People v. Cortez CA2/5

I. INTRODUCTION

Defendant and appellant Juan Cortez appeals from the trial court’s denial of his petition to vacate his murder conviction pursuant to former section Penal Code section 1170.951 (now § 1172.6)2. Although the court found that defendant was eligible for relief under section 1172.6, rather than vacate defendant’s murder conviction, it redesignated his first degree murder conviction as one for second degree murder and resentenced him accordingly. We reverse and remand for resentencing.

II. BACKGROUND

A jury convicted defendant and codefendant Michael Castiblanco3 of first degree murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). At trial, the Los Angeles County District Attorney (District Attorney) argued to the jury that defendant was guilty as an aider and abettor or co- conspirator either under the felony murder rule or the natural and probable consequences doctrine. The jury found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and the allegation that a principal was

All further statutory references are to the…