Opinion
H050522
12-12-2023
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS150987A)
ADAMS, J. [*]
In 2016, a jury found Pedro Alvarez guilty of several crimes including premeditated attempted murder. The trial court sentenced Alvarez to 52 years to life in prison, and this court affirmed Alvarez's conviction on direct appeal. (People v. Alvarez (Mar. 1, 2018, H043801) [nonpub. opn.].) Alvarez subsequently filed a petition for resentencing pursuant to Penal Code section 1172.6. The trial court denied the petition after appointing counsel but without conducting an evidentiary hearing.
Alvarez filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we refer simply to section 1172.6 throughout the discussion section. Statutory references are to the Penal Code, unless otherwise stated.
In this appeal, Alvarez challenges the order denying his resentencing petition. He argues the trial court erred by relying on the factual summary from this court's opinion in his direct appeal as the sole basis for its decision.
We decide that Alvarez is ineligible for resentencing as a matter of law and therefore affirm the trial court's order.
I. Factual and Procedural Background
A. Factual Summary from Alvarez's Direct Appeal
We granted the Attorney General's request to take judicial notice of the record from Alvarez's direct appeal, and the factual summary we provide comes directly from our opinion in that case. However, our resolution of this matter does not require an analysis of the evidence from Alvarez's trial.
The charges in the underlying case arose out of three incidents from 2014 and 2015 when Alvarez was an inmate at Salinas Valley State Prison. The first incident occurred on April 23, 2014. A correctional officer observed Alvarez and another inmate named Perez punch a third inmate while all three were in the yard. Perez was armed with an inmate-manufactured weapon and used the weapon to stab the victim. The officer did not see Alvarez with a weapon, but two weapons were found in the area of the attack.
The second incident occurred on November 3, 2015. While conducting a security check of the cell that Alvarez shared with another inmate named Santana, a correctional officer observed Alvarez "in a straddle position on top of Santana." Alvarez was choking Santana, who was lying in a pool of blood and had blood coming out of a wound on his neck. The officer noted that Alvarez had blood on his clothes and hands and "looked . . . like he was tired, like normally, what you would see when someone was in a fight." Santana was gasping for air and had two or three puncture wounds on the side of his stomach and two on his neck. A medical report indicated that Santana's neck puncture was deep and nearly hit the carotid artery, which if cut, could cause a person to bleed to death. The day after the attack, correctional officers found an inmate-manufactured knife in the cell Alvarez and Santana shared. The blade of the knife had blood on it and appeared to have been sharpened, and a correctional officer opined that the weapon was "capable of killing somebody." Only Alvarez and Santana were in the cell at the time of the attack.
The third incident occurred on November 17, 2015. A correctional officer conducted a search of Alvarez's personal property while transferring Alvarez to the administrative segregation unit of the prison. During the search, the correctional officer found two bibles, each containing an inmate-manufactured weapon.
B. Procedural History
In 2016, the Monterey County District Attorney filed an information charging Alvarez with one count of attempted murder (§§ 664/187, subd. (a) - count 3), two counts of assault by state prisoner (§ 4501 - counts 2 and 4), and three counts of custodial possession of a weapon (§ 4502, subd. (a) - counts 1, 5, and 6). As relevant here, the information further alleged that Alvarez committed count 3 "willfully, deliberately, and with premeditation."
The case proceeded to trial and the jury found Alvarez guilty on all counts. The jury also found true the allegation that Alvarez committed count 3 willfully, deliberately, and with premeditation. The trial court sentenced Alvarez to 52 years to life in prison. This court affirmed the conviction in an unpublished opinion, and the Supreme Court denied review.
In June 2022, Alvarez filed a form petition for resentencing. In the petition, Alvarez alleged: (1) a complaint or information was filed against him that allowed the prosecution to charge him with attempted murder and proceed under the natural and probable consequences doctrine, (2) he was convicted of attempted murder, and (3) he could not presently be convicted of attempted murder under the ameliorative changes set forth in Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court appointed counsel to represent Alvarez and invited briefing from both sides. (§ 1172.6, subds. (b)(3), (c).)
In its brief, the prosecution urged the trial court to deny Alvarez's petition at the prima facie stage, arguing there was "sufficient evidence in the record of conviction to completely refute [Alvarez's] contention that he was convicted of Attempted Murder under the natural and probable consequences doctrine." The prosecution premised its argument exclusively on the factual summary from this court's opinion in Alvarez's direct appeal, stating "[t]he facts in the appellate opinion do not possibly support a theory involving [Alvarez], as a mere aider and abettor, participating in a crime where the attempted murder of the victim was an unintentional consequence." Defense counsel did not file a brief but submitted on Alvarez's petition.
On October 21, 2022, the trial court denied Alvarez's petition. The trial court based its decision on "the People's response, as well as the fact that the Court read the Court of Appeals'[sic] decision to further bolster the People's position that there is no prima facie showing; therefore the petition is denied."
Alvarez timely appealed from the order.
II. Discussion
Alvarez argues the trial court was not permitted to deny his petition at the prima facie stage based solely on the factual summary from the opinion in his direct appeal. The Attorney General does not dispute that point, but instead contends that the court's reasoning for the denial is "inconsequential." According to the Attorney General, Alvarez is ineligible for resentencing "because the record of conviction conclusively establishes that he was the actual perpetrator of the attempted killing and that he was not prosecuted under the natural and probable consequences theory."
