People v. Alvarez CA2/5

Filed 6/22/22 P. v. Alvarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308669
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA234059)
v.
DOUGLAS ALVAREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Stephen A. Marcus, Judge. Affirmed.
Michele A. Douglas, under appointment of 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, David E. Madeo and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Douglas Alvarez appeals from the trial court’s
denial of his Penal Code section 1170.951 petition for
resentencing. We affirm.
II. BACKGROUND2
“Annice Waldrop [was] sitting in a car with [Charles]
Keaton [(the victim) near] Westlake and Maryland Streets [o]n
the afternoon of November 20, 2001. [The victim] wanted to
purchase drugs before they left. []Aguilar approached the car
and asked if they wanted to buy something. []Waldrop said, ‘“A
nickel.”’ As soon as []Aguilar stepped toward the car with the
cocaine base in his hand, police officers came out of the alley.
[]Aguilar dropped the cocaine base to the ground. [The victim]
began eating crackers. The officers ordered []Aguilar to the
sidewalk area [and] . . . told [him] to turn around and put his
hands on his head. [¶]
“One of the officers approached the car . . . [and] asked [the
victim] and []Waldrop what they were doing. They told the
officer they were trying to sell []Aguilar a Walkman. The officer
asked, ‘“What else are you guys doing?”’ The officer shined his
flashlight on the ground, stating, ‘“Well, what is that?”’ [The
victim] told the officer it was part of the crackers he was eating.
1 All further statutory references are to the Penal Code.
2 The following is taken from the unpublished opinion in the
direct appeal from defendant’s judgment of conviction. (People v.
Alvarez (Aug. 4, 2005, B176679) (Alvarez).)
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The officer ran his foot across the cocaine base, grinding it into
the ground. [He] then told []Waldrop and [the victim] to leave.
[¶]
“A short time later, []Waldrop and [the victim] encountered
[]Aguilar again. [He] began swearing at []Waldrop[,] . . . ask[ing],
‘“Why did [she] do his stuff like that[?]”’ []Aguilar [then] slapped
[]Waldrop in the jaw. [The victim] intervened, saying: ‘“That’s
my daughter, why are you hitting her? She is a girl.”’ []Aguilar
whistled for assistance from nearby gang members. Three
individuals ran up and grabbed []Aguilar, telling him, ‘“Leave
[the victim] alone.”’ The individuals told [the victim] and
[]Waldrop to leave. [¶]
“When []Aguilar was released, he ran across the street[,]
. . . grabbed a weight belt[,] and began swinging it at [the victim].
[The victim] grabbed a telephone and struck []Aguilar. The three
[gang members] again restrained []Aguilar and told [the victim]
and []Waldrop to leave. []Waldrop and [the victim then] left. [¶]
“[]Waldrop rented a room so that [the victim] would have a
place other than his car to stay that night. However, [she] was
unable to find [the victim] later that evening. []Waldrop learned
of [the victim]’s death at approximately 4[:00] a.m. the following
morning when she returned to his car.
“[]Waldrop knew []Aguilar . . . [because she] had stolen
items from stores and sold them to [him]. []Waldrop had also
seen [defendant] selling drugs in the neighborhood. [She]
positively identified []Aguilar from a photographic lineup shown
to her by the police as the man who fought with [the victim].
[She] also identified [defendant] from a photographic lineup as
someone from whom she had purchased drugs in the
neighborhood. []Waldrop was fearful about identifying []Aguilar
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because she believed he might hurt her or her family. [She] told
[Los Angeles Police Department] Detective Breuer, ‘“Oh my God,
they’re going to get me.”’ An audiotape of Detective Breuer’s
interview of []Waldrop was played for the jury at trial and
admitted [in] evidence.
“On November 21, 2001, James Polk was [near] Westlake
and Maryland Streets acting as a lookout for individuals selling
drugs. This was during the early morning hours after the
altercation involving []Waldrop, [the victim], and []Aguilar.
