People v. Prieto CA3

Filed 10/21/22 P. v. Prieto CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094853

Plaintiff and Respondent, (Super. Ct. No. 04F02476)

v.

JESUS ALEJANDRO PRIETO,

Defendant and Appellant.

Defendant Jesus Alejandro Prieto appeals the trial court’s denial of his petition for resentencing under Penal Code1 section 1170.95 (now section 1172.6).2 He contends the

1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will refer to the statute as section 1170.95 throughout the opinion.

1

trial court performed improper factfinding at the prima facie stage. We will affirm the judgment. BACKGROUND On March 6, 2004, defendant was involved in a driveby shooting resulting in the death of Donald Monroe and injuries to several other people. (People v. Prieto (Dec. 15, 2008, C052361) [nonpub. opn.].) A jury found defendant guilty of first degree murder (§ 187, subd. (a)), and found true four related allegations and special circumstances: defendant was a principal in the murder in which at least one principal intentionally and personally discharged a firearm causing death (§ 12022.53, subds. (b)-(e)(1)), the commission of the murder was done for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), the murder was intentional and perpetrated by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and defendant intentionally killed Monroe while being an active street gang member for the street gang (§ 190.2, subd. (a)(22)). The jury also found defendant guilty of three counts of attempted murder (§ 664/187), finding true the allegation for each that the attempted murders were done for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). At trial, the jury was instructed on the natural and probable consequences theory for murder generally. For first degree murder specifically, the jury was instructed on two theories under CALCRIM No. 521: (1) deliberate and premeditated murder and (2) murder by shooting a firearm from a motor vehicle. For the latter, the instructions stated: “The defendant committed this kind of murder if: [¶] 1. The defendant Jesus Prieto was a principal in the offense charged, and another principal in the offense charged shot the firearm from a motor vehicle; [¶] 2. And the person who shot the firearm intentionally shot at a person who was outside the vehicle; [¶] AND [¶] 3. The defendant Jesus Prieto, and the actual shooter, both intended to kill that person.” The first degree murder instructions stated, “All other murders are of the second degree.”