People v. Albor CA2/6 ( 2021 )

Filed 9/21/21 P. v. Albor 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B306210
(Super. Ct. Nos.
Plaintiff and Respondent, F000368215001, F368215)
(San Luis Obispo County)
v.
J. EFRAIN GONZALEZ
ALBOR,
Defendant and Appellant.
J. Efrain Gonzalez Albor appeals the denial of his petition
pursuant to Penal Code section 1170.95.1 We affirm.
FACTS
Convictions
In 2006, Albor pled no contest to willful, deliberate, and
premediated murder. (§ 187, subd. (a).) He admitted the special
circumstance that he committed the murder by lying in wait.
(§ 190.2, subd. (a)(15).) Albor also pled no contest to one count of
1 All statutory references are to the Penal Code.
assault with a deadly weapon (§ 245, subd. (a)(1)) and that he
personally inflicted great bodily injury during the assault. He
was sentenced to life without the possibility of parole.
Offenses
The facts underlying the offenses are taken from the
transcript of the preliminary hearing.
Albor and his wife lived in an apartment with their adult
son. Albor formed the belief that his wife and son were having
sex. In October 2004, he threatened to kill his wife and son.
Albor was arrested and the trial court granted a protective order.
In January 2005, Albor was no longer living with his wife
and son. He broke into their apartment when they were not
home. He went into the bathroom with a knife and hid behind
the shower curtain.
When Albor’s wife and son returned home, his wife went
into the bathroom. She thought she was alone. Albor came out of
the shower, grabbed his wife from behind, and held a knife to her
neck. She screamed to her son for help.
When their son came in, Albor threw his wife aside and
threatened their son with the knife. The three of them moved out
into the hallway. Albor’s wife reentered the bathroom and shut
the door. Albor stabbed their son.
When Albor’s wife came out of the bathroom, she saw her
son lying on the bed. Albor stabbed her and beat her before
leaving in their son’s car. He was arrested the next day. Albor’s
son died from being stabbed once in the chest.
Section 1170.95 Petition
Albor’s section 1170.95 petition was on a form. Albor
checked the boxes that said: “A complaint, information, or
indictment was filed against me that allowed the prosecution to
2.
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine”; “I plead guilty or no
contest to 1st or 2nd degree murder in lieu of going to trial
because I believed I could have been convicted of 1st or 2nd
degree murder at trial pursuant to the felony murder rule or the
natural and probable consequences doctrine”; and “I could not
now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”
Albor also requested appointment of counsel.
The trial court appointed counsel to assist Albor with his
petition. Counsel told the court that he was Albor’s counsel at
the time he pled to the charges. Counsel said that Albor acted
alone, and he did not believe Albor was entitled to relief.
The trial court denied the petition without an evidentiary
hearing.
DISCUSSION
I
Effective January 1 2019, the Legislature amended the
definition of murder to eliminate the felony-murder rule and the
natural and probable consequences theory of malice. (§§ 188,
189; Stats. 2018, ch. 1015, §§ 2, 3.) As part of the change, the
Legislature also enacted section 1170.95 to give those who have
been convicted of murder under the felony-murder rule or on the
natural and probable consequences theory to have the conviction
vacated and to be resentenced on any remaining counts. (Stats.
2018, ch. 1015, § 4.)
Section 1170.95, subdivision (a) provides:
“(a) A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the
3.
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.
“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
Section 1170.95, subdivision (c) provides for appointment of
counsel on petitioner’s request and requires the court to
determine whether petitioner has made a prima facie showing
that he qualifies for relief under the statute. If petitioner has
made a prima facie showing, section 1170.95, subdivision (d)(1)
requires that the court must hold a hearing to determine whether
to vacate the murder conviction.
II
No Prima Facie Showing
Albor contends the trial court erred in denying his petition
based on facts that do not appear in his petition.
Recently, in People v. Lewis (2021) 11 Cal.5th 952, our
Supreme Court decided that section 1170.95, subdivision (c)
requires the appointment of counsel whenever the petitioner files
a petition conforming to the requirements of section 1170.95,
including a request for counsel. Here the trial court appointed
counsel for Albor.
4.
Our Supreme Court also held that the trial court can rely
on the record of conviction in determining whether petitioner has
shown a prima facie case. (People v. Lewis, supra, 11 Cal.5th at
p. 970.) Here the record of conviction unequivocally shows that
Albor cannot make a prima facie case for relief. Albor acted
alone. He was not convicted under the felony-murder rule or the
natural and probable consequences theory.
III
Sixth Amendment Right to Counsel
Albor contends he was denied his Sixth Amendment right
to counsel when his counsel admitted he (Albor) was not entitled
to relief.
Our Supreme Court has held that petitioner is not
constitutionally entitled to counsel at the outset of the section
1170.95, subdivision (c) process. (People v. Lewis, supra, 11
Cal.5th at p. 973.) That right applies only when petitioner
establishes a prima facie case. (Ibid.) Here Albor failed to
establish a prima facie case.
Moreover, any deficiency in counsel’s performance was
harmless by any standard. The record of conviction
unequivocally shows Albor is not entitled to relief. Nothing
Albor’s counsel said had any effect.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J. TANGEMAN, J.
5.
Hernaldo J. Baltodano, Judge
Superior Court County of San Luis Obispo
______________________________
Christopher Love, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill, and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
6.