[]Polk saw defendants walking toward him. At that time, []Polk
did not know []Aguilar. [But he] knew [defendant] was a drug
dealer and narcotics ‘enforcer’ in the area. []Polk heard []Aguilar
ask [defendant] in Spanish, ‘“Is that him there?”’ [Defendant]
responded, ‘“No.”’ [¶]
“[]Aguilar and [defendant] continued walking up the hill
towards an alley. []Polk walked to the opposite sidewalk where
he spoke to some other people. []Polk asked if they knew the
identity of []Aguilar who was accompanying [defendant]. []Polk
saw [the victim] walk towards a little ‘hooch’ in the alley. [The
victim] repaired radios and televisions in the structure. Within
seconds, []Polk heard what sounded like two or three gunshots
from the direction of the alley. When []Polk looked up, he saw
flashes coming from within the alley. []Polk crossed the street
and called the police.
“[]Polk knew Carlos Medrano who also worked as a lookout
for drug traffickers in the area of the alley. []Medrano usually
stayed in the dumpster area. [He] was standing behind the
dumpster on the morning [the victim] was killed. At trial,
[]Medrano stated he lied to the police when he was questioned
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later that morning because he was ‘very drugged’ and wanted to
get released. [¶]
“[]Medrano told the police [defendant] and []Aguilar walked
up to the roof of an apartment building. Thereafter, a Black man
walked up the alley. The two men came down to the alley. . . .
[]Medrano related [to the police] that []Aguilar said to the Black
man, ‘“What’s up, [racial slur]?”’ []Aguilar then raised a gun and
shot the Black man in the head. Two or three shots were fired.
When first interviewed, []Medrano told the police the Black man
fell to the ground screaming. [¶]
“[]Medrano knew []Aguilar, [defendant], and [the victim].
[]Medrano later identified []Aguilar (known as El Catracho) from
a photographic lineup. [He] told the police that []Aguilar shot the
Black man. []Medrano also identified [defendant] (known as
Sureno) as the man who was with []Aguilar at the time of the
shooting.
“Two audiotaped interviews of []Medrano’s discussions with
the police were played at trial. Transcripts of the tapes were also
provided to the jurors. [¶]
“An autopsy revealed that [the victim] died as the result of
a single gunshot wound to the head. Bullet fragments recovered
from [the victim]’s brain were later examined by a criminalist
and were found to be fragments from a .38 caliber or [nine-]
millimeter bullet. [¶] . . . [¶]
“[Defendant] was arrested on November 30, 2001. [He] had
cocaine base in his mouth at the time. . . . Police recovered the
following items during a search of [defendant’s] apartment: a
holster; nine-millimeter ammunition; and .22 caliber
ammunition. The holster appeared to be for a small caliber gun
such as a .22 caliber or .38 caliber.” (Alvarez, supra, B176679.)
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III. PROCEDURAL BACKGROUND
A jury convicted defendant of first degree murder and
found true the allegation that a principal personally used and
discharged a handgun causing great bodily injury within the
meaning of section 12022.53, subdivision (d). The jury was
unable to reach a verdict on the allegation that the offense was
committed for the benefit of a criminal street gang and the trial
court declared a mistrial on that allegation.
The trial court sentenced defendant to 25 years to life in
prison. In August 2005, the Court of Appeal affirmed the
judgment of conviction.
On April 19, 2019, defendant filed a petition for
resentencing under section 1170.95, asserting that he was not the
actual killer. On May 21, 2019, the trial court appointed counsel
to represent defendant. On June 17, 2019, the District Attorney
opposed the petition, arguing that defendant had not been
convicted under either a natural and probable consequences or a
felony murder theory, but rather as a direct aider and abettor to
the murder. On July 17, 2020, defendant filed a reply, arguing
that his conviction was based on a natural probable consequences
theory of culpability, which had been abolished by Senate Bill No.
