Filed 3/30/22 P. v. Fiu CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, A160536 v. NEIL FIU, (Contra Costa County Super. Ct. No. 5-041756-8) Defendant and Appellant. A jury convicted Neil Fiu of, among other things, second degree murder (Pen. Code1, § 187) of Salvador Espinoza. After the enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.), Fiu filed a petition for relief under section 1170.95 alleging that his conviction was based upon the felony murder rule or the natural and probable consequences doctrine. Fiu contends that the trial court erred in denying his section 1170.95 petition. Finding no error, we affirm. All further statutory references are to the Penal Code 1 unless otherwise indicated. 1 BACKGROUND The Trial and Verdict2 On the evening of July 24, 2003, Fiu, an “old gangster” who was a member of the Sons of Death (SOD) street gang, was hanging out on the porch of his home, drinking with teenage SOD members Sammy V., Brandon V., Danny G., and Joey O. Fiu’s step-son, Juan, and Juan’s cousin, Luis Javier Cervantes, were also there. That evening, Espinoza walked by them, yelling disrespectfully. Joey O. and Cervantes testified that Espinoza yelled out “EHL” or “Easter Hill Locos,” his gang’s name. When Espinoza walked by, Sammy V. testified that Fiu said to “go get him.” Danny G. and Brandon V. started chasing Espinoza. They caught him and started punching and kicking him. Sammy V. said he went over and kicked Espinoza a couple of times on his lower body while Espinoza was on the ground. Sammy V. heard someone yell “SOD” while he was kicking Espinoza. He testified that Espinoza was kicked for about five to ten minutes, and Fiu kicked Espinoza multiple times in the head. Danny G. had a gun and pulled it out when he caught Espinoza, but someone, Sammy V. wasn’t sure who, told Danny G. to put it away. Sammy V. denied that Fiu knocked the gun out of Danny G.’s hands. Joey O. testified that he went to Fiu’s house on the night of July 24, 2003, with Danny G., Brandon V., and Sammy V. 2Fiu augmented the record on appeal with a full set of the reporter’s transcripts from his trial, but we recite and rely on only the evidence introduced in his section 1170.95 hearing. 2 Cervantes was also there. Joey O. said that Espinoza called out his gang name as he went by, everyone started walking towards Espinoza, and then Brandon V. picked Espinoza up and threw him on the ground. Danny G. said “SOD,” and pulled out a gun. Joey O. denied …
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