Opinion
G057314
06-10-2022
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JAVIER AGUILAR, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 17CF2394 David A. Hoffer, Judge. Affirmed in part, reversed in part, and remanded with directions.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
A jury convicted defendant Albert Javier Aguilar of attempted murder and assault with a firearm under a natural and probable consequences theory, robbery of a necklace, and unlawful firearm possession. The trial court imposed a sentence of 13 years and four months in prison. Aguilar filed this appeal, raising several claims.
In a prior opinion, this court affirmed in part, reversed in part, and remanded for resentencing. The Supreme Court granted review and later transferred the matter back to this court with directions to vacate our prior opinion and reconsider the cause due to Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775). We vacated the prior opinion and requested additional briefing.
Due to Senate Bill 775, the Attorney General concedes Aguilar's attempted murder conviction must be reversed. We agree. On remand, the prosecution may elect to retry Aguilar for attempted murder on a still valid legal theory. As to Aguilar's other claims, we again affirm in part, reverse in part, and remand for resentencing.
I
FACTS AND PROCEDURAL BACKGROUND
A. Villegas (not the man's full name) was drinking with a friend one night at a bar. Villegas became uncomfortable because he thought that a man in the bar-later identified as Aguilar-was looking at him. Soon after, Villegas was approached by another man who told him someone outside was breaking into his pickup truck.
Villegas went outside to the parking lot where he saw a man-later identified as Daniel Perez-sitting in the driver's seat of his truck. Villegas also noticed a rear window in the truck had been broken. Villegas got into the passenger side of the truck; Perez got out and went toward the back of the truck. Villegas then moved over to the driver's side.
Perez and Aguilar were originally charged together, but Perez's case was severed prior to trial and is not before us.
Before Villegas could start up his truck, Perez fired two gunshots, one striking the rear windshield and the other an adjacent cab panel. Villegas heard "thunder sounds" from the gun and felt "heat" behind his head. Villegas did not immediately realize the noise was from a gunshot. Villegas got out of the truck and saw Perez holding a revolver. Villegas saw the man who had been in the bar (Aguilar) standing near the front of his truck. Villegas had not seen Aguilar in the parking lot until after he got out of the truck. Aguilar was holding a semiautomatic handgun.
Aguilar approached Villegas and they began to fight. Villegas took Aguilar's gun from him and hit him in the head with it (Villegas could not remember what ultimately happened to Aguilar's gun). During the fight, Villegas was able to push Aguilar's head to the ground. During the fight, Perez came up from behind Villegas and began pistol-whipping him. Perez twisted Villegas's head, tried to choke him, and bit Villegas on the shoulder, leaving a bite mark. Despite Perez's efforts, Villegas "never stopped beating the other one [(Aguilar)] up."
The fight ended when someone yelled the police were coming. Villegas saw Perez and Aguilar get into a car and drive off together.
Police Investigation
Officer Jimmy Correal arrived on the scene and saw Villegas's truck with bullet holes in it. Correal saw Villegas sitting next to the truck, bleeding from a head wound. Villegas told Correal that two armed men, who left together in a silver Hyundai, had tried to take his truck. Villegas was taken to the hospital.
At the hospital, Villegas told Officer Correal that the man who had been in his truck (Perez) at some point approached him, demanded his wallet, bracelet, and a gold chain necklace, and had pulled the chain from his neck. Villegas told Detective Mike Judson that after the fight in the parking lot, the two men took his necklace. Villegas said the men also tried to take his wallet and bracelet, but he did not let them.
Police collected DNA evidence from the parking lot, which was eventually linked to Aguilar. Police showed Villegas a photographic lineup, and Villegas identified Aguilar as the person he had fought with.
Trial Court Proceedings
Villegas' friend who was with him at the bar-J. Salgado-testified at the jury trial. Salgado said that at some point, Villegas went outside. About 10 to 15 minutes later, Salgado also went outside. As Salgado came out of the bar, he saw a man shooting at Villegas, who was sitting in the driver's seat of his truck. Salgado also saw another man nearby matching Aguilar's description. After the shots were fired, Salgado went back in the bar, and then heard two more gunshots. Salgado was shown some photos, but he was not able to identify anyone.
