Filed 12/14/20 P. v. Medina CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ENRIQUE DURAN MEDINA,

Defendant and Appellant.

B304477

(Los Angeles County

Super. Ct. No. VA118471)

APPEAL from an order of the Superior Court of Los 

Angeles County, John A. Torribio, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendant Enrique Medina’s petition for resentencing 

under Penal Code section 1170.95 was summarily denied.1 As 

defendant was not entitled to relief as a matter of law, we affirm.

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. 

However, the jury found the personal use firearm allegations 

against defendant not true.2 Defendant was sentenced to prison 

1 All undesignated statutory references are to the Penal 

Code.

2 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

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 

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 
4

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. 

DISCUSSION

On appeal, defendant concedes 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 

argues only that section 1170.95 relief applies to convictions for 

attempted murder.3 The cases which have considered the issue 

are in agreement that it does not. (People v. Lopez (2019) 

38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, 

S258175. See also People v. Love (2020) 55 Cal.App.5th 273, 279, 

petn. for review filed Nov. 9, 2020; People v. Alaybue (2020) 

51 Cal.App.5th 207, 222; People v. Dennis (2020) 47 Cal.App.5th 

838, 844, review granted July 29, 2020, S262184.)

4 We agree 

with those cases and affirm the trial court’s order.

3 The Attorney General notes defendant’s counsel conceded 

otherwise at the hearing on the petition, but does not argue 

forfeiture. 

4 There is a line of cases from the Fifth Appellate District 

which conclude that the law which enacted section 1170.95 did, 

in fact, abrogate the doctrine of natural and probable 

consequences as a basis for attempted murder, but only if raised 

by direct appeal from the underlying conviction. Those cases 
5

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

agree that section 1170.95 does not provide retroactive relief to 

defendants whose attempted murder convictions have become 

final. (People v. Sanchez (2020) 46 Cal.App.5th 637, 642−643, 

review granted June 10, 2020, S261768; People v. Medrano (2019) 

42 Cal.App.5th 1001, 1016−1018, review granted Mar. 11, 2020, 

S259948; People v. Larios (2019) 42 Cal.App.5th 956, 969−970,

review granted Feb. 26, 2020, S259983.)