People v. Alvarenga CA2/7 ( 2021 )

Filed 12/14/21 P. v. Alvarenga CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308758
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070040-04)
v.
KEVIN ALVARENGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden A. Zacky, Judge. Reversed and
remanded with directions.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.
__________________
A jury in 2013 convicted Kevin Alvarenga and three fellow
gang members of first degree murder, attempted willful,
deliberate and premeditated murder, shooting at an inhabited
dwelling and several related felonies. On appeal this court
reversed the first degree murder convictions of all
four defendants for Chiu error (People v. Chiu (2015) 59 Cal.4th
155 (Chiu)), holding, in part, nothing in the record demonstrated
beyond a reasonable doubt the jury had based its verdict on a
finding that a particular defendant had been the actual killer and
others had directly aided and abetted him, rather than that each
defendant was guilty of first degree murder under the natural
and probable consequences doctrine. (People v. Gomez (Jun. 23,
2015, B251303) [nonpub. opn.].) On remand the People elected
not to retry Alvarenga for first degree murder, accepting a
reduction to second degree murder.
On September 8, 2020 Alvarenga filed a petition to vacate
his murder conviction and to be resentenced under Penal Code
section 1170.95.1 Eight days later the superior court, without
first appointing counsel or inviting briefing, summarily denied
the petition, finding the jury’s true finding that Alvarenga had
personally discharged a firearm causing death or great bodily
injury (§ 12022.53, subd. (d)) conclusively established Alvarenga
was ineligible for resentencing relief as a direct perpetrator in the
killing or, at minimum, a major participant in the crimes who
had acted with reckless indifference to human life.
1 Statutory references are to this code.
2
Alvarenga contends, and the Attorney General concedes,
the superior court committed prejudicial error by failing to
appoint counsel and prematurely engaging in factfinding before
issuing an order to show cause and conducting an evidentiary
hearing with respect to Alvaraenga’s eligibility for resentencing
on the murder conviction. We agree and reverse the order
summarily denying Alvarenga’s petition.
Alvarenga also argues that on remand the superior court
should consider vacating his conviction for attempted murder,
which, like his original conviction for first degree murder, was
based on the natural and probable consequences doctrine. By its
express terms section 1170.95 as originally enacted applied only
to convictions for murder. (See People v. Harris (2021)
60 Cal.App.5th 557, 565-566, review granted Apr. 21, 2021,
S267529.) However, Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2) (Senate Bill 775), approved by the
Governor October 5, 2021 and effective January 1, 2022, expands
the reach of that ameliorative legislation to include certain
convictions for attempted murder and voluntary manslaughter.
Accordingly, because that amendment will be operative before
this opinion is final, on remand the superior court is to permit
Alvarenga to amend his petition to include his conviction for
attempted murder, appoint counsel for Alvarenga, issue an order
to show cause with respect to both the murder and attempted
murder convictions and conduct further proceedings in
accordance with section 1170.95, subdivision (d), as amended by
Senate Bill 775.
3
FACTUAL AND PROCEDURAL BACKGROUND
1. Alvarenga’s Murder Conviction, Appeal and Sentencing
on Remand
a. The trial
Our opinion in People v. Gomez, supra, B251303, describes
in detail the evidence presented at trial and the jury’s verdict.
Alvarenga, Juan Carlos Andrade, Jovani Gomez and
Leonardo Garcia were charged in an information with murder
(§ 187, subd. (a)) (count 1), attempted willful, deliberate and
premeditated murder (§§ 187, subd. (a), 664) (count 2), two counts
of shooting at an inhabited dwelling (§ 246) (counts 3 and 4),
discharge of a firearm with gross negligence (§ 246.3, subd. (a))
(count 7) and street terrorism (§ 186.22, subd. (a)) (count 8). It
was specially alleged the offenses had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)) and as to
counts 1 through 4 that each of the defendants had personally
used and intentionally discharged a firearm causing great bodily
injury or death (§ 12022.53, subds. (b), (c), (d)) and/or a principal
had personally used and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subd. (e)(1)).
According to the evidence at trial, German Chairez and
Leonel Serrano were members of Columbus Street, a criminal
street gang. Alvarenga, Andrade, Gomez and Garcia were
members of the Vincent Town criminal street gang, a rival of
Columbus Street’s. On November 19, 2010 Chairez and Serrano
were visiting a friend at an apartment complex in the North Hills
section of the San Fernando Valley. As they walked down the
stairs on their way out of the complex, Serrano heard someone
shout “Fuck Columbus!” and saw two men shooting at him and
Chairez. Serrano and Chairez immediately turned and raced
4
back up the stairs as shots continued to be fired. Both men were
hit in the back. Chairez died from a bullet that perforated his
lung. Serrano survived.
