People v. Alvarez CA4/3 ( 2023 )

Filed 10/3/23 P. v. Alvarez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061783
v. (Super. Ct. No. 15ZF0005)
FRANCISCO ALVAREZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Kazuharu
Makino, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Francisco Alvarez filed a petition for resentencing pursuant to
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former Penal Code section 1170.95. The trial court denied Alvarez resentencing relief at
the prima facie hearing on the petition. Appointed counsel for Alvarez filed a brief
pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth the
facts of the case, and asked this court to conduct an independent review of the record.
Acknowledging Anders v. California (1967) 386 U.S. 738, counsel also identified a
potential issue to assist in our independent review. Alvarez was given an opportunity to
file a supplemental brief but did not do so. Under Delgadillo, we exercise our discretion
to conduct an independent review of the record.
We have examined the entire record and we find no reasonably arguable
issue. (Delgadillo, supra, 14 Cal.5th at p. 232.) We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
In September 2018, Alvarez pleaded guilty to attempted murder (§§ 664,
subd. (a), 187, subd. (a); count 1) and aggravated assault on a peace officer (§ 245, subd.
(c); count 2). He also admitted to personally using a deadly weapon (§ 12022, subd.
(b)(1)) and inflicting great bodily injury (§ 12022.7, subd. (a)) as to count 1. The trial
court imposed a total prison sentence of 14 years 4 months.
In May 2022, Alvarez filed a petition for resentencing on count 1 pursuant
to section 1172.6 and counsel was appointed for him. The People filed a response to
Alvarez’s petition, arguing it should be denied. A prima facie hearing on the petition was
conducted by the trial court. At this hearing the trial court reviewed the petition, the
People’s response, as well as the record of conviction, and found Alvarez had failed to
establish a prima facie showing for relief. Alvarez appealed.
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Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6,
with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute as section
1172.6. All further statutory references are to the Penal Code.
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DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Stats. 2018, ch. 1015 (Senate 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
Senate Bill 1437 also created procedures “for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.” (Lewis, at p. 957.) A
subsequent amendment to former section 1170.95 extended relief to defendants convicted
of attempted murder based on the natural and probable consequences doctrine or
manslaughter. (Sen. Bill No. 775 (2021–2022 Reg. Sess.) § 1; Stats. 2021, ch. 551
(Senate Bill 775).)
After receipt of a section 1172.6 resentencing petition, counsel shall be
appointed upon petitioner’s request. (§ 1172.6, subd. (b)(1)–(3).) The prosecutor must
then file a response to the petition, and a reply may be filed by the petitioner. (§ 1172.6,
subd. (c).) The trial court shall then “hold a hearing to determine whether the petitioner
has made a prima facie case for relief.” (Ibid.)
At the prima facie hearing, the trial court may rely on the record of
conviction. (Lewis, supra, 11 Cal.5th at pp. 970–971.) The record of conviction may
include the charging document, change of plea form, and abstract of judgment. (People
v. Self (2012) 204 Cal.App.4th 1054, 1059.) “The record of conviction will necessarily
inform the trial court’s prima facie inquiry under [former] section 1170.95, allowing the
court to distinguish petitions with potential merit from those that are clearly meritless.”
(Lewis, supra, at p. 971.)
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Appellate counsel suggests we consider whether the facts admitted to by
Alvarez in his guilty plea were sufficient to establish a prima facie showing of relief.
When considering a plea, “a petitioner convicted of murder is ineligible for resentencing
if the record establishes, as a matter of law, that (1) the complaint, information, or
indictment did not allow the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine, or another theory of
imputed malice; (2) the petitioner was not convicted under such theory; or (3) the
petitioner could presently be convicted of murder or attempted murder under the law as
amended by Senate Bill No. 1437 (2017–2018 Reg. Sess.).” (People v. Flores (2022) 76
Cal.App.5th 974, 987.)
Here, the trial court reviewed the record of conviction and found Alvarez to be
“the actual perpetrator.” His conviction “was not based on natural or probable
consequences or any other form of vicarious liability, aiding and abetting.” In his guilty
plea form, which Alvarez initialed and signed under the penalty of perjury, he admitted
the following: “I willfully and unlawfully attempted to kill Joseline A., a human being,
with specific intent to kill. I was further personally armed with a knife and personally
inflicted great bodily injury on her.” By admitting these allegations, Alvarez admitted
facts necessary to sustain his conviction under the law as amended by Senate Bills 1437
and 775.
After independently reviewing the entire appellate record, we find no arguable
issues.
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DISPOSITION
The postjudgment order denying the resentencing petition is affirmed.
MOTOIKE, J.
WE CONCUR:
MOORE, ACTING P.J.
SANCHEZ, J.
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