People v. Magana CA2/5

Filed 8/18/21 P. v. Magana 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B303377

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA164867)
v.

ERICK ALEXANDER
MAGANA,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Marilee Marshall for Defendant and Appellant.
Rob Bonta, Xavier Becerra, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill, Amanda
Lopez, and Heidi Salerno, Deputy Attorneys General, for Plaintiff
and Respondent.
 I. INTRODUCTION

Defendant Erick Alexander Magana appeals from an order
denying his petition for resentencing pursuant to Penal Code1
section 1170.95. We affirm.

II. BACKGROUND

A. Factual Background

We recount the factual background as stated in defendant’s
direct appeal (People v. Magana (Mar. 2, 2005, B127841)
[nonpub. opn.]), supplemented by our review of the trial record.
“Connie Lopez had been riding with her ex-husband in his van at
approximately 3:30 or 3:45 p.m. on September 7, 1994. Their four
children were also in the van. When stopped at a street light in
front of Hollywood High School, Ms. Lopez saw four young men,
including defendant, in a blue Camaro automobile stopped in
front of them. The young men were speaking in loud voices to
some young women seated on a bus bench. Ms. Lopez described
the teenaged young men as saying ‘bad things’ to the women on
the bus bench. Roland Ruiz, the victim, was standing on a grassy
area behind the young women on the bus bench. Ms. Lopez
testified, ‘[T]he driver come out and then the passenger, and then
the other two followed them.’ The four young men got out of the
Camaro and walked up to Mr. Ruiz, all the while gesturing with
their hands. The driver was gesturing with his hands. More
than one of the other young men were gesturing with their
hands. At trial, Ms. Lopez testified at first that the front seat

1 Further statutory references are to the Penal Code.

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passenger was not gesturing with his hands because he was
holding a gun. (Ms. Lopez told a detective the day after the
shooting that the front seat passenger with the gun in fact made
hand gestures. However, that fact was not reflected in the
detective’s report.)[2] Three of the young men walked in front of
the armed youngsters [sic] as they walked towards Mr. Ruiz. The
driver then punched Mr. Ruiz. The three young men were ‘very
close’ to Mr. Ruiz when the fatal shot was fired. Before being
fatally shot, Mr. Ruiz was unarmed and did not have anything in
his hands. The young man with the gun began pointing it at
‘everybody’ including Ms. Lopez. Ms. Lopez screamed at the
armed youngster when he pointed the gun at her. Ms. Lopez
testified, ‘I thought he was going to shoot me.’ The four young
men then ran together northbound on Highland. Ms. Lopez later
identified defendant from a photographic lineup as one of the
individuals involved in the shooting. Ms. Lopez also identified
photographs of the blue Camaro in which the young men had
been riding.
“Testimony was also provided by Irene Ruiz and a friend,
Yajaira Arias. They drove to the school in order to pick up
Ms. Ruiz’s brother, Mr. Ruiz, the victim. Ms. Ruiz, Ms. Arias,
and Mr. Ruiz were members of a local gang. While at the corner
of Selma and Highland Streets, Ms. Ruiz saw four young men
running together toward her truck from the direction of the high
school. The four young men were running northbound on
Highland. As the four young men approached Ms. Ruiz’s car, she
testified, ‘They asked me for a ride.’ Ms. Ruiz asked where they
were from. When one of the young men responded with the name
of a different gang, Ms. Arias responded, ‘Fuck [that gang].’ The

2 Ms. Lopez also told the detective that the gun was chrome.

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young men responded, ‘Fuck [your gang].’[3] Ms. Arias and Ms.
Ruiz then started swearing at the four young men. In turn, the
four young men were swearing at Ms. Arias and Ms. Ruiz. One of
the four young men pointed a gun at Ms. Ruiz and Ms. Arias and
said ‘they’ wanted to shoot them.[4] One of the four young men
attempted to climb into the pickup truck. However, Ms. Ruiz
drove away, turned the truck around, and attempted to run the
four young men down. Ms. Ruiz drove to a liquor store to locate
members of her gang. Thereafter, four men who were members
of Ms. Ruiz’s gang got into her truck. Ms. Ruiz drove around
looking for the young men who had threatened her with a gun,
but was unable to find them. Ms. Ruiz then drove to Hollywood
High School to get her brother. Ms. Ruiz saw an ambulance at
the school. Ms. Ruiz saw her brother, Mr. Ruiz, on the ground.
She later learned that her brother had been shot. Ms. Ruiz
identified two individuals from a photographic lineup as two of
the four individuals who asked for a ride and then pulled a gun.
At trial, Ms. Ruiz pointed out defendant as one of the young men
she saw running on September 7, 1994, but further stated, ‘I
don’t remember because it’s been a long time.’