We review de novo the denial of a section 1172.6 petition at the prima facie stage. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) "[W]e may affirm a ruling that is correct in law on any ground." (People v. Cortes (2022) 75 Cal.App.5th 198, 204, fn. omitted.)
A. Legal Principles
Effective January 1, 2019, Senate No. Bill 1437 amended" '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).)" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The Legislature later expanded the scope of Senate Bill 1437 to include those convicted of attempted murder. (People v. Coley (2022) 77 Cal.App.5th 539, 548, fn. omitted (Coley) ["Senate Bill No. 775 [(2021-2022 (Reg. Sess.)] clarified that the provisions of section [1172.6] apply to attempted murder and manslaughter, as well as to murder."].) Accordingly, "[a] person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition ...." (§ 1172.6, subd. (a).)
Senate Bill 1437 also created a procedural mechanism "for those convicted under the former law to seek relief under the law as amended." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met . . . including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3))." (Ibid.)
When the trial court receives a petition containing the requisite declaration, it must appoint counsel if requested by the petitioner and then evaluate "whether the petitioner has made a prima facie case for relief." (§1172.6, subds. (b)(3), (c); Lewis, supra, 11 Cal.5th at p. 963.) "If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing" to assess whether to vacate the conviction and resentence the petitioner. (Lewis, supra, 11 Cal.5th at p. 960.) However, "[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
At the prima facie stage, the trial court conducts a limited review and "may look at the record of conviction . . . to determine whether a petitioner has made a prima facie" showing for relief under section 1172.6, subdivision (c). (Lewis, supra, 11 Cal.5th, at p. 971.) The record of conviction includes "the charging document, verdict forms, closing arguments, and jury instructions." (People v. Jenkins (2021) 70 Cal.App.5th 924, 935). "Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Lewis, supra, 11 Cal.5th, at p. 971.) The court should not reject a petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing. (Ibid.) But" 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Ibid.)
B. Analysis
The Attorney General contends that Alvarez does not qualify for resentencing because the record of conviction conclusively establishes that Alvarez was the actual perpetrator of the attempted murder and was not prosecuted under the natural and probable consequences theory. We agree.
A defendant who was the sole and actual perpetrator of an attempted murder is ineligible for resentencing under section 1172.6 as a matter of law. (People v. Hurtado (2023) 89 Cal.App.5th 887, 889 [affirming trial court's denial of resentencing petition without a hearing because defendant "alone attempted to commit murder" and was ineligible for relief as a matter of law]; People v. Patton (2023) 89 Cal.App.5th 649, 657 [affirming trial court's denial of resentencing petition at the prima facie stage because "[a]s the sole and actual perpetrator of the attempted murder . . . Patton is ineligible for resentencing as a matter of law"], review granted June 28, 2023, S279670; cf. People v. Garcia (2022) 82 Cal.App.5th 956, 973 [affirming trial court's denial of resentencing petition because "relief under section 1172.6 is not available to an 'actual killer' "]; People v. Bodely (2023) 95 Cal.App.5th 1193, 1205 (Bodely) [affirming trial court's denial of section 1172.6 petition at prima facie stage when defendant was "the sole person responsible" and "personally killed" victim].)
Furthermore, section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (Coley, supra, 77 Cal.App.5th at p. 548.) "[U]nder the natural and probable consequences doctrine, '[a]n aider and abetter is guilty not only of the intended, or target, crime but also of any other crime a principal in the target actually commits (the nontarget crime) that is a natural and probable consequence of the target crime.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 901.)
Here, the record of conviction establishes that Alvarez was tried as the only perpetrator of the attempted murder. The information did not identify or allude to another participant, and the pertinent jury instructions and verdict form "contained no reference to an accomplice" in connection with the attempted murder charge. (Bodely, supra, 95 Cal.App.5th at p. 1201.)
Although the trial court instructed the jury on an aiding and abetting theory, those instructions applied only to the yard attack incident underlying counts 1 and 2 and not the attempted murder charged in count 3.
Additionally, the jurors were not instructed on the natural and probable consequences doctrine. They were given CALCRIM No. 600, "which advised them that an attempted murder conviction required a finding that 'the defendant[] intended to kill [the victim].'" (Coley, supra, 77 Cal.App.5th at p. 548; accord People v. Lee (2003) 31 Cal.4th 613, 623 ["Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing."], superseded by statute as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 824.)
They were also informed, through CALCRIM No. 601, that Alvarez "acted willfully if he intended to kill when he acted." Thus, by finding Alvarez guilty of attempted murder and finding true the allegation that he acted willfully, deliberately and with premeditation, the jury necessarily decided that Alvarez personally harbored an intent to kill when he alone acted. (Colely, supra, 77 Cal.App.5th at pp. 547-548; Hurtado, supra, 89 Cal.App.5th at p. 893.)
In sum, "the record of conviction irrefutably establishes as a matter of law that" Alvarez was convicted as the actual perpetrator of the attempted murder and not under the natural and probable consequences doctrine. (People v. Harden (2022) 81 Cal.App.5th 45, 56.) Therefore, Alvarez was not eligible for relief under § 1172.6, and the trial court did not err by denying his petition at the prima facie stage.
III. Disposition
The order denying Alvarez's § 1172.6 petition for resentencing is affirmed.
WE CONCUR: DANNER, ACTING P.J., WILSON, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.