People v. Avina CA4/3

FACTS

In January 2018, Avina was charged, by way of an amended felony complaint, with nine counts, including the attempted murders of A.M., F.M., and J.M. In connection with the attempted murder of J.M., it was alleged Avina acted with premeditation. All three attempted murders were alleged to have been committed for the benefit of a criminal street gang. It was alleged Avina was a principal in the crimes and that “another principal in the offense intentionally discharged a firearm.”

1 All further statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to the statute as section 1172.6 throughout the opinion. 2 Avina also was charged with three counts of second degree

robbery (§§ 211 & 212.5, subd. (c)), two counts of street terrorism (§ 186.22), and one count of carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subds. (a) & (c)(3)). These additional charges are not relevant to the disposition of this appeal.

2 In October 2019, Avina pled guilty to the charges and admitted the…