People v. Herrera CA5

BACKGROUND

I. The shooting2

At a party in Merced, members of two Merced subsets of the Norteño criminal street gang exchanged gang taunts with members of the West Coast Outlaws, an Atwater criminal street gang. Afterward, defendant and Robby Lee Maule—both Norteños— confronted members of the West Coast Outlaws in a garage off a nearby alley. Maule fired two gunshots into the garage while defendant stood behind him. Korey Suttles, a member of the West Coast Outlaws, died of a gunshot wound.

Subsequent statutory citations refer to the Penal Code. We derive the facts of the incident from our nonpublished opinion in the direct appeal. (See People v. Maule et al. (May 10, 2010, F057094, F057096), as modified on denial of rehearing on June 4, 2010, [nonpub. opn.].)

2.

II. The petition

On January 8, 2019, defendant filed a petition requesting resentencing pursuant to section 1170.95. He marked the following checkboxes:

“1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

“2a. At trial, I was convicted of 1st or 2nd…