People v. Medina CA2/5

Filed 6/13/24 P. v. Medina CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B328814

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA118471) v.

ENRIQUE DURAN MEDINA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Debra A. Cole, Judge. Reversed and remanded with directions. Benjamin Owens, 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, Assistant Attorney General, Charles S. Lee and Michael S. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Enrique Duran Medina (defendant) appeals from the trial court’s denial of his Penal Code section 1172.61 resentencing petition as to his attempted murder conviction. The Attorney General concedes the trial court erred in denying the petition at the prima facie stage without issuing an order to show cause. We reverse and remand with directions. BACKGROUND In December 2011, defendant and two codefendants were charged with murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664) with allegations that these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant also faced three allegations that he personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)). It was further alleged that a principal committed the same gun allegations (§ 12022.53, subds. (b)-(e)(1)). In summary, the charges stemmed from a 2010 incident where gunshots were fired from inside a vehicle occupied by defendant and two codefendants in the direction of two victims, Robert Velasquez and Ruth Rodriguez, who were sitting next to each other on a wall in front of Rodriguez’s residence. Rodriguez took cover behind the wall and Velasquez tried to run away. Velasquez died from a gunshot wound to the chest and Rodriguez was not injured. At trial, the jury was given CALCRIM 600 and CALCRIM 402 which instructed on the “kill zone” theory and the natural and probable consequences doctrine, respectively, as to the attempted murder charge only. No felony murder instruction