Opinion
G058729
04-19-2022
THE PEOPLE, Plaintiff and Respondent, v. JOE JULIO ALCAREZ, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Daniel Rogers, Assistant Attorneys General, Charles C. Ragland, Lynne G. McGinnis and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 97CF0037 Kimberly Menninger, Judge. Reversed and remanded.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Daniel Rogers, Assistant Attorneys General, Charles C. Ragland, Lynne G. McGinnis and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. 1
OPINION
GOETHALS, J.
In 1997, a jury convicted appellant Joe Julio Alcarez of attempted murder after receiving instructions that included the natural and probable consequences doctrine. In 2019, Alcarez filed a petition for resentencing under Penal Code section 1170.95, a statute enacted by Senate Bill No. 1437 (Sen. Bill 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).)
All further undesignated references are to the Penal Code.
The trial court denied Alcarez's petition without appointing counsel since Alcarez was convicted of attempted murder rather than murder. Section 1170.95, as originally formulated, did not apply to attempted murder. We affirmed; the California Supreme Court granted review but deferred further action. The high court then issued People v. Lewis (2021) 11 Cal.5th 952 (Lewis) which focused on the procedural aspects of section 1170.95. In response the Legislature amended the statute through Senate Bill No. 775 (Sen. Bill 775); the amendment codified Lewis's holdings and extended resentencing benefits to persons convicted of "attempted murder under the natural and probable consequences doctrine." (Stats. 2021, ch. 551, § 2.)
The California Supreme Court then ordered this court to reconsider our decision in this matter given Sen. Bill 775's passage. The parties agree the trial court's denial of Alcarez's petition should be reversed and remanded for further proceedings in light of Lewis and newly amended section 1170.95. We agree. 2
FACTUAL AND PROCEDURAL HISTORY
We summarized the facts underlying this case in our earlier opinion on Alcarez's direct appeal of his convictions. (People v. Alcarez (Mar. 3, 1999, G022586) [nonpub. opn.].) Near midnight on New Year's Eve 1996, Alcarez introduced a man to two individuals to set up a drug sale. One of the individuals assaulted the man and, during the ensuing altercation, Alcarez kicked the man before the second individual shot the man multiple times.
In 1997, after receiving instructions related to the natural and probable consequences doctrine, a jury convicted Alcarez of attempted murder, assault with a firearm, and sale or transportation of marijuana. (§§ 664, 187; 245, subd. (a)(2); Health & Saf Code, § 11360, subd. (a).) After finding sentencing enhancement allegations for multiple prior serious or violent felonies true, the trial court sentenced Alcarez to 35 years to life in prison. We affirmed the judgment.
In 2019, after the passage of Sen. Bill 1437, Alcarez filed his section 1170.95 petition which is the subject of this appeal. In that petition, he declared, in pertinent part, as follows: "[an] information . . . was filed against me that allowed the prosecution to proceed under a theory of . . . the natural and probable consequences doctrine[;] [¶] [a]t trial, I was convicted of . . . attempted] murder pursuant to . . . the natural and probable consequences doctrine[;] [¶] [¶] [and] I could not now be convicted of . . . attempted] murder because of changes made to Penal Code §§ 188 and 189." Alcarez's petition also requested the court to appoint him counsel.
The trial court summarily denied the petition, without appointing counsel, finding Alcarez had "not set forth a prima fac[ie] case for relief." The court explained its ruling: "A review of court records indicates defendant [Alcarez] is not eligible for relief under the statute because the defendant does not stand convicted of murder."
We applied a plain language reading of section 1170.95, as it existed at the time, to affirm the summary denial, concluding the statute did not apply to attempted 3 murder convictions. (People v. Alcarez (Nov. 24, 2020, G058729) [nonpub. opn.].) The California Supreme Court granted Alcarez's petition for review, but deferred further action pending its disposition of People v. Lopez (Lopez), S258175, Supreme Ct. Mins., Nov. 13, 2019 (to decide issues about attempted murder liability, including whether Sen. Bill 1437 covered attempted murder convictions).