During the trial, Villegas' testimony included a few inconsistencies. Villegas admitted he was unable to recall many details. Villegas is a drug user with several prior convictions. Villegas was testifying under a grant of immunity. Villegas testified he did not recall his necklace being stolen. Villegas agreed he lost it, but he could not recall when, and he could not remember anyone taking it from him. Villegas testified it was only when he was discharged from the hospital, and later collected his belongings, that he realized he was missing his gold chain necklace.
The jury found Aguilar guilty of attempted murder and assault with a firearm (under a natural and probable consequences theory). The jury also found Aguilar guilty of robbery (the gold chain necklace), and illegal possession of a firearm by a felon.
The court denied a motion by Aguilar for a new trial and imposed a total aggregate sentence of 13 years and four months in state prison.
II
DISCUSSION
Aguilar contends: A) there was insufficient evidence to support his convictions for attempted murder, assault with a firearm, and robbery; B) instructional error; C) prosecutorial misconduct; D) the court improperly denied his motion for new trial; and E) his attempted murder conviction must be reversed due to Senate Bill 775.
We shall address each contention in turn.
A. Sufficiency of the Evidence
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one." (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We "evaluate the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Ramos (2016) 244 Cal.App.4th 99, 104.)
Aguilar contends there is insufficient evidence to support the attempted murder, assault with a firearm, and robbery charges. We disagree on (1) the attempted murder and assault with a firearm charges; we agree on (2) the robbery charge.
The attempted murder charge is reversed due to Senate Bill 775, but we still analyze the sufficiency of evidence claim because a reversal on that ground would have forestalled a retrial on that charge. (See People v. Eroshevich (2014) 60 Cal.4th 583, 591-592.)
1. Attempted Murder and Assault with a Firearm
"All persons concerned in the commission of a crime" are criminally liable, regardless of whether they directly commit the crime or aid and abet. (Pen. Code, § 31.)One who "aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) "[A]n aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime [a direct aider and abettor]. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.'" (Id. at p. 1117.)
Further undesignated statutory references are to the Penal Code.
The prosecution's theory regarding Aguilar's liability for the attempted murder and assault with a firearm was that those offenses were a natural and probable consequence of Perez's breaking into Villegas's truck and attempting to steal either the truck or its contents. Aguilar aided and abetted Perez in committing the target offense of attempted larceny by acting as a lookout inside the bar, by being armed with a firearm, and by fighting with Villegas in the parking lot. Thus, we find substantial evidence to support Aguilar's convictions for the nontarget offenses of attempted murder and assault with a firearm under the natural and probable consequences theory.
Aguilar argues the attempted larceny was "complete prior to any joint activity between [him] and Perez." (Capitalization & boldfacing omitted.) And because an aider and abettor's intent must be formed prior to or during commission of the target offense, Aguilar contends he did not aid and abet the attempted larceny. (See People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039 [distinguishing aider and abettors from accomplices after the fact].)
We disagree. Villegas did not notice Aguilar in the parking lot until after the shots were fired and after Villegas got out of the truck. But Villegas's friend Salgado testified when he came out of the bar and saw the first man (Perez) shoot at Villegas in the truck, the second man (Aguilar) was also outside standing near the truck.
More importantly, there was evidence of "joint activity" between Aguilar and Perez before the parking lot encounter. Villegas testified he became uncomfortable because Aguilar was watching him inside the bar. Then after Villegas went outside Aguilar followed him. In short, it is reasonable to infer Aguilar was acting as a lookout for Perez. "[A] lookout necessarily encourages and facilitates the commission of the offense. 'Such conduct is a textbook example of aiding and abetting.'" (In re Gary F. (2014) 226 Cal.App.4th 1076, 1081.)
Aguilar argues there was no testimony he and Perez came to the bar together, and therefore there was no evidence they were acting in concert. But Aguilar and Perez left together. So, it is reasonable to infer that the two men were in cahoots from the outset because they fled the scene together in the same car. Moreover, when Villegas appeared to be getting the best of Aguilar in the fight, Perez came to Aguilar's aid. In other words, as Villegas stated to the police, "two guys" tried to take his truck.
Aguilar also argues that Perez's shooting at Villegas was not reasonably foreseeable because "attempted larceny is not an inherently violent offense." Aguilar further argues there was "insufficient evidence that [he] could have reasonably foreseen Perez's decision to shoot at Villegas."
