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People v. Larios

California Court of Appeals, Fifth District

December 3, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Richard Rodriguez LARIOS, Defendant and Appellant.

         [256 Cal.Rptr.3d 225] APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. (Super. Ct. No. VCF211993C)

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         COUNSEL

         Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.

         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

         PEÑA, J.

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          Richard Rodriguez Larios appeals from an order denying a petition for recall of sentence and resentencing pursuant to Penal Code section 1170.95. (Statutory references are to the Penal Code unless otherwise stated.) This order is appealable pursuant to section 1237, subdivision (b), as an order after judgment affecting the substantial rights of the defendant. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 600-601, 179 Cal.Rptr.3d 365, 336 P.3d 686');">336 P.3d 686 [denial of petition for recall and resentencing appealable as order after judgment].) The convictions upon which Larios had petitioned were three counts of attempted murder, which were final at the time he filed his petition. Larios’s counsel has raised no issue on appeal and asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.) Larios’s counsel advised Larios, as did this court, of his right to file a supplemental brief to bring to this court’s attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106, 120, 51 Cal.Rptr.3d 98, 146 P.3d 547.) Larios filed a supplemental brief in which he challenges the applicability [256 Cal.Rptr.3d 226] of the natural and probable consequences doctrine to his case, and he requests resentencing under section 1170.95. After initial consideration of his arguments, this court requested briefing from counsel on the scope and applicability of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) to the crime of attempted murder, and in particular, final convictions of attempted murder. We directed counsel to discuss the recent cases of People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S258234 (Munoz ) and People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175 (Lopez ), which have addressed similar issues. Although we find ourselves in fundamental disagreement with the Lopez and Munoz decisions on the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder, we agree with their ultimate conclusion that section 1170.95 provides no relief for the crime of attempted murder. Consequently, we affirm the trial court’s order denying relief to Larios on his petition.

          PROCEDURAL AND FACTUAL HISTORY

         We grant Larios’s request to take judicial notice, pursuant to Evidence Code section 452, subdivision (d), of the unpublished opinion in People v. Larios 2011 WL 3655165 (Cal.App.5th. Aug. 19, 2011, F059866) (Larios I). This court summarized the relevant facts and judicial proceedings in Larios I as follows:

"... Larios and his codefendant Ronnie Zuniga were two of three Norteno occupants of a brown or tan Mercury Cougar automobile that stopped to get

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gas at a convenience store on Bardsley Avenue in Tulare. Already there at a gas pump was a black Nissan Maxima occupied by two Surenos, Irving Rodriguez and Juan Saucedo, and a friend of Rodriguez’s since childhood, 17-year-old Stephanie G. After some staring or ‘mad dogging’ between the rival gang members at the gas pumps, and a brief verbal exchange between Norteno Zuniga and Sureno Saucedo when the two men went inside the store to pay for gas, the Cougar followed the Maxima when the Maxima drove away from the convenience store. A short distance away, approximately five gunshots were fired from the Cougar, at least four of which struck the Maxima. None of the bullets struck any of the three occupants of the Maxima, although Stephanie G. received cuts from shattered window glass.
"A first trial ended in a mistrial when the jury could not reach a verdict. In the second trial, the subject of this appeal, a jury found both Larios and Zuniga guilty of three counts of premeditated attempted murder (Pen. Code, � � 664/187, subd. (a)) and one count of shooting at an occupied motor vehicle (� 246). The jury also found that the crimes were committed for the benefit of a street gang (� 186.22, subd. (b)(4)) and that a principal personally discharged a firearm in the commission of each crime (� 12022.53, subds. (c) and (e)(1)). Each defendant was sentenced to a term of 54 years to life." (Larios I, supra, F059866, fn. omitted.)

          In Larios I, this court directed the trial court to strike the 20-year section 12022.53 enhancement imposed and stayed on ...


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