1437 (Senate Bill 1437).
On October 7, 2020, the trial court conducted a hearing and
denied the petition because the record of conviction, including the
unpublished Court of Appeal opinion affirming the conviction,
demonstrated that defendant was ineligible for relief as a matter
of law.
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IV. DISCUSSION
Defendant contends that because the prosecutor made
comments during argument from which the jury could have
inferred that it could convict defendant under a natural and
probable consequences theory, he made a prima facie showing
that he was eligible for resentencing.
A. Background
1. Prosecutor’s Arguments
During his closing remarks, the prosecutor discussed aiding
and abetting and made the following comments: “There is in
your jury instruction an explanation of aiding and abetting a
crime. Before I get to it, just let me explain the principle. [¶]
Anyone who assists a person in the commission of a crime
knowing that this person is going to commit a crime is equally
guilty. If you and I get together and you say, ‘Listen, I want to go
rob the 7-Eleven. I need a ride. Could you take me there? [¶]
‘And also after the crime I am going to need to get away, so could
you stay there and wait for me and when I am done I will come
out and you can take me away from the crime scene.’ [¶] When
that robbery takes place, when you go in and rob the 7-Eleven
and you come out and I take you from the crime scene, I robbed
the 7-Eleven. There is no question—there shouldn’t be any
question because I am really one of the people who is really
making this crime possible.”
Shortly after making those comments, while still in closing,
the prosecutor returned to the topic of aiding and abetting,
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explaining: “And of course, I hope this makes common sense,
that all of the people who assist and aid in the commission of a
crime, in this case the murder, make it possible for it to occur. [¶]
And so everybody is equally as guilty of committing the murder,
not just the person who actually pulls the trigger, but everybody
who made the crime possible with knowledge that the person who
did the murder was going to go out and commit a crime. Not
necessarily a murder, but some kind of violent assault.”
During rebuttal, the prosecutor again addressed the
concept of aiding and abetting, this time in the context of the
facts of defendant’s case: “[Defendant] does not need to know
that []Aguilar is going to commit a murder. He has to only have
knowledge of this criminal purpose; that is, to commit some act of
violence against [the victim], and when the murder takes place
that it is reasonably foreseeable that this sort of violence would
take place. [¶] The only way [defendant] can get out of criminal
responsibility is if you believe that he had no idea that []Aguilar
was enlisting his help in order to commit an act of criminal
violence against [the victim], and that is not a reasonable
interpretation of the evidence.”
Later in rebuttal, the prosecutor revisited the concept of
aiding and abetting under the facts of defendant’s case: “You
would have to believe, in order to believe that [defendant] had no
idea what was going to happen, that he believed that []Aguilar
had some non-criminal, nonviolent purpose in attempting—in
enlisting [defendant] to contact [the victim] at 3:00 in the
morning. [¶] Was he going to counsel him? Did [defendant]
reasonably believe that []Aguilar was going to come up and say,
‘Hey, what you did was wrong and I would appreciate it if you
didn’t do it anymore’? [¶] It’s not a reasonable interpretation.
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[¶] [Defendant] knows how things work, and [he] knew that
some act of violence, some act of retribution was in store for [the
victim].”
2. Trial Court’s Ruling
In denying the petition for resentencing, the trial court
stated that it would “be denying [defendant’s] request for relief
. . . because the record of conviction demonstrates [defendant] is
ineligible as a matter of law. [¶] . . . [¶] In order to be eligible
for relief [defendant] must show that he was convicted under
either a natural and probable consequence[] theory or felony
murder theory. Obviously[, defendant] was not convicted of
felony murder, nor was he convicted of the natural and probable
consequence theory. [¶] Even [the] defense concedes the felony
murder theory was not involved. Instead, the defense argued
that it was a natural and probable consequence[] theory case.