3 Ms. Arias, Ms. Ruiz, and the victim, Mr. Ruiz, were
members of the 18th Street gang. Defendant was a member of
the Mara Salvatrucha gang. Jose Andres, who was identified by
Ms. Arias as one of the men who ran away from the shooting and
whose fingerprints were recovered from the Camaro, was also a
member of the Mara Salvatrucha gang. The interaction between
defendant, Mr. Andres, and the other young men with Ms. Ruiz
and Ms. Arias occurred in 18th Street gang territory.

4 Ms. Ruiz testified that the gun was black.

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 “Ms. Arias identified defendant’s photograph from a
photographic lineup, stating: ‘“Photo 3 is the person that I saw
running away from the scene of the shooting. I saw him holding
his left hand near his waistband. I thought he had a gun.”’
Ms. Arias identified defendant a second time at trial as one of the
young men she saw running on the day of the shooting.
“Los Angeles Police Officer Edward Sakowski responded to
a radio call regarding a shooting at Hollywood High School. As
he arrived at the school, he noticed a crowd of approximately 100
to 200 students on the grass and [one] person on the ground.
Two school employees were administering cardio pulmonary
resuscitation to the victim, Mr. Ruiz. Officer Sakowski requested
assistance and [an] ambulance. Some students pointed out a blue
Camaro automobile on Highland Avenue that had been involved
in the shooting. The ignition on the car had been ‘punched.’
Officer Sakowski learned that those involved in the shooting ran
northbound on Highland Avenue. An ambulance took Mr. Ruiz to
the hospital where he died as the result of a single gunshot
wound to the chest.
“Dionisio Grafil, a forensic print specialist with the Los
Angeles Police Department recovered approximately 35 latent
fingerprints from the blue Camaro. Defendant’s fingerprints
were found to match those of some taken from the outside
driver’s door.[5] Officer Gustavo Chacon was a gang investigator
at the time of the shooting. Officer Chacon was familiar with the
gangs in the area of Hollywood High School. Officer Chacon
knew Mr. Ruiz as a member of a local gang. Officer Chacon

5 Mr. Andres’s fingerprints matched those taken from the
inside passenger-side-front window, the outside passenger-side
trunk, and the outside driver’s-side-rear panel, near the trunk.

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identified defendant as a member of a rival gang in the area.
Officer Chacon had previously spoken with defendant. Officer
Chacon testified defendant had tattoos consistent with those
worn by the local gang. Officer Chacon demonstrated the gang
signs for the members of the rival gang, wherein they gestured
with their hands to depict the letters of the gang.” (People v.
Magana, supra, B127841.)

B. Trial

On April 2, 1998, the Los Angeles County District Attorney
(District Attorney) alleged in a single-count information that on
September 7, 1994, defendant murdered Mr. Ruiz (§ 187, subd.
(a)). The District Attorney further alleged that a principal was
armed with a handgun during the commission of the murder
(§ 12022, subd. (a)(1)). A jury found defendant guilty of second
degree murder and found true the allegation that a principal was
armed with a handgun. Defendant timely appealed, and on
March 2, 2005, this court affirmed his conviction. (People v.
Magana, supra, B127841.)

