People v. Alfaro CA2/5 ( 2020 )

Filed 10/19/20 P. v. Alfaro CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B297485
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. KA088341)
v.
RALPH RICHARD ALFARO
et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Reversed and
remanded.
Victor J. Morse, under appointment by the Court of
Appeal, for Defendant and Appellant Ralph Richard Alfaro.
John P. Dwyer, under appointment by the Court of
Appeal, for Defendant and Appellant Martin Haro.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Idan Ivri, Deputy
Attorney General, for Plaintiff and Respondent.
__________________________
Defendants and appellants Ralph Richard Alfaro and
Martin Haro appeal from the trial court’s postjudgment
orders denying their petitions for resentencing pursuant to
Penal Code section 1170.951 and Senate Bill No. 1437
(Senate Bill 1437). Section 1170.95 provides for vacatur of a
murder conviction obtained under either the natural and
probable consequences doctrine (as here) or the felony
murder theory of liability, if the defendant was not the
killer, did not intend to kill, and was not a major participant
in an underlying felony who acted with reckless disregard
for human life. (People v. Martinez (2019) 31 Cal. App. 5th
719, 723.)
Defendants contend the trial court erred by summarily
denying their petitions without first appointing counsel, and
by denying their petitions on the merits and on the basis
that Senate Bill 1437 and section 1170.95 are
unconstitutional. The People agree.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
We reverse and remand to the trial court. We agree
with the parties that section 1170.95 and Senate Bill 1437
are constitutional, and that the trial court was required to
appoint counsel and to permit briefing before it ruled on
their petitions.
FACTS AND PROCEDURAL HISTORY2
Murder Conviction
In 2009, defendants were part of a group of Hispanic
gang members who chased down and brutally beat an
African American man to death.
In 2012, the jury found Alfaro guilty of first degree
murder (§ 187, subd. (a)) and Haro guilty of second degree
murder (§ 187, subd. (a))—both under a natural and
probable consequences theory of liability. The jury found
true gang and firearm enhancements with respect to both
defendants.
Alfaro was sentenced to 50 years to life in prison. Prior
to sentencing, the prosecution moved to dismiss the gang
enhancement as to Haro, which had the effect of also
dismissing the firearm allegation. Haro was sentenced to 15
years to life in prison.
2 We take judicial notice of our prior nonpublished
opinions in People v. Prado (Mar. 6, 2014, B243204) and
People v. Prado (Jan. 13, 2015, B243204).
3
Appeal
Alfaro appealed, contending that his confession was
illegally obtained, the trial court erred in its instruction of
the jury, and cumulative error. On March 6, 2014, this court
affirmed the trial court’s judgment. (People v. Prado, supra,
B243204.)
On June 2, 2014, our Supreme Court issued its opinion
in People v. Chiu (2014) 59 Cal. 4th 155 (Chiu), which held
that an aider and abettor may not be convicted of first
degree premeditated murder under the natural and probable
consequences doctrine. (Id. at pp. 158–159.) The Supreme
Court remanded Alfaro’s case to this court for
reconsideration in light of Chiu. We reversed Alfaro’s first
degree murder conviction. Upon issuance of the remittitur,
the prosecution was permitted retry Alfaro for first degree
murder. Absent retrial, Alfaro would stand convicted of
second degree murder.
On June 17, 2015, the parties stipulated to
resentencing Alfaro for second degree murder, and the trial
court sentenced Alfaro to 40 years to life imprisonment.
Haro did not appeal his conviction.
4
Section 1170.95 Petitions for Resentencing
Alfaro’s Petition for Resentencing
On February 4, 2019, Alfaro filed a petition for
resentencing under section 1170.95, which the People
opposed based both on constitutional grounds and upon the
facts of the case.