However, the "'question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, [the nontarget crime] was reasonably foreseeable.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 901.) This "is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
Here, the question the jury had to resolve was whether, from an objective standpoint, an attempted murder and an assault with a firearm were a reasonably foreseeable consequence of Perez's and Aguilar's attempted theft. Considering that Perez and Aguilar were both armed with handguns prior to the attempted theft, there was sufficient evidence to allow the jury to resolve that question affirmatively.
In sum, we find Aguilar's convictions for attempted murder and assault with a firearm against Villegas are supported by substantial evidence.
2. Robbery
Aguilar contends there was insufficient evidence to convict him of the robbery of Villegas's gold chain necklace. We agree.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) To prove Aguilar guilty of robbery, the prosecution had to show: a) he aided and abetted Perez in the taking of Villegas' necklace, or b) he was a direct perpetrator of the crime. (See People v. Majors (1998) 18 Cal.4th 385, 408 ["the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator"].)
The prosecution's theory of Aguilar's liability for the robbery was not based on the natural and probable consequences doctrine.
Here, neither option is supported by substantial evidence.
Villegas told Officer Correal the man who had been in his truck-Perez- demanded his money and his gold chain. Perez then ripped the gold chain from Villegas's neck and chased him around the parking lot before the fight. Alternatively, Villegas told Detective Judson that it was after the fight that "they" took his gold chain. "They" also tried to take his wallet and bracelet, but he did not let them. Judson could not recall whether Villegas said Perez had taken the gold chain necklace or whether it was "both of them." Villegas did not provide Judson with any other details about Aguilar's involvement.
When testifying, Villegas did not recall making any statements regarding a theft of his necklace. Villegas said he lost the gold chain, but he could not recall when, and he could not remember anyone taking it from him. Villegas testified it was only when he was later discharged from the hospital and collected his belongings that he realized he had "lost a gold chain," but Villegas did not know what had happened to it.
Villegas suggested in his testimony that the necklace may have been taken "when I was laying on the ground. I was laying for a while unconscious on the ground." Villegas based this on the fact that when he arrived at the hospital, he had his bracelet and his wallet, but not the necklace. However, Villegas earlier testified he did not realize his necklace was missing until he was discharged from the hospital. Villegas also could not recall telling anyone he was ever unconscious. And if he was, Villegas did not describe when that may have occurred.
Arguably, there is evidence of at least three possibilities involving the purported theft of the necklace: (1) a robbery did not actually happen (or at least Villegas could not remember it happening, possibly because he was unconscious); (2) Perez demanded and took the necklace before the fight broke out; or (3) the necklace was taken by Perez and/or Aguilar after the fight. However, not only are these scenarios inconsistent with each other, but they are also inconsistent with the other evidence.
Villegas opined on the witness stand that he may have been unconscious while he was robbed, but this possibility is inconsistent with the timeline of the other events. In fact, the only time Villegas reasonably could have been rendered unconscious is after Perez and Aguilar fled the scene and before the police arrived. Thus, the evidence of whether a robbery even occurred-let alone when-is equivocal at best.
The taking of the necklace likely did not happen before the fight, as Villegas told Officer Correal, because Villegas testified that when he got out of the truck, Perez ran away. Villegas then said that he confronted Aguilar and those two began to fight. Similarly, the taking of the necklace likely did not happen after the fight, as he told Detective Judson, because Villegas agreed the entire melee stopped when someone yelled the police were coming. And at this point, Villegas said Perez and Aguilar promptly went to their car and fled.
More importantly, there is scant evidence of any actual involvement by Aguilar in the purported robbery of the necklace. In other words, there is no evidence or reasonable inference that Aguilar was the direct perpetrator of the robbery, or that Aguilar "by act or advice aided, promoted, encouraged or instigated the commission of the" robbery. (People v. Prettyman (1996) 14 Cal.4th 248, 262.)
Candidly, this is a substantial evidence review, which is a very low threshold. Even so, "substantial evidence does not mean any evidence, no matter how slight." (People v. Baker (2012) 204 Cal.App.4th 1234, 1247.) Rather, substantial evidence means "evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149.)
Viewed in light of the entire record, we do not find solid, probative, and/or credible evidence to support Aguilar's robbery conviction. Thus, we reverse.
