Filed 2/28/22 P. v. Medina CA2/5
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304477
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, John A. Torribio, Judge. Affirmed in part,
reversed and remanded with direction.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Acting Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant and appellant Enrique Medina appeals from the
trial court’s denial of his petition for resentencing under Penal
Code section 1170.95. Due to an intervening change in the law,
the Attorney General agrees the denial must be reversed as to
the attempted murder count and the matter remanded. We
agree.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Crime, Conviction and Appeal
Defendant was convicted of first degree murder and
attempted premeditated murder for his part in a gang-related
drive-by shooting. The two victims, Robert Velasquez and Ruth
Rodriguez, were sitting on a wall in front of Rodriguez’s home.
An SUV with three men in the vehicle stopped in front of the
victims. The front passenger pointed a gun out the window and
opened fire. Rodriguez took cover behind the wall and Velasquez
attempted to flee. Velasquez was killed; Rodriguez was not.
Defendant and two codefendants were charged with the
crimes, and with firearm and gang enhancements. The jury was
instructed on the natural and probable consequences doctrine
only with respect to attempted murder; that is, the jury could
determine the attempted murder of Rodriguez was a natural and
probable consequence of the intentional murder of Velasquez.
The jury convicted all three defendants of murder and
attempted murder and found the gang enhancement true.
2
However, the jury found the personal use firearm allegations
against defendant not true.1 Defendant was sentenced to prison
for 25 years to life for the murder with a consecutive term of 15
years to life for the attempted murder.
On appeal, defendant’s conviction was affirmed, with minor
modifications to his sentence not relevant to this appeal. (People
v. Medina (Feb. 5, 2015, B249059) [nonpub. opn.].)
2. Defendant’s Section 1170.95 Petition
On April 2, 2019, defendant filed a form petition for
resentencing under section 1170.95, which allows defendants
convicted of murder under the felony-murder rule or natural and
probable consequences doctrine to seek resentencing under
certain circumstances. The petition was filed by the counsel who
had represented defendant at trial.
The court appointed defendant’s trial attorney to represent
him and ordered the prosecution to file a response.
In its response, the prosecutor argued defendant was not
eligible for relief because he was convicted of murder on the basis
of direct aiding and abetting; the jury was not instructed on
felony murder or natural and probable consequences with respect
to murder. Although the response did not expressly argue that
1 The jury found true the allegations against defendant’s
codefendants that a principal was armed. It is not clear whom
the jury believed to have been the shooter.
3
the statute did not apply to attempted murder, the District
Attorney did argue that relief was available only for convictions
of murder.
The court held a short hearing on the petition, in which the
following colloquy occurred:
“The Court: The court has read the materials. Based on
the total circumstances, the court does not believe Mr. Medina is
eligible for relief.
“[Defense counsel]: Correct, Your Honor. I think the only
time that a natural and probable consequences was used was for
the attempt murder, and at this point the Legislature is not
allowing that –
“The Court: Correct.
“[Defense counsel]: -- attempt murder to be used.
“The Court: That’s correct. That’s outside the gamut of the
statute.”
The court denied the petition. Defendant filed a timely
notice of appeal.
3. Appeal, Review and Transfer
On appeal, we affirmed, concluding, as did the trial court,
that section 1170.95 applies only to murder, not attempted
murder. (People v. Medina (Dec. 14, 2020, B304477) [nonpub.
opn.].) Defendant sought Supreme Court review. On
December 29, 2021, the Supreme Court granted review, and
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transferred the matter back to this court with directions to vacate
our decision and reconsider the matter in light of the Senate Bill
No. 775 (Stats. 2021, ch. 551) amendments to section 1170.95.
We vacated the decision and the parties submitted supplemental
briefing.
DISCUSSION
In his initial briefing in this court, defendant acknowledged
that he was convicted of murder on a theory of direct aiding and
abetting, and that, therefore, section 1170.95 does not apply to
that conviction; he has not changed his position in that respect.
However, he argued then and now that section 1170.95 relief
applies to convictions for attempted murder. In light of Senate
Bill No. 775, the Attorney General concedes the point, and we
agree.2 (People v. Porter (2022) 75 Cal.App.5th 644, ___ [288
Cal.Rptr.3d 668, 670; People v. Montes (2021) 71 Cal.App.5th
1001, 1006.) Remand is therefore necessary for the trial court to
address further only the attempted murder count.
DISPOSITION
The order denying defendant's section 1170.95 petition as
to the murder count is affirmed. The order denying the petition
as to the attempted murder count is reversed, and the matter is
2 Section 1170.95, subdivision (a) as amended, now provides
that a petition for resentencing may be filed by “[a] person
convicted of . . . attempted murder under the natural and
probable consequences doctrine . . . .”
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remanded with directions to proceed in a manner consistent with
the pertinent provisions of section 1170.95 as to the attempted
murder count only.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR J.
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