Filed 4/4/23 P. v. Damian CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G061208 v. (Super. Ct. No. C85522) MARCO ANTONIO DAMIAN, OPI NION Defendant and Appellant. Appeal from a postjudgment order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan Amann and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. In 2010, appellant was convicted of second degree murder for aiding and abetting the shooting death of Leo Huicochea. Following the enactment of Senate Bill No. 1437 in 2019, he petitioned to vacate his conviction and to be resentenced pursuant 1 to former Penal Code section 1170.95. After conducting an evidentiary hearing, the trial court found appellant was ineligible for resentencing because he directly aided and abetted the shooting with implied malice. Appellant contends there is insufficient evidence to support that finding, but we disagree and affirm the court’s denial order. FACTUAL AND PROCEDURAL BACKGROUND Appellant has been tried and convicted of murder four times for his participation in the events leading up to Huicochea’s death. His first three convictions were overturned due to evidentiary and/or charging error and are not germane to the present appeal. Therefore, our statement of facts is limited to the evidence adduced at his fourth trial in 2010, which is what the trial court relied on in ruling on his petition for resentencing. The evidence at that trial revealed Huicochea was fatally shot by Cesar Vasquez in La Habra on the night of February 12, 1991. At the time, Vasquez was a member of the Westside gang, and Huicochea was in an outfit called Ward Street, which was loosely associated with Westside’s rival, the Monos gang. About a week before the shooting, Monos members smashed the windows on Vasquez’s car. Although Huicochea was not involved in that vandalism incident, he suffered Vasquez’s deadly wrath because of it. On the evening of the 12th, Vasquez was driving around La Habra with his girlfriend Gabriella Maldonado and Emilia Ceniceros, who belonged to a female clique of Westside. Gabriella’s brother Eduardo and appellant, Ceniceros’ cousin, were also in the car. Appellant, whose nickname was “Psycho,” knew Vasquez was looking for 1 That section has since been renumbered without substantive change as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code. 2 trouble. In fact, according to Ceniceros, Vasquez had a sawed-off shotgun and openly 2 proclaimed he …
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