B. Instructional Error
Aguilar contends the trial court gave an incorrect unanimity instruction as to the robbery count. As a result, he argues his robbery conviction must be reversed. But because we have reversed Aguilar's robbery conviction based on insufficient evidence, we need not analyze this instructional error claim.
C. Prosecutorial Misconduct
Aguilar contends the prosecutor committed misconduct during closing argument by vouching for Villegas and by misstating the evidence. We disagree.
A claim of prosecutorial misconduct is reviewed for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) "'An abuse of discretion will be "established by 'a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'"'" (People v. Johnson (2022) 12 Cal.5th 544, 605-606.)
"To preserve [a prosecutorial misconduct] claim for appeal, 'a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety.'" (People v. Clark (2011) 52 Cal.4th 856, 960.)
Here, Aguilar did not object to all of the prosecutor's closing arguments he now challenges on appeal, so those contentions have been forfeited. We will only address those closing arguments to which Aguilar did object.
In this part of the discussion, we will: 1) state general principles of law; 2) summarize the relevant portions of the record; and 3) apply the law to the facts.
1. General Principles of Law
"Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party's interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit . . . ." (People v. Huggins (2006) 38 Cal.4th 175, 207.) "'"'[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.""" (People v. Hill (1998) 17 Cal.4th 800, 819-820.)
"As a general matter, '[i]mpermissible "vouching" may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony.' [Citation.] . . . [Citation.] 'Similarly, it is misconduct "to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness." [Citation.] The vice of such remarks is that they "may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government's view of the evidence."'" (People v. Seumanu (2015) 61 Cal.4th 1293, 1329-1330.)
During closing argument, "'"so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [his] comments cannot be characterized as improper vouching."'" (People v. Seumanu, supra, 61 Cal.4th at p. 1330.) Similarly, "[a] prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them . . . ." (People v. Martinez (2010) 47 Cal.4th 911, 958.)
"It is well settled that it is misconduct for a prosecutor to base argument on facts not in evidence." (People v. Mendoza (2016) 62 Cal.4th 856, 906-907.)
2. The Relevant Portions of the Prosecutor's Closing Argument
The prosecutor argued Villegas "didn't make the story up . . . . To begin with, you as jurors with your own life experience saw Mr. Villegas sitting on the witness stand. You saw his demeanor. You saw him listening to the questions that he was asked. And you saw . . . the way that he answered the questions. . . . [¶] You also know that he didn't make the story up because he couldn't have."
Aguilar's counsel objected on grounds of "vouching." The trial court withheld "ruling on the objection at this point and see if counsel returns to the evidence."
The prosecutor went on to argue: "Mr. Villegas had been in a fight. He was bleeding all over the place. He'd been hit hard in the head. . . . In the time it took the police to arrive, we know that Mr. Villegas dragged himself over to his truck. He didn't know there were bullets on the ground. He didn't know --"
Aguilar's counsel objected, stating, "No such evidence, your Honor." The trial court overruled, finding the prosecutor was referring to the evidence.
The prosecutor argued Villegas "could not possibly have known the defendant's DNA was on one of the rounds that was on the ground. There was no way for him to know these things, and yet months later he identified without hesitating the defendant in a photo lineup." The prosecutor argued Villegas "was beaten, and yet in the moments before the police arrived, he provided an account that explained everything. A person could not make that up. He couldn't."
Aguilar's counsel objected on the grounds of vouching and misstating the evidence, the trial court overruled the objections.
3. Application and Analysis
As far as Aguilar's vouching objections, the prosecutor appeared to be arguing Villegas' testimony was believable because it was generally consistent with the other evidence presented at trial. The prosecutor further commented on Villegas's demeanor on the witness stand, generally arguing that this was something the jury should consider in evaluating his testimony. Overall, we find the prosecutor's challenged arguments to be proper comments on the evidence (and reasonable inferences flowing from such evidence). Thus, we do not find that the trial court abused its discretion when it overruled Aguilar's objections on the grounds of vouching.
Aguilar argues the prosecutor's use of the phrase "we all know" suggested the prosecutor was relying on information outside the record and therefore constituted vouching. We disagree. We think the jury (and the trial court) likely understood the prosecutor's use of the phrase "we all know" as referring to the evidence the prosecution presented during the trial and the reasonable inferences to be drawn from it.
