People v. Luna CA5

INTRODUCTION

In 2006, a jury convicted petitioner Rafael Antonio Luna of the first degree murder of Marcos V. 1 (Pen. Code,2 § 187, subd. (a), count 1) with the special circumstance petitioner intentionally killed Marcos while an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). 3 For this offense and the associated enhancements, the trial court sentenced petitioner to a term of life without the possibility of parole plus a term of 15 years to life. (People v. Luna (Mar. 16, 2007, F050272) [nonpub. opn.] (Luna).) In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner aided and abetted in the murder with an intent to kill. On appeal, petitioner contends the trial court improperly applied a substantial evidence test and engaged in improper factfinding to deny the petition. Petitioner further contends the error was not harmless because the record of conviction suggests he may have been found guilty of first degree murder and conspiracy to commit murder based on imputed malice and imputed premeditation, and the gang special circumstance may have been found true without a…