People v. Preciado CA2/4

INTRODUCTION

In 1999, appellant Arturo Preciado was convicted of first degree murder and sentenced to 26 years to life. In 2019, Preciado filed a petition for resentencing under Penal Code section 1170.95,1 which the superior court denied. The parties agree the superior court erred in summarily denying the petition without appointing counsel. The Attorney General argues the error was harmless, because the jury instructions from the trial make clear that Preciado was not convicted for felony murder or murder under a natural and probable consequences theory, and therefore he is ineligible for relief under section 1170.95. We agree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our previous opinion, People v. Preciado (May 1, 2000, B132281) [nonpub. opn.],2 stated the facts of the case as follows: “On March 10, 1997, appellant [Preciado] and four fellow members of the Street Villains gang, Jose Flores, Johnny Berumen, Victor Montenegro, and ‘K-Does,’ were standing outside K-Does’s house. At a house across the street, Guillermo Morales and his young daughter were outside on the porch. Believing Morales to be a member of a rival gang, the Moonlight Cats, appellant began talking to…