People v. Zepeda-Onofre CA1/2

Filed 8/12/22 P. v. Zepeda-Onofre CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO THE PEOPLE, Plaintiff and Respondent, A162223 v. AUGUSTIN ZEPEDA-ONOFRE, (Sonoma County Super. Ct. No. SCR6095252) Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, A162241 v. (Sonoma County Super Ct. SIDONIO CRUZ-SANTOS, No. SCR6095251) Defendant and Appellant. On October 15, 2011, Gabino Santiago Lopez 1 and his roommate, Conrado Valentin Cruz, joined Ramon Lopez Velasco, Augustin Zepeda- Onofre, and Sidonio Cruz-Santos in a marijuana garden outside of Healdsburg, California to celebrate the end of the work week by eating, drinking beer, and snorting cocaine. Augustin and Sidonio were armed with We follow the parties’ convention of referring to the six people who 1 were present in the marijuana garden on the day of the murder by their first names. We mean no disrespect by this informality. 1 handguns. Several hours later, Gabino was dead from gunshot wounds inflicted by one of the men present at the celebration, using one or more firearms that were never recovered. Sidonio and Augustin (collectively, defendants) were charged with Gabino’s murder. Defendants’ trial took place in 2013. The trial court instructed the jury on three separate theories of murder: (1) that defendants were direct perpetrators of first degree or second degree murder; (2) that defendants directly aided and abetted the murder; and (3) that the murder was a natural and probable consequence of the defendants’ illegal cultivation of marijuana, assault with a firearm, or brandishing a firearm. The jury convicted defendants of second degree murder, cultivation of marijuana, and three counts of assault with a firearm. The jury found that the defendants were armed at the time of the murder, but rejected special allegations that the defendants intentionally discharged their firearms, or discharged their firearms in a manner causing great bodily injury or death (§§ 12022.53, subd. (c),(d)), suggesting that the jury did not believe that either defendant was the actual perpetrator. This court affirmed the defendants’ convictions. (People v. Cruz-Santos and Zepeda-Onofre (Nov. 18, 2015, A139860) [nonpub. opn.].) In 2019, defendants filed petitions for resentencing under former Penal Code2 section 1170.95.3 Section 1170.95 “was enacted as part of Senate Bill 2 All undesignated statutory references are to the Penal Code. 3 While the appeal was pending, the Legislature amended section 1170.95 twice. Effective January 1, 2022, section 1170.95 was amended to clarify the procedures the Legislature intended trial courts to follow when considering petitions for resentencing. (Sen. Bill No. 775 (2020–2021 Reg. Sess.).) The amended provisions apply retroactively to all appeals that were 2 No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under the theories of felony …

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