People v. Alvarez CA2/6 ( 2022 )

Filed 1/19/22 P. v. Alvarez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B310892
(Super. Ct. No. TA076008)
Plaintiff and Respondent, (Los Angeles County)
v.
SALVADOR ALVAREZ,
Defendant and Appellant.
Salvador Alvarez (“appellant”) appeals from the trial
court’s order denying his petition for resentencing pursuant to
1
Penal Code section 1170.95 for his prior convictions of attempted
premeditated murder. The trial court denied his petition without
appointing counsel after concluding that persons convicted of
attempted murder are ineligible for relief under section 1170.95.
We reverse and remand with instructions.
1 All further statutory references are to the Penal Code.
In March 2005, a jury convicted appellant of two counts of
attempted premeditated murder (§§ 187, subd. (a), 664) and three
counts of shooting at an inhabited dwelling or vehicle (§ 246).
The jury found true the allegation that the offenses were
committed for the benefit of, or in association with, a criminal
street gang (§ 186.22, subd. (b)(1)), and further found true the
firearm enhancement allegations, specifically: a principal
personally and intentionally discharged a firearm (§ 12022.53,
subds. (c), (e)(1)), a principal was armed with a firearm (§12022,
subd. (a)(1)), and a principal was armed with an assault weapon
(§ 12022, subd. (a)(2)). (People v. Alvarez et al. (Aug. 16, 2006,
B182761) [nonpub. opn.] (Alvarez).) Appellant was sentenced to
life with the possibility of parole plus 20 years. On appeal, this
court affirmed but modified the judgement to stay the imposition
of the firearm enhancements pursuant to section 12022,
subdivision (a)(1). (Alvarez, supra, B182761, slip opn. at p. 4.)
In January 2021, appellant filed a petition for resentencing
pursuant to section 1170.95 on the basis that “Senate Bill [No.]
1437 extends to attempted murder.” (Capitalization and bold
omitted.) The trial court denied his petition because appellant
“was not convicted of murder.” During the pendency of this
appeal, the Governor approved Senate Bill No. 775 (2021-2022
Reg. Sess.) (SB 775). (Stats. 2021, ch. 551, § 2.) This legislation,
which took effect on January 1, 2022, amends section 1170.95 to
permit certain persons convicted of attempted murder to seek
relief.
We requested supplemental briefing to address SB 775’s
effect, if any, on appellant’s pending appeal. Both parties agreed
the matter should be remanded to permit the trial court to
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appoint counsel for appellant and conduct further proceedings
under the newly amended section 1170.95. We agree.
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437), which “amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder.”
(Stats. 2018, ch. 1015, § 1, subd. (f); §§ 188, 189; People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) Section 1170.95 was enacted
as part of SB 1437 “to provide a procedure for those convicted of
felony murder or murder under the natural and probable
consequences doctrine to seek relief.” (People v. Gentile (2020) 10
Cal.5th 830, 843; Lewis, at p. 959.)
On October 5, 2021, the Governor approved SB 775,
effective January 1, 2022. (Stats. 2021, ch. 551, § 2.) The new
legislation amends subdivision (a) of section 1170.95 to read, in
pertinent part: “[a] person convicted of . . . attempted murder
under the natural and probable consequences doctrine . . . may
file a petition with the court that sentenced the petitioner to have
the petitioner’s . . . attempted murder . . . conviction vacated and
to be resentenced on any remaining counts . . . .” (Stats. 2021, ch.
551, § 2.)
Respondent concedes that under the amended section
1170.95, “[a]ppellant may be able to establish a prima facie
showing of eligibility” because the record of conviction does not
necessarily preclude, as a matter of law, the possibility that
appellant was convicted of two counts of attempted murder based
on the natural and probable consequences doctrine. (See Lewis,
supra, 11 Cal.5th at pp. 970-972 [where the record of conviction
does not refute the claims of eligibility in the section 1170.95
petition, petitioner has made a prima facie showing for relief].)
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We express no opinion on whether the trial court should grant
relief.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed and remanded with instructions to appoint counsel for
appellant and to proceed consistent with the pertinent provisions
of section 1170.95.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Michael Shultz, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, 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, Idan Ivri and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.