People v. Magana CA2/5

I. INTRODUCTION

In 1998, a jury convicted defendant Erick Magana of second degree murder (Pen. Code, § 1871) and found true the allegation that a principal was armed with a handgun during the commission of the murder (§ 12022, subd. (a)(1)). Defendant’s conviction was affirmed on appeal. (People v. Magana (Mar. 2, 2005, B127841) [nonpub. opn.] (Magana I).) In 2019, defendant filed a petition for resentencing pursuant to section 1170.95 (now section 1172.6—further references will be to section 1172.6). The trial court denied the petition and a prior panel of this division affirmed the court’s order. (People v. Magana (Aug. 18, 2021, B303377) [nonpub. opn.] (Magana II).) In 2022, defendant filed a second petition for resentencing pursuant to section 1172.6. The court again denied the petition. Defendant appeals and we affirm.

II. BACKGROUND

A. Factual Background

The following factual background is taken from the opinion in Magana II which was based on the factual background as stated in Magana I supplemented by the panel’s review of the trial record: “‘Connie Lopez had been riding with her ex-husband in his van at approximately 3:30 or 3:45 p.m. on September 7, 1994.…