Salvador Ortiz was in the area of the apartment complex on
the night of the shooting and encountered Andrade, Garcia and
Gomez, known to him by their gang monikers, “Happy,” “Baby”
and “Clever,” respectively. Ortiz noticed Andrade and Garcia
were armed. One man had a semiautomatic weapon; the other a
revolver. Their conversation was friendly because Ortiz, a
member of the Barrio Van Nuys gang, was not a rival. Within a
few minutes of talking to them, Ortiz heard a person in the alley
shout that a “Columbus Streeter” was nearby. Andrade, Garcia
and Gomez ran toward the apartment complex. Ortiz saw Garcia
quickly pull out a gun from underneath his sweatshirt. Almost
immediately, Ortiz heard a barrage of gunshots fired from two
different guns. He did not see the actual shooting.
At trial Serrano denied seeing the shooters. Testifying
after Serrano, Maria Gutierrez (Chairez’s girlfriend and the
mother of his child) explained she had overheard Serrano tell a
friend that Clever and Big Boy, referring to Gomez and Garcia,
had been the shooters and Happy and Kevin, referring to
Andrade and Alvarenga, “had [also] been there.” Brandon
Binning testified that two days before the shooting Andrade had
told him something “was going to go down” and “Columbus Street
was going to see that Vincent Town was back.”
The People’s theory at trial was that each of the defendants
was either a direct perpetrator of the crimes charged or aided and
abetted those offenses. In addition to instructions on murder
(CALCRIM No. 520), first degree premeditated murder
(CALCRIM No. 521), attempted murder (CALCRIM No. 600),
5
attempted premeditated murder (CALCRIM No. 601) and
shooting at an inhabited dwelling (CALCRIM No. 965), the jury
was instructed on direct aiding and abetting principles
(CALCRIM Nos. 400, 401) and the natural and probable
consequences doctrine (CALCRIM Nos. 402, 403). Under the
natural and probable consequences doctrine, the jury was told, it
could find any one of the defendants guilty of murder and/or
attempted murder if he aided and abetted the target offenses of
shooting at an inhabited dwelling and/or the uncharged target
offense of assault with a firearm, and the natural and probable
consequence of either target offense was murder or attempted
murder.
The jury convicted Alvarenga, Andrade, Gomez and Garcia
of first degree premeditated murder and all other charged
offenses and found each of the special allegations true, including
the section 12022.53, subdivision (d), firearm-use enhancement
allegations as to the murder, attempted murder and shooting at
an inhabited dwelling charges. Alvarenga was sentenced to an
aggregate indeterminate state prison term of 160 years to life.
b. Alvarenga’s appeal
On appeal we reversed Alvarenga’s and his codefendants’
convictions for first degree murder based on the Supreme Court’s
decision in Chiu, supra, 59 Cal.4th 155, decided after their trial,
which held aiders and abettors may be convicted of first degree
premeditated murder under direct aiding and abetting principles,
but not under the natural and probable consequences doctrine.
(Id. at pp. 158-159.)2 We explained that, although the
2 We also reversed the convictions for discharge of a firearm
with gross negligence as a lesser included offense of the charge of
shooting at an inhabited dwelling.
6
instructions arguably required the jury to find the individual who
actually shot and killed Chairez possessed the requisite mental
state of premeditation and deliberation for a first degree murder
conviction, “without a clarification that the natural and probable
consequences doctrine was limited to second degree murder, the
instructions as a whole effectively permitted the jury to convict
some or all of the defendants of first degree premeditated murder
as an aider or abettor under that legally invalid theory.”
We rejected the Attorney General’s argument the Chiu
error was harmless in light of the evidence at trial of planning
and premeditation. We held, “Although the evidence is certainly
sufficient to support a finding of premeditation and deliberation
in this case, the prosecutor relied heavily on the natural and
probable consequences doctrine at trial, telling the jury
repeatedly during closing argument it need not find the
defendants intended to commit a murder so long as it found
murder was a natural, probable and foreseeable consequence of a
different target offense. Nothing in this record demonstrates
beyond a reasonable doubt that the jury based its verdict on the
legally valid direct aiding and abetting (or direct perpetrator)
theory rather than the invalid natural and probable
consequences doctrine.” (Fn. omitted.)
We remanded the case, explaining the People had the
election in accordance with Chiu of accepting a reduction of the
murder conviction on count 1 to second degree murder, with all
associated enhancements found true by the jury, or to retry the
greater offense of first degree premeditated murder (along with
the accompanying specially alleged enhancements) under a direct
aiding and abetting theory.