C. Resentencing Petition

On January 7, 2019, defendant petitioned for resentencing
pursuant to section 1170.95. Defendant asserted in a form
petition that: “[a] complaint, information, or indictment was filed
against [him] that allowed the prosecution to proceed under a
theory of . . . murder under the natural and probable
consequences doctrine”; “[a]t trial, [he] was convicted of . . . 2nd
degree murder pursuant to . . . the natural and probable

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consequences doctrine”; and “[he] could not now be convicted of
murder because of changes to [section] 188, effective
January 1, 2019.”
On April 29, 2019, defendant filed a response to the District
Attorney’s opposition.6
On June 4, 2019, the trial court issued an order to show
cause why the petition for resentencing should not be granted.
On August 27, 2019, September 5, 2019, and
October 1, 2019, defendant filed additional briefs in which he
argued that he was eligible for resentencing.
The trial court conducted a hearing on August 27, 2019,
September 24, 2019, and October 23, 2019. Neither the District
Attorney nor defendant submitted additional evidence in
connection with that hearing. Instead, both parties relied on the
record of conviction to argue their respective positions.
On November 4, 2019, the trial court issued a minute order
denying the petition. As an initial matter, the court observed
that it was the prosecution’s burden to prove, beyond a
reasonable doubt, that defendant was ineligible for resentencing
in this case because he “could be found guilty under the law as it
currently exists.” Based on its review of the evidence and
argument of counsel, the court concluded that defendant was not
eligible for resentencing because he “acted with malice when he
directly aided and abetted the murder of the victim.”

6 The District Attorney’s opposition is not part of the record
on appeal but defendant, in his April 29, 2019, filing, referenced
such an opposition. Defendant conceded some uncertainty about
whether the document was filed since he described it as
“apparently filed and served.”

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 The trial court then explained: “This case involved a
calculated decision by two documented known gang members,
[defendant] and Mr. Andres, plus two other young male
Hispanics, to go on a mission into rival gang territory in a stolen
car. They entered into this rival territory with at least one
loaded firearm. There was evidence that there were two guns, a
chrome gun used to kill the victim and a black gun used by
[defendant] to threaten witnesses after the murder. They drove
in and stopped at the [h]igh [s]chool right at the time when school
commonly was ending which exposed many potential targets. As
argued by the prosecutor, a reasonable inference from the
evidence was that [defendant] was the driver of the car based on
his print on the driver’s door and Mr. Andres was the front
passenger based on his prints on the passenger side door and a
tentative photo lineup identification. [Defendant] was the first
one to get out and was followed by Mr. Andres, who already had
the loaded chrome firearm out as he exited the car. The driver
[(defendant)] immediately started confronting the victim by
making hand gestures that were consistent with flashing his
gang signs. The victim didn’t have anything in his hand nor did
he say anything to the group to provoke them. The four
approached the victim in such a calculated manner as to conceal
the fact one of their number was armed with a firearm, the driver
[(defendant)] and two others in front and the front passenger (Mr.
Andres) slightly behind. The driver [(defendant)] diverted the
victim’s attention by punching him in the face causing him to fall
to the ground which gave the front passenger (Mr. Andres) the
opportunity to immediately [shoot] the victim while he was on the
ground.[7] There was no fight, no argument, just an execution.

7 The record does not reflect that Mr. Ruiz fell to the ground

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 “The four fled the area as Mr. Andres repeatedly pointed
the gun at others who were nearby. When they came across Ms.
Ruiz and [Ms. Arias], [defendant] continued to claim his gang in a
hostile manner. According to Ms. Ruiz, he had his own black gun
which he pointed at the young women and stated ‘they should
shoot them too.’”
Defendant timely appealed.

III. DISCUSSION

A. Section 1170.95

“Senate Bill [No.] 1437 [(Senate Bill 1437)] was enacted to
‘amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)
Substantively, Senate Bill 1437 accomplishes this by amending
section 188, which defines malice, and section 189, which defines
the degrees of murder, and as now amended, addresses felony
murder liability. Senate Bill 1437 also adds the aforementioned
section 1170.95, which allows those ‘convicted of felony murder or
murder under a natural and probable consequences theory . . .
[to] file a petition with the court that sentenced the petitioner to

after defendant punched him. The trial court’s misstatement,
however, does not affect our analysis of whether the court erred
in denying the petition.

