Opinion
A166317
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LOUIS ALTES, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05000613364
MEMORANDUM OPINION
RODRIGUEZ, J.
Robert Louis Altes was charged with murder (Pen. Code, § 187) in 2006. In 2009, a jury convicted him of second degree murder and found he personally used and intentionally discharged a firearm, causing great bodily injury and death to a victim (§ 12022.53, subds. (b)-(d)). The trial court sentenced Altes to 15 years to life on the second degree murder count, and a consecutive sentence of 25 years to life on the firearm enhancement. This court affirmed the judgment. (People v. Altes (Dec. 7, 2021, A125038) [nonpub. opn.].)
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) Undesignated statutory references are to the Penal Code.
In March 2022, Altes petitioned for resentencing under section 1172.6,alleging the criminal complaint allowed the prosecution to proceed under the theories of felony murder or natural and probable consequences, that he was convicted pursuant to one of those theories, and that he could not presently be convicted of murder due to recent changes in the Penal Code. (Stats. 2018, ch. 1015, § 1, subd. (f) [amending "the felony murder rule and the natural and probable consequences doctrine, as it relates to murder"]; §§ 188, subd. (a)(3) [as amended, malice "shall not be imputed to a person based solely" on his participation in the crime]; 189, subd. (e) [as amended, liability for murder only if the individual was the actual killer, aided and abetted the actual killer, or was a major participant in the underlying felony and acted with reckless indifference to human life].)
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6, with no substantive changes in the statute. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference.
The trial court concluded Altes was not entitled to resentencing relief after determining he was convicted of second degree murder on the theory of either express or implied malice. The jury determined Altes personally and intentionally discharged a firearm causing the victim's death. There was no possibility Altes was convicted based on imputed malice, the court explained, since the jury was not provided any instructions on any nonassaultive felony that was inherently dangerous to life to support a second degree felony murder conviction. Nor were any natural and probable consequences doctrine instructions given regarding second degree murder liability.
Altes appealed. His appointed appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, raising no specific contentions but requesting we exercise our discretion to independently review the record for arguable issues. Altes submitted a supplemental letter brief. (See id. at pp. 226, 232.) We affirm the order denying resentencing.
Altes is not eligible for resentencing relief. The record establishes he was convicted of second degree murder based on a showing of malice. The jury found he personally and intentionally discharged a firearm, proximately causing the victim's death. (People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [defendant ineligible for resentencing where jury found he personally and intentionally used firearm to commit crime, an implicit finding he was the actual killer].) Moreover, the jury was not provided any instructions that would have permitted the jury to convict Altes of murder without finding he acted with malice. (Compare with People v. Offley (2020) 48 Cal.App.5th 588, 599 [although jury found true § 12022.53 allegation, court could not rule out possibility jury relied on the natural and probable consequences doctrine in convicting where jury was instructed on that doctrine as part of its instruction on conspiracy liability].) To the extent Altes argues section 1172.6 violates his right to due process and the court denied him his equal protection rights, he fails to furnish any" 'legal argument with citation of authorities on the points made.'" (People v. Stanley (1995) 10 Cal.4th 764, 793.) Accordingly, these arguments are forfeited. (Ibid.)
We also reject Altes's generalized argument that his counsel was ineffective for failing to raise issues both below and on appeal. Altes fails to establish he was prejudiced by any of counsels' allegedly deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Given the record, there is no reasonable probability that either counsel could have made any argument that would have resulted in a more favorable outcome. (People v. Rices (2017) 4 Cal.5th 49, 80.)
DISPOSITION
The order denying Altes's petition for resentencing is affirmed.
WE CONCUR: Tucher, P.J., Petrou, J.