People v. Higuera CA2/5

Filed 8/3/23 P. v. Higuera CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B325372

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. TA073018)

MICHAEL HIGUERA et al.,

Defendants and Appellants.

APPEALS from orders of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Dismissed and Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Michael Higuera. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant Hector Huerta. No appearance by Plaintiff and Respondent.

At a jury trial in 2004, defendants Michael Higuera (Defendant Higuera) and Hector Huerta (Defendant Huerta) were each convicted of two counts of attempted willful, deliberate, and premeditated murder. As to each count, the jury found true allegations that both defendants personally and intentionally discharged a firearm within the meaning of Penal Code section 12022.53(c).1 Each defendant received a sentence of life in prison, plus a 20-year determinate term. Many years later, defendants petitioned for resentencing under section 1172.6 (former section 1170.95). After appointing counsel and receiving briefs from the People and defendants, the trial court held a hearing for each defendant and denied the petitions based on their failure to make a prima facie case for relief. At the hearing on Defendant Higuera’s petition, the trial court reasoned he “was the actual shooter, and he was not convicted under a natural and probable consequences theory. So due to the fact that he was the shooter in that particular case, he . . . cannot make a prima facie showing[ and] his petition for resentencing will be denied forthwith.” At the hearing on Defendant Huerta’s petition, the trial court emphasized “there was no jury instruction[ ] ever given that allowed the jury to impute malice because defendant, again, was the perpetrator.”2