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have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts . . . .’ (§ 1170.95, subd. (a).)
“An offender may file a petition under section 1170.95
where all three of the following conditions are met: ‘(1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine[;] [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[;] [¶] [and] (3)
The petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)–(3).)” (People
v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
Where a petitioner files a section 1170.95 petition that
contains all of the statutorily required information and requests
counsel, the trial court must appoint counsel and order briefing.
(People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021
WL 3137434, at *3–*10].) The court then evaluates whether the
petitioner made a prima facie showing that he is eligible for
relief. (Id. at *3.) If the petitioner has made such a showing, the
trial court “shall issue an order to show cause.” (§ 1170.95, subd.
(c).)
“The trial court must then hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the
sentence and resentence the petitioner on any remaining counts
in the same manner as if the petitioner had not . . . previously
been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ (§ 1170.95,) subd. (d)(1).) . . . .

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Significantly, if a hearing is held, ‘[t]he prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ (§ 1170.95,
subd. (d)(3).) ‘[T]he burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.’ (§ 1170.95, subd. (d)(3).) ‘If the prosecution
fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges.’ (§ 1170.95, subd. (d)(3).)” (Martinez, supra, 31
Cal.App.5th at pp. 723–724.)

B. Analysis

Defendant contends that the trial court erred by finding he
was ineligible for resentencing under section 1170.95 because the
prosecution failed to meet “its burden of proving beyond a
reasonable doubt that [defendant] was a direct aider and abettor
of the murder of Ruiz.” “[T]o establish a petitioner’s ineligibility
for section 1170.95 relief for failure to satisfy the third condition
[that ‘[t]he petitioner could not be convicted of first or second
degree murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019’ (§ 1170.95, subd. (a)(3); Martinez,
supra, 31 Cal.App.5th at p. 723)], the prosecutor must prove
beyond a reasonable doubt the elements of first or second degree
murder under the current law.” (People v. Lopez (2020) 56
Cal.App.5th 936, 951, review granted Feb. 10, 2021, S265974.)8

8 We disregard defendant’s argument, raised for the first
time in his reply brief, that the trial court applied the wrong
standard of proof at the section 1170.95, subdivision (d)(3)

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“[W]e review sufficiency of the evidence challenges to judgments
of conviction for substantial evidence. The same standard applies
to the review of postjudgment orders . . . .” (Id. at p. 953.)
Substantial evidence supports a finding that defendant
acted as an aider and abettor and with the intent to kill Mr. Ruiz.
(See People v. Chiu (2014) 59 Cal.4th 155, 167 [“Under [direct
aider and abettor] principles, the prosecution must show that the
defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or
facilitating its commission”]; People v. Gentile (2020) 10 Cal.5th
830, 850 (Gentile) [under direct aider and abettor theory of
liability for murder, “‘the aider and abettor . . . know[s] and
share[s] the murderous intent of the actual perpetrator’”].)
Defendant drove Mr. Andres, a fellow gang member, and two
others in a stolen car into rival gang territory. Defendant and
the others then approached Mr. Ruiz, a rival gang member, with
defendant walking in front of the shooter, thereby concealing the
shooter’s gun from Mr. Ruiz’s view. Defendant flashed gang
signs at Mr. Ruiz and punched him immediately before the
shooter shot and killed him. Defendant and the others fled the
scene together and continued to demonstrate their gang
allegiance by swearing at rival gang members Ms. Ruiz and Ms.
Arias. This evidence supports a finding that defendant shared
the shooter’s intent to kill Mr. Ruiz and aided and abetted the
shooting. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1054
[among the factors which may be considered in determining
whether a person has aided and abetted the commission of a

hearing. (Julian v. Hartford Underwriters Ins. Co. (2005) 35
Cal.4th 747, 761, fn. 4.)

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crime are “‘presence at the scene of the crime, companionship,
and conduct before and after the offense’”].) A direct aider and
abettor is liable for murder notwithstanding changes made by
Senate Bill 1437 and thus is ineligible for relief under section
1170.95. (See Gentile, supra, 10 Cal.5th at p. 848.) The trial
court therefore did not err in denying defendant’s petition for
resentencing.

IV. DISPOSITION

The order denying the section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.

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