Schell

Filed 10/20/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B313694 (Super. Ct. No. CR47771) Plaintiff and Respondent, (Ventura County)

v.

TERRY PAUL SCHELL,

Defendant and Appellant.

Terry Paul Schell joined in an “eight against one” gang assault resulting in the victim’s death. While his cohorts used a baseball bat, a shovel, and a knife, appellant pummeled the victim with his fists and feet. The trial court found that this participation in the gang assault resulting in death is an implied malice murder. We agree. Appellant unsuccessfully appeals the trial court’s order denying his petition for resentencing on his 2001 second degree murder conviction pursuant to Penal Code section 1172.6 (former § 1170.95). 1 Following an evidentiary hearing, the trial court

All statutory references are to the Penal Code. found, beyond a reasonable doubt, that there was substantial evidence to support a finding of second degree implied malice murder. Appellant contends among other things that the evidence is insufficient to support that…