People v. Gudino CA2/5

Filed 6/16/23 P. v. Gudino CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B324816

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA133041) v.

MANUEL GUDINO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

No Appearance for Plaintiff and Respondent. _____________________

Manuel Gudino appeals the trial court’s order denying his petition for vacatur of his murder conviction and resentencing 1 under Penal Code section 1172.6. In 2016, Gudino was convicted of one count of first degree murder (§ 187, subd. (a); count 1) with an enhancement for personal discharge of a firearm causing death (§ 12022.53, subd. (d)), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). Gudino admitted that he suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). He was sentenced to 50 years to life in count 1, calculated as 25 years to life each for the murder conviction and firearm enhancement, plus a concurrent two-year term in count 2, and a consecutive term of five years pursuant to section 667, subdivision (a)(1). The trial court struck the prior strike conviction for purposes of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). In 2017, another panel of this court affirmed the convictions. (People v. Gudino (Mar. 29, 2017, No. B271693) [nonpub. opn.].) In 2018, Senate Bill No. 1437 (2017–2018 Reg. Sess.) was enacted. The legislation amended sections 188 and 189, and added former section 1170.95 (now § 1172.6). (Stats. 2018, ch. 1015, §§ 2–4.) Senate Bill No. 1437 limited application of the felony murder rule and eliminated murder based on the natural and probable consequences doctrine. Through former section 1170.95, Senate Bill No. 1437 also created a procedure by which a defendant previously convicted of murder under either of those