Aguilar also contends the prosecutor improperly argued that Aguilar and Perez came in the same car. The prosecutor said they: "left in the same car. It's a reasonable conclusion to reach that they came in the same car." But again, the prosecutor appeared to be making a reasonable inference based on the evidence. The reasonableness of that inference was a question for the jury, and we find no "vouching" by the prosecutor that interfered with the jury's analysis of that question.
To reiterate and conclude, we find that the prosecutor's arguments did not constitute misconduct. Thus, we find the trial court did not abuse its discretion.
D. The New Trial Motion
Aguilar argues the trial court abused its discretion when it denied his motion for new trial because there was insufficient evidence to support the attempted murder, assault with a firearm, and robbery convictions. We disagree.
In considering a motion for new trial, the trial court does not review the jury's determination, but independently reweighs the evidence. (People v. Fuiava (2012) 53 Cal.4th 622, 729-730.) The court is "'guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.'" (Ibid.) The court "'"should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict."'" (Ibid.)
Here, the court stated that after "reweighing the evidence, I don't reach a different conclusion than the jury did." Because this court has found substantial evidence to support Aguilar's convictions for attempted murder and assault with a firearm, we find the trial court did not abuse its discretion by independently reweighing the evidence and denying the new trial motion. And as far as the robbery conviction, the issue is moot due to our reversal of that charge as previously discussed.
E. Senate Bill 775
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) "Through the passage of Senate Bill 1437 the Legislature effectively eliminated the natural and probable consequences doctrine as it relates to murder convictions, and reduced the scope of the felony-murder rule." (People v. Prado (2020) 49 Cal.App.5th 480, 487.)
As part of Sente Bill 1437, the Legislature also enacted section 1170.95, which provides a procedure for a person convicted of murder under a no longer valid legal theory to file a petition for relief. If the court determines the petitioner has made the required prima facie showing, the court must issue an OSC. (§ 1170.95, subd. (c).) If the parties do not stipulate the petitioner is entitled to relief, the court must hold an evidentiary hearing. If the prosecution fails to prove petitioner's ineligibility for relief beyond a reasonable doubt, the court must vacate petitioner's invalid conviction and resentence the petitioner accordingly. (§ 1170.95, subd. (d)(3).)
Effective January 1, 2022, the Legislature enacted Senate Bill 775, which expanded the scope of Senate Bill 1437 to include defendants who were convicted of attempted murder. (See § 1170.95, subd. (a).) Section 1170.95 now provides that persons convicted of attempted murder under the natural and probable consequences doctrine "may challenge on direct appeal the validity of that conviction based on the changes" ushered in by Senate Bill 1437. (§ 1170.95, subd. (g).)
Here, the prosecution's sole theory of guilt as to the attempted murder conviction was that Aguilar directly aided and abetted Perez's attempted larceny of the truck and/or its contents and the shooting of Villegas was a natural and probable consequence of that target crime. As the Attorney General concedes, Aguilar is entitled to a reversal of his attempted murder conviction.
However, because the reversal of the attempted murder conviction is based on a subsequent change in the law, and the matter is still on direct appeal, the prosecution may elect to retry Aguilar for attempted murder, so long as it can-in good faith-still advance a valid legal theory to support that charge. (See People v. Hola (2022) 77 Cal.App.5th 362, 376-377 ["when there is a change in the law during an appeal that invalidates a previously valid legal theory relied upon by prosecution and reversal is thereby warranted, a new trial should be permitted on legally valid theories"].)
Aguilar argues he cannot be retried for the attempted murder conviction; rather, the trial court must simply resentence him for attempted larceny under section 1170.95, subdivision (e). The statute provides: "The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section . . . ." (§ 1170.95, subd. (e).)
But section 1170.95, subdivision (e), only becomes operative when a petitioner files a petition. Aguilar did not file a section 1170.95 petition. Aguilar's case is still on direct appeal from the underlying judgment. Thus, the proper remedy is to reverse Aguilar's attempted murder conviction and remand the matter for further proceedings, including a possible retrial on the reversed charge, if the prosecution so elects. (See People v. Chiu (2014) 59 Cal.4th 155, 168.)
III
DISPOSITION
Aguilar's attempted murder and robbery convictions are reversed. The matter is remanded for resentencing, and any further proceedings as necessary, consistent with the holding of this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., SANCHEZ, J.