into a minor auto accident. Defendant’s wife was carrying their two-year-old daughter in her arms; she was also 22 or 23 weeks pregnant. There was more than a 30-foot drop to the road below the overpass. Without any warning, defendant shoved his wife toward the overpass’s railing. Caught off guard, the wife was unable to hold onto the toddler, who plummeted over the railing. Defendant pushed his wife a second time, and she tumbled over the railing to the road far below. The wife and daughter were injured, but survived. The fetus died. (People v. Badillo (Sept. 29, 2009) B205547 [nonpub. opn.], at pp. 3-7.) II. Procedural Background A. Underlying conviction, sentence, and appeal The People charged defendant with (1) the murder of the fetus (§ 187, subd. (a)), (2) the attempted premeditated murder of his wife (§§ 664, 187, subd. (a)), (3) the attempted murder of his

People v. Badillo CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B309152

EMILIO CARRILLO BADILLO,

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