On March 22, 2019, prior to appointment of counsel or
filing of the reply brief, the trial court denied the petition in
a written ruling. It found that: “Alfaro aided and abetted
the murder in this case, and acted with a clear and obvious
intent to kill. He chased the fleeing victim for 100 yards,
caught him, knocked him to the ground, and joined in a
merciless attack on the fallen and terrified man. He made
no effort to help the victim or to prevent the attack from
continuing. His actions clearly demonstrated an intent to
kill the victim and he is ineligible for sentencing relief under
Penal Code § 1170.95. See Penal Code § 189(e)(2) (murder
responsibility exists for defendant who was not the actual
killer but acted with the intent to kill and aided and abetted
the actual killer).” The court did not identify which
documents in the record it relied upon.3
3 Alfaro asserts that the trial court relied on this
court’s 2014 opinion, which was superseded in 2015. We
cannot draw that conclusion. The 2014 opinion is merely
mentioned as affirming the conviction. The quotes in the
5
Alternatively, the trial court found section 1170.95
unconstitutional for impermissibly amending Propositions 7
and 115, violating Marsy’s Law, and violating the separation
of powers doctrine with respect to the powers of the judiciary
and the governor.
Haro’s Petition for Resentencing
On January 9, 2019, Haro filed a petition for
resentencing. The trial court appointed counsel and ordered
the People to file a response on or before March 11, 2019.
On March 11, 2019, the People opposed the petition on
constitutional grounds and upon the facts of the case. The
People served the response on Haro, but not on his attorney.
On March 18, 2019, the trial court denied the petition
in a written order. The court found that “Haro aided and
abetted the murder in this case, and acted with a clear and
obvious intent to kill. He chased the fleeing victim for 100
yards, caught him, and helped knock him to the ground. He
joined the rabid beating administered to the victim and
viciously kicked the victim. He later proudly bragged about
what he had done. He made no effort to help the victim or to
prevent the attack from continuing. Haro’s actions clearly
demonstrate an intent to kill and he is ineligible for
sentencing relief under Penal Code § 1170.95. See Penal
Code § 189(e)(2) (murder responsibility exists for defendant
trial court’s ruling appear to be taken directly from the trial
transcript.
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who was not the actual killer but acted with the intent to kill
and aided and abetted the actual killer).” The court again
did not identify the record basis for its ruling.4
Alternatively, the court found section 1170.95
unconstitutional for the same reasons articulated in Alfaro’s
case.
DISCUSSION
On appeal, defendants argue that section 1170.95 and
Senate Bill 1437 are constitutional, and that they were
entitled to appointment of counsel prior to the trial court
making any determination as to whether they made prima
facie showings that they fall within section 1170.95’s
provisions. Alfaro contends that he was eligible for relief on
the merits.
The People agree that section 1170.95 and Senate Bill
1437 are constitutional. The People also agree that
defendants were entitled to counsel, but for a different
reason: because the record did not demonstrate that
defendants were ineligible for relief under section 1170.95 as
a matter of law.
We agree with the parties that Senate Bill 1437 and
section 1170.95 are constitutional. Contrary to defendants’
4 The People’s response cited to the trial transcripts
when describing texts in which Haro bragged about the
killing. There do not appear to be any other cites to the
record by the People or the court.
7
position that a trial court is required to appoint counsel even
absent a prima facie showing, we have previously held that a
petitioner is entitled to counsel only after he “has made a
prima facie showing that [he] falls within the [statute’s]
provisions” as required by section 1170.95, subdivision (c),
and we maintain that view.5 (People v. Torres (2020) 46
Cal. App. 5th 1168, 1177–1178 (Torres), review granted June
24, 2020, S262011; People v. Smith (2020) 49 Cal. App. 5th 85,
92 (Smith), review granted July 22, 2020, S262835.)
However, because defendants have made the initial prima
facie showing under section 1170.95, subdivision (c), they are
nonetheless entitled to appointment of counsel.