The biggest obstacle to this claim is the fact that the Court of
Appeal directly made a finding that this was not a murder based
on the natural and probable consequence theory. [¶] Contrary to
what [defense counsel argued], . . . the appellate opinion is . . .
one of the most important things, according to the most recent
cases, that the court should consider.” The court continued,
“There is no jury instruction on [the] natural and probable
consequence[] murder theory, and this is a deal breaker. It is not
possible that this jury could have convicted this defendant . . .
based on the natural and probable consequence theory. They did
[not] have enough information to do that. It’s impossible. [¶]
Moreover, a few [un]artful sentences in a prosecutor’s argument
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[do] not provide a sufficient basis for the defense position, and the
facts [do not] support it.”
The trial court went on to explain an alternative basis for
its ruling. “There is another aspect of this case which absolutely
precludes [defendant from obtaining] relief under section 1170.95
as a matter of law. [¶] . . . [¶] Since the appellate court actually
decided the issue of whether the natural and probable
consequence theory of murder applied in this case, this becomes
law of the case. [¶] Law of the case doctrine provides that a
decision of an appellate court on a legal issue must be followed in
all subsequent proceedings in the same case. [¶] . . . [¶] The
[appellate] court did rule on the legal issue, and this is, in fact, a
subsequent proceeding in the same case. I am bound by the
appellate court’s ruling.”
The trial court therefore denied the petition without
issuing an order to show cause.
B. Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘to amend 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).) In addition to substantively amending sections 188
and 189 . . . , Senate Bill 1437 added section 1170.95, which
provides a procedure for convicted murderers who could not be
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convicted under the law as amended to retroactively seek relief.
[Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
On October 5, 2021, the Governor signed Senate Bill
No. 775 which amended section 1170.95 to permit resentencing of
certain persons 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
. . . .” (§ 1170.95, subd. (a); see Sen. Bill No. 775 (2021–2022 Reg.
Sess.), as amended Oct. 5, 2021, p. 3; Stats. 2021, ch. 551, §§ 1–2.)
A petitioner who files a facially sufficient petition is entitled to
the appointment of counsel and the opportunity for briefing.
(§ 1170.95, subd. (c); see Lewis, supra, 11 Cal.5th at p. 957.)
When briefing has been completed, “the court shall hold a
hearing to determine whether the petitioner has made a prima
facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).) Within 60
days of issuance of the order to show cause, the trial court shall
hold a hearing “to determine whether the petitioner is entitled to
relief.” (§ 1170.95, subd. (d)(1) & (3).) “[T]he burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The
trial court acts as the finder of fact when determining whether
the prosecution has met its burden beyond a reasonable doubt.
(See Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile (2020)
10 Cal.5th 830, 855 [“section 1170.95 requires the superior court
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to determine on an individualized basis, after considering any
new or additional evidence offered by the parties, whether the
defendant is entitled to relief”].)
C. Analysis
The jury instructions on murder in defendant’s case did not
include instructions on felony murder or the natural and probable
consequences doctrine. The jury received instructions only on
direct aiding and abetting3 and the elements of malice murder.4
3 The trial court delivered CALJIC No. 3.01, which stated, “A
person aids and abets the commission of a crime when he or she:
[¶] (1) With knowledge of the unlawful purpose of the
perpetrator, and [¶] (2) With the intent or purpose of
committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice aids, promotes, encourages or
instigates the commission of the crime. [¶] A person who aids
and abets the commission of a crime need not be present at the
scene of the crime. [¶] Mere presence at the scene of a crime
which does not itself assist the commission of the crime does not
amount to aiding and abetting. [¶] Mere knowledge that a crime
is being committed and the failure to prevent it does not amount
to aiding and abetting.
4 The trial court delivered CALJIC No. 8.10, which stated,
“Defendant is accused in [c]ount 1 of having committed the crime
of murder, a violation of [s]ection 187 . . . . [¶] Every person who
unlawfully kills a human being with malice aforethought