7
c. Proceedings on remand
On remand the People elected not to retry the first degree
murder charge. Resentencing Alvarenga, the court imposed an
indeterminate state prison sentence of 120 years to life.
2. Alvarenga’s Petition for Resentencing
On September 8, 2020 Alvarenga, representing himself,
filed a petition for resentencing pursuant to section 1170.95 and
requested the court appoint counsel to represent him in the
resentencing proceedings. Alvarenga checked all the boxes on the
printed form petition establishing eligibility for resentencing
relief, including the boxes stating he had been convicted of first or
second degree murder under the natural and probable
consequences doctrine and could not now be convicted of first or
second degree murder because of changes made to sections 188
and 189 by Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437).
The superior court summarily denied the petition on
September 16, 2020 without appointing counsel, requesting
briefing from the prosecutor or holding an evidentiary hearing.
The court explained a defendant could still be convicted of
murder under the felony-murder rule if he or she was the actual
killer, aided and abetted the killing or, as phrased by the court,
“was a major participant in the crime and acted with reckless
indifference.” The court then determined the jury’s true finding
that Alvarenga had personally and intentionally discharged a
firearm pursuant to section 12022.53, subdivision (d), necessarily
established he was ineligible for relief either as a direct
perpetrator in the killing (§ 189, subd. (e)(1)) or as a major
participant who had acted with reckless indifference of the
victim’s life (§ 189, subd. (e)(3)).
8
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested;3
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 962-963.)
3 As amended by Senate Bill 775 effective January 1, 2022,
the requirement to appoint counsel is set forth in new
subdivision (b)(3) of section 1170.95, rather than subdivision (c).
9
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. 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. If so, the court must issue
an order to show cause. . . . However, 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.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)4 The prosecutor and petitioner may rely on the
4 As amended by Senate Bill 775 effective January 1, 2022,
section 1170.95, subdivision (d)(3), clarifies that, “A finding that
there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
10
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
2. The Superior Court Failed To Appoint Counsel as
Required and Improperly Engaged in Factfinding Before
Issuing an Order To Show Cause; Its Errors Were Not
Harmless
In People v. Lewis, supra, 11 Cal.5th 952, decided after
Alvarenga’s opening brief was filed, the Supreme Court held,
once a petitioner files a facially sufficient petition requesting
counsel, the superior court must appoint counsel before
performing any prima facie review under section 1170.95,
subdivision (c). Because Alvarenga checked all the necessary
boxes on his form petition, the superior court erred by denying
his petition without first appointing counsel.
The Lewis Court also held a superior court’s failure to
appoint counsel to represent a petitioner when assessing whether
he or she has made a prima facie showing of entitlement to relief
pursuant to section 1170.95, subdivision (c), is subject to
harmless error analysis. (Lewis, supra, 11 Cal.5th at pp. 957-
958, 973-974.) That is, reversal is not required notwithstanding
the failure to appoint counsel if a review of the record of
conviction indisputably establishes the petitioner is ineligible for
relief. Here, however, because Alvarenga’s eligibility for
resentencing cannot be determined without an evaluation of the
evidence and additional factfinding, the harmless error doctrine
is inapplicable.
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”
11
As discussed, this court held the trial record did not
establish beyond a reasonable doubt that Alvarenga had been
convicted of first degree murder on a legally valid theory (as the
shooter acting with express malice and premeditation or as a
direct aider and abettor of such a shooter) rather than as an aider
and abettor of the target offense of shooting at an inhabited
dwelling under the natural and probable consequences theory
invalidated in Chiu. That holding necessarily established
Alvarenga’s prima facie eligibility for resentencing under
section 1170.95—that is, the record of conviction does not
conclusively establish Alvarenga is ineligible for relief.
(See Lewis, supra, 11 Cal.5th at pp. 970-971.) Accordingly,
Alvarenga is entitled to an evidentiary hearing pursuant to
section 1170.95, subdivision (d), to determine whether the court
should vacate his murder conviction and resentence him on the
remaining counts.
The superior court’s summary denial of Alvarenga’s
petition, predicated on the jury’s true finding of the
section 12022.53, subdivision (d), firearm-use enhancement, rests
on an apparent misunderstanding of both the significance of that
enhancement and the requirements for application of the felony-
murder rule. To be sure, the jury found Alvarenga had
personally and intentionally discharged a firearm, proximately
causing death or great bodily injury. However, that finding does
not necessarily encompass a finding of actual malice. In light of
the instructions and the prosecutor’s closing argument, the jury
may have convicted Alvarenga of murder and found true the
related section 12022.53, subdivision (d), firearm-use
enhancement based on his participation in the target crime of
shooting at an inhabited dwelling and its conclusion Chairez’s
12
death was the natural and probable consequence of that act.
