[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 ...