People v. Medina CA2/5

Filed 2/28/22 P. v. Medina CA2/5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B304477

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA118471) v.

ENRIQUE DURAN MEDINA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed in part, reversed and remanded with direction. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________

Defendant and appellant Enrique Medina appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.95. Due to an intervening change in the law, the Attorney General agrees the denial must be reversed as to the attempted murder count and the matter remanded. We agree. FACTUAL AND PROCEDURAL BACKGROUND 1. The Underlying Crime, Conviction and Appeal Defendant was convicted of first degree murder and attempted premeditated murder for his part in a gang-related drive-by shooting. The two victims, Robert Velasquez and Ruth Rodriguez, were sitting on a wall in front of Rodriguez’s home. An SUV with three men in the vehicle stopped in front of the victims. The front passenger pointed a gun out the window and opened fire. Rodriguez took cover behind the wall and Velasquez attempted to flee. Velasquez was killed; Rodriguez was not. Defendant and two codefendants were charged with the crimes, and with firearm and gang enhancements. The jury was instructed on the natural and probable consequences doctrine only with respect to attempted murder; that is, the jury could determine the attempted murder of Rodriguez was a natural and probable consequence of the intentional murder of Velasquez. The jury convicted all three defendants of murder and attempted murder and found the gang enhancement true.