(See People v. Offley (2020) 48 Cal.App.5th 588, 598-599
[“[b]ecause an enhancement under section 12022.53,
subdivision (d) does not require that the defendant acted either
with the intent to kill or with conscious disregard to life, it does
not establish that the defendant acted with malice
aforethought”].)
Under the circumstances of this case the section 12022.53,
subdivision (d), finding also does not justify the superior court’s
conclusion Alvarenga was ineligible for resentencing as a matter
of law under the current version of the felony-murder rule, which
applies only to a participant in the perpetration or attempted
perpetration of one of the felonies listed in section 189,
subdivision (a), in which a death occurs (§ 189, subd. (e)).
Neither shooting at an inhabited dwelling nor the uncharged
offense of assault with a firearm—the two target offenses argued
by the prosecutor in support of the People’s natural and probable
consequences theory of murder—is identified in section 189,
subdivision (a). Neither supports a guilty verdict on a charge of
murder or attempted murder under the felony-murder rule,
whether or not the petitioner was the actual killer (§ 189,
subd. (e)(1)) or a major participant in the offense acting with
reckless indifference (§ 189, subd. (e)(3)).
3. On Remand Alvarenga May Amend His Petition To
Include His Conviction for Attempted Murder Under the
Natural and Probable Consequences Doctrine
As originally enacted by Senate Bill 1437 section 1170.95,
subdivision (a), authorized a petition to vacate a murder
conviction and to be resentenced only by “[a] person convicted of
felony murder or murder under a natural and probable
13
consequences theory.” Even those courts of appeal that have held
Senate Bill 1437’s amendment to section 188, subdivision (a)(3)’s
prohibition of imputing malice applied to a charge of attempted
murder under the natural and probable consequences doctrine
recognize that section 1170.95, by its express terms, does not
authorize a petition to vacate an attempted murder conviction.
(See, e.g., People v. Harris, supra, 60 Cal.App.5th at p. 565,
review granted [“[n]o court has held that Senate Bill 1437 applies
retroactively to final convictions of attempted murder”]; People v.
Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26,
2020, S259983 [“relief provided in section 1170.95 is limited to
certain murder convictions and excludes all other convictions,
including a conviction for attempted murder”].)
As amended effective January 1, 2022 by Senate Bill 775,
however, section 1170.95, subdivision (a), will provide, “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining
counts . . . .” (Italics added.)5
5 In an uncodified statement of its intent in enacting Senate
Bill 775, the Legislature declared the legislation “(a) Clarifies that
persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories. [¶]
(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952,
14
Our remittitur remanding this cause for an evidentiary
hearing as to Alvarenga’s eligibility for resentencing under
section 1170.95 will issue after the effective date of Senate
Bill 775’s amendment expanding the scope of section 1170.95 to
include convictions for attempted murder under the natural and
probable consequences doctrine. The reasons that preclude
finding Alvarenga ineligible for resentencing relief as a matter of
law with respect to his conviction for the murder of Chairez apply
equally to his conviction for the attempted murder of Serrano.
Accordingly, on remand the superior court must permit
Alvarenga to amend his petition to include a request to vacate his
attempted murder conviction and the order to show cause to be
issued is to include both convictions. (See Gentile, supra,
10 Cal.5th at p. 852 [“[n]ewly enacted legislation lessening
criminal punishment or reducing criminal liability presumptively
applies to all cases not yet final on appeal at the time of the
legislation’s effective date”].)
961-970, regarding petitioners’ right to counsel and the standard for
determining the existence of a prima facie case. [¶] (c) Reaffirms
that the proper burden of proof at a resentencing hearing under this
section is proof beyond a reasonable doubt. [¶] (d) Addresses what
evidence a court may consider at a resentencing hearing (clarifying
the discussion in People v. Lewis, supra, at pp. 970-972).” (Stats.
2021, ch. 551, § 1.)
15
DISPOSITION
The order denying Alvarenga’s section 1170.95 petition is
reversed. On remand the superior court is to permit Alvarenga to
amend his petition to include his conviction for attempted
murder, appoint counsel for Alvarenga, issue an order to show
cause with respect to Alvarenga’s eligibility for resentencing for
murder and attempted murder and conduct further proceedings
in accordance with section 1170.95, subdivision (d), as amended
by Senate Bill 775.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
16