Filed 7/14/22 P. v. Avila CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B312626 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA102440) v. JOSE ALBERTO AVILA, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Lee W. Tsao, Judge. Affirmed. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent. INTRODUCTION Jose Avila appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1170.95.1 He contends that the court applied the wrong standard of proof at the evidentiary hearing and that substantial evidence did not support the court’s finding Jose aided and abetted the murder of Manuel Pasqual. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. A Jury Convicts Jose of Murder and Assault with a Deadly Weapon; We Modify the Judgment and Affirm On September 1, 2007 Jose Avila drove to South Gate to drop off his younger brother, Jonathan Avila, at a party. As they approached their destination, Jose yelled out, “‘Compton Varrio Tortilla Flats, and this is our neighborhood.’” Jose stopped the car in the middle of the street near a group of six teenagers, Jonathan Sedano, Fernando Gutierrez, Fernando Hernandez, Miguel Lorenzana, Hernan Partida, and Manuel Pasqual, who were gathered around Pasqual’s car. Jonathan got out of the car and asked, “‘Where’s the party at?’” When Sedano responded, “Who are you,” Jonathan punched him. Jonathan and Sedano began to fight, and Gutierrez and Partida joined Sedano in hitting Jonathan, while Jose watched the fight from inside his car. During the fight Jonathan took out a curved knife with a five- to six-inch blade, swung it at Sedano, and stabbed him in the stomach. After he stabbed Sedano, Jonathan walked toward 1 Statutory references are to the Penal Code. 2 Hernandez while holding the knife, and Hernandez backed away. Jonathan turned around, approached some of the other teenagers, and swung the knife at them. Jose got out of the car, lifted his shirt to reveal his gang tattoos, and shouted his gang name. Jose approached Gutierrez and Hernandez, Hernandez kicked Jose in the face, and they began to fight. Cesar Cabrera, who had been standing on the street corner, approached the group and told Jose he should leave the teenagers alone. Jose yelled “get the heat” or “bring my heat,” and Jonathan broke free and ran toward Jose’s car. On his way …
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