Before the Supreme Court heard oral arguments on Lopez, Sen. Bill 775 was enacted by the Legislature and signed into law by the Governor in October 2021 (2020-2021 Reg. Sess.); Sen. Bill 775 amended section 1170.95. The bill explicitly extended resentencing benefits to persons convicted of "attempted murder under the natural and probable consequences doctrine" (Stats. 2021, ch. 551, § 2) and codified "the holdings of [Lewis] regarding petitioners' right to counsel and the standard for determining the existence of a prima facie case" (id., § 1, subd. (b)) for resentencing and to explicitly apply to convictions for "attempted murder . . . under . . . the natural and probable consequences doctrine" (id., § 1, subd. (a)). The high court then transferred the matter back to this court with instructions to vacate our 2020 opinion and reconsider the matter in light of Sen. Bill 775's passage. The parties have filed supplemental briefing agreeing this matter should be reversed and remanded to the trial court for further proceedings controlled by newly amended section 1170.95.
DISCUSSION
We review de novo the application of newly amended section 1170.95 to undisputed facts about the trial court's summary denial of Alcarez's resentencing petition. (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163.) The statute now specifies that a "person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition . . . when all of the following conditions apply: [¶] (1) [an] information . . . was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . attempted murder under the natural and 4 probable consequences doctrine[;] [¶] (2) The petitioner was convicted of . . . attempted murder . . . following a trial[;] [¶] [and] (3) The petitioner could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189." (§ 1170.95, subd. (a).) The petition should also include the case number, date of conviction, and state whether the petitioner requests appointment of counsel. (Id., subd. (b)(1)(B), (C).)
The California Supreme Court ruled in Lewis that "upon the filing of a facially sufficient [section 1170.95] petition"-i.e., one that complies with the requirements just noted-the trial court must appoint counsel if requested. (Lewis, supra, 11 Cal.5th at pp. 957, 960, 970.) Not appointing requested counsel for a facially sufficient petition is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at p. 973.) After counsel is given an "opportunity to submit [timely] briefing[ ]," the court should then decide if a prima facie showing of entitlement to resentencing benefits has been made. (§ 1170.95, subd. (c).)
Unless "'the record, including the court's own documents, "contains] facts refuting the allegations made in the petition, "'" if the "'"petitioner's factual allegations [taken] as true"'" show entitlement to resentencing benefits (Lewis, supra, 11 Cal.5th at p. 971), the court must issue an order to show cause (OSC) (§ 1170.95, subd. (c)) and "hold a hearing to determine whether to vacate the . . . attempted murder . . . conviction and to recall the sentence and resentence the petitioner . . . ." (id., subd. (d)(1)(2)). At the hearing, the burden shifts to the prosecutor to "prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189." (Id., subd. (d)(3); see People v. Pacheco (2022) 76 Cal.App.5th 118, 124, 128, fn. 3; see also § 1170.95, subd. (d)(2) [certain prior findings by court or jury can mandate resentencing].) 5
Section 1170.95's plain language, as amended and retroactively applied to the undisputed facts of this appeal, shows Alcarez's resentencing petition is not subject to summary denial. Alcarez has filed a facially sufficient petition; he is entitled to appointed counsel. (See People v. Daniel (2020) 57 Cal.App.5th 666, 676-677 [the record of conviction for determining a prima facie showing may include the jury instructions under which the petitioner was convicted].) The trial court is required to issue an OSC and conduct an evidentiary hearing in accordance with Lewis and newly amended section 1170.95.
We agree with the parties that Sen. Bill 775's amendments apply to this appeal. (See People v. Vieira (2005) 35 Cal.4th 264, 305.)
DISPOSITION
Our prior opinion in this matter is vacated and superseded by this opinion. The trial court's order denying the section 1170.95 petition is reversed and the matter is remanded for further proceedings. On remand, the court is directed to appoint counsel for Alcarez, issue an OSC, and conduct further proceedings consistent with this opinion.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J. 6