Opinion
B330069
04-29-2024
THswE PEOPLE, Plaintiff and Respondent, v. ALBERT ALEXANDER CHAVEZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA117603 Joseph R. Porras, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
BAKER, Acting P. J.
A jury convicted defendant and appellant Albert Chavez (defendant) of nine counts of robbery and two counts of attempted murder as a result robberies he committed, with others, in 2009 at two locations. The evidence at defendant's trial established he shot two people during one of the robberies. The jury also convicted defendant on one count of being a felon in possession of a firearm and found true various enhancements, including allegations that a principal discharged a firearm causing great bodily injury during one of the robberies.
In an unpublished decision on direct appeal, this Court affirmed defendant's conviction but remanded for resentencing. (People v. Chavez et al. (May 18, 2016, B259908) [nonpub. opn.].) On remand, defendant was sentenced to five consecutive indeterminate terms of 25 years to life in prison plus a determinate term of 57 years and 8 months.
Years later, defendant filed a petition for resentencing pursuant to Penal Code section 1172.6 (former Penal Code section 1170.95). The trial court appointed counsel for defendant and held a hearing to consider whether he presented a prima facie case for relief. The court found he had not, explaining the record established defendant was the actual attempted murderer and the jury was instructed on the natural and probable consequences doctrine only as to a co-defendant-not as to defendant.
Undesignated statutory references that follow are to the Penal Code.
Defendant noticed an appeal from the denial of his section 1172.6 petition, and this court appointed counsel to represent him. After examining the record, defendant's attorney found no arguable issues to raise and filed an opening brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. This court then invited defendant to submit a supplemental brief. He accepted the invitation and argues (1) this court should review the record for the existence of arguable issues; (2) he presented a prima facie case for relief because his jury was instructed on the natural and probable consequences doctrine; and (3) the People are in possession of DNA evidence that was never disclosed to the defense at trial and that would purportedly identify the true perpetrator of the crimes for which defendant was convicted.
Although we have discretion to undertake an independent review of the entire record, we decline to do so and limit our review to the other issues raised in defendant's supplemental brief. (Delgadillo, supra, 14 Cal.5th at 232 [where the defendant's attorney finds no arguable issues in an appeal from the denial of a section 1172.6 petition and the defendant files a supplemental brief, "the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion," but it is "wholly within the court's discretion" whether to conduct an independent review of the entire record].) Defendant's argument regarding the People's possession of allegedly exculpatory DNA evidence is not cognizable in this appeal because it does not bear on whether defendant could "presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6(a)(3); People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error"].) Defendant's argument that the trial jury was instructed he could be found guilty based on the natural and probable consequences doctrine is factually incorrect. The trial jury was read a natural and probable consequences instruction, but that instruction was expressly limited to a co-defendant and did not apply to defendant. We will not presume the jury misunderstood or failed to follow the instruction's limitation. (See, e.g., People v. Buenrostro (2018) 6 Cal.5th 367, 431 [courts presume "jurors understand and follow the instructions they are given"].)
DISPOSITION
The order denying defendant's section 1172.6 petition is affirmed.
We concur: MOOR, J., LEE, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.