Constitutionality
The trial court denied defendants’ petitions on the
basis that Senate Bill 1437 unconstitutionally (1) amends
section 190, which was passed by referendum in 1978
through Proposition 7, and cannot be amended or repealed
except by the people’s vote; (2) amends Proposition 115
without a two-thirds majority vote; (3) conflicts with Marsy’s
Law (Cal. Const., art. I, § 28); (4) violates the separation of
powers with respect to the governor’s power of clemency; and
5 Although we hold that a petitioner is entitled to
counsel only after making a prima facie showing that he falls
within section 1170.95’s provisions, our holding does not
preclude a trial court from appointing counsel at an earlier
stage of proceedings in its discretion.
8
(5) violates the separation of powers with respect to the
judiciary’s power to resolve specific controversies. The
People concede, and we agree, that this was error.
We have previously held that Senate Bill 1437 does not
unconstitutionally amend Proposition 7, and we have no
reason to deviate from our prior holding. (Smith, supra, 49
Cal.App.5th at pp. 91–92.) The remaining constitutional
challenges have been considered and rejected by numerous
courts. (People v. Lamoureux (2019) 42 Cal. App. 5th 241;
accord People v. Nash (2020) 52 Cal. App. 5th 1041; People v.
Lopez (2020) 51 Cal. App. 5th 589; People v. Alaybue (2020) 51
Cal. App. 5th 207; People v. Johns (2020) 50 Cal. App. 5th 46;
People v. Prado (2020) 49 Cal. App. 5th 480; People v. Bucio
(2020) 48 Cal. App. 5th 300; People v. Solis (2020) 46
Cal. App. 5th 762; People v. Cruz (2020) 46 Cal. App. 5th 740;
People v. Superior Court (Gooden) (2019) 42 Cal. App. 5th
270.) We agree with the results reached in these cases, and
as the parties are also in agreement that Senate Bill 1437 is
not unconstitutional on any of these bases, we do not address
the issue further here.
Merits and Appointment of Counsel
Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under the natural and probable consequences
doctrine can petition to have his or her conviction vacated
and be resentenced. Section 1170.95 initially requires a
9
court to determine whether a petitioner has made a prima
facie showing that he or she falls within the provisions of the
statute as set forth in subdivision (a), including that “(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) [t]he 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[, and] [¶] (3) [t]he petitioner could not be convicted of
first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” (See § 1170.95,
subd. (c).) If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the
trial court may deny the petition.6 (People v. Verdugo (2020)
44 Cal. App. 5th 320, 323, 329–330 (Verdugo), review granted
Mar. 18, 2020, S260493.) If, however, a determination of
eligibility requires an assessment of the evidence concerning
6 For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal. App. 5th 1128, 1138–1139, review
granted Mar. 18, 2020, S260598 (Lewis) [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)
10
the commission of the petitioner’s offense, the trial court
must appoint counsel and permit the filing of the
submissions contemplated by section 1170.95. (Id. at p. 330;
Lewis, supra, 43 Cal.App.5th at p. 1140.)
Here, the trial court denied both defendants’ petitions
on the basis of an analysis of the facts underlying their
convictions without first allowing them the opportunity to
file briefs with the assistance of counsel. We disagree with
defendants that appointment of counsel requires no prima
facie showing whatsoever. (Torres, supra, 46 Cal.App.5th at
pp. 1177–1178; Smith, supra, 49 Cal.App.5th at p. 95.)
However, because we have concluded that Senate Bill 1437
and section 1170.95 are constitutional, and we can discern
no basis in the record for barring either defendant from
eligibility as a matter of law, defendants must be permitted
to proceed to the next stage of review under section 1170.95,
subdivision (c), in which the trial court evaluates, after
appointment of counsel (if requested) and briefing, whether
the facts and circumstances of the offense(s) prevent the
petitioner from making “a prima facie showing that [he] is
entitled to relief.”
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DISPOSITION
The trial court’s orders denying Alfaro and Haro’s
resentencing petitions are reversed. We remand for the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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