People v. Magana CA2/5

I. INTRODUCTION

Defendant Erick Alexander Magana appeals from an order denying his petition for resentencing pursuant to Penal Code1 section 1170.95. We affirm.

II. BACKGROUND

A. Factual Background

We recount the factual background as stated in defendant’s direct appeal (People v. Magana (Mar. 2, 2005, B127841) [nonpub. opn.]), supplemented by our 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. Their four children were also in the van. When stopped at a street light in front of Hollywood High School, Ms. Lopez saw four young men, including defendant, in a blue Camaro automobile stopped in front of them. The young men were speaking in loud voices to some young women seated on a bus bench. Ms. Lopez described the teenaged young men as saying ‘bad things’ to the women on the bus bench. Roland Ruiz, the victim, was standing on a grassy area behind the young women on the bus bench. Ms. Lopez testified, ‘[T]he driver come out and then the passenger, and then the other two followed them.’ The four young men got out of the Camaro and walked up to Mr. Ruiz, all the while gesturing with…