People v. Ogura CA2/6

Filed 3/11/22 P. v. Ogura CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Civ. No. B303322 (Super. Ct. No. KA089210) Plaintiff and Respondent, (Los Angeles County)

v.

KARL KATSUMI OGURA,

Defendant and Appellant.

A trial judge resentences under Penal Code section 1170.95, subdivision (e).1 The target offense was not charged. The trial court has discretion to resentence on an offense not charged that reflects the culpability of the defendant. We reverse and remand for a retrial on section 186.22, a gang enhancement. In all other respects, we affirm. FACTS In December 2011, a jury found Karl Katsumi Ogura guilty of first degree murder (§§ 187, subd. (a), 189) and found true that

1 All statutory references are to the Penal Code.

the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced Ogura to 25 years to life for the murder, plus 10 years for the gang enhancement. On appeal, we reduced Ogura’s conviction to second degree murder pursuant to People v. Chiu (2014) 59 Cal.4th 159, reduced the sentence to 15 years to life, and struck the gang enhancement on the People’s concession that it was improperly imposed. (People v. Ogura (Nov. 13, 2014, B239122) [nonpub. opn.].) Section 1170.95 Petition In April 2019, Ogura filed a petition for resentencing under section 1170.95. He alleged he was convicted of murder under the natural and probable consequences doctrine and could not now be convicted of murder because of changes to sections 188 and 189. The prosecution conceded that Ogura is entitled to relief under section 1170.95. The only question was the target offense for the purpose of resentencing. The “target offense” is the intended offense from which the natural and probable consequences arise. (People v. Medina (2009) 46 Cal.4th 913, 920.) The target offense was not charged at trial. Ogura argued the target offense is simple battery. (§ 242.) That is the only offense advanced by the prosecution at trial and on which the jury was instructed. The People argued the target offense is assault by means likely to produce great bodily injury. (§ 245, subd. (a)(4).) That is the offense justified by the facts of the case. The People pointed out that Ogura joined Christopher Hernandez in hitting and kicking the victim as he fell to the ground.