People v. Duque CA4/3

Filed 3/24/23 P. v. Duque CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061514

v. (Super. Ct. No. 95CF2067)

PYER CAMACHO DUQUE, OPI NION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alan L. Amann and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Pyer Camacho Duque challenges an order denying his petition for resentencing under Senate Bill No. 1437. (Stats. 2018, ch. 1015, §§ 2-4 (SB 1437).) Although that bill limited the circumstances under which a person may be convicted of felony murder, it does not provide relief for felony murderers who actually killed their victim. Because the record of conviction shows appellant is such a person, the trial court properly denied his petition. FACTUAL AND PROCEDURAL BACKGROUND In 1995, appellant was involved in an attempted robbery during which the victim was shot and killed. Although other principals may have been involved in the incident, appellant was individually charged with first degree murder. (Pen. Code, §§ 1 187, subd. (a); 189, subd. (a).) The information also alleged a special circumstance that the murder occurred during the attempted commission of a robbery. (§ 190. 2, subd. (a)(17).) And it contained an enhancement allegation that appellant personally used a firearm during the murder. (§ 12022.5, subd. (a).) At trial, the prosecution’s sole theory of first degree murder was felony murder. In addition to instructing the jury on that theory, the trial court instructed on two theories of second degree murder, unpremeditated murder and implied malice. Accomplice instructions on direct aiding and abetting were also given, but not on the natural and probable consequences theory of aiding and abetting. After the jury convicted appellant as charged, the trial court sentenced him to life in prison without the possibility of parole. On appeal, the sole issue was the admissibility of appellant’s confession. Consequently, our opinion does not include a detailed description of appellant’s role in the underlying murder. (See People v. Duque (Feb. 24, 1998, G020420) [nonpub. opn.].) However, in affirming the judgment, we did say in our introductory paragraph that