People v. Guerrero CA2/5

Filed 4/26/22 P. v. Guerrero CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308529

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. BA332015)

GABRIEL GUERRERO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Jared D. Moses, Judge. Reversed and remanded with directions. William J. Capriola, 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, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and David W. Williams, Deputy Attorney General, for Plaintiff and Respondent.

Years ago, a trial jury convicted defendant and appellant Gabriel Guerrero (defendant) of first degree murder and conspiracy to commit murder; the jury was instructed it could convict defendant on the conspiracy charge if it found he conspired to commit an assault, but a murder was a natural and probable consequence of that planned assault. More recently, the trial court denied defendant’s Penal Code1 section 1170.95 petition seeking to vacate his murder conviction—without first issuing an order to show cause. The Attorney General concedes reversal and remand is required because the record does not show defendant is ineligible for relief as a matter of law. That will be our disposition after a short discussion of the facts, the pertinent procedural history, and the law. On April 26, 2005, six men, including murder victim Ryan Dasalla (Dasalla), beat up one of defendant’s brothers. In retaliation, defendant participated in the shooting of Dasalla the following day. Defendant drove a van to pick up two other men, one of whom was another of defendant’s brothers and was carrying a gun. When the group saw Dasalla, defendant and his accomplices got out of the van and a fight broke out. Defendant wrestled with Dasalla for a time, and eventually defendant’s brother who was armed shot and killed Dasalla. Defendant was charged with conspiracy, murder, and possession of a firearm by a felon. He pled no contest to the felon in possession of a firearm charge and, at trial in 2010, a jury found him guilty of murder and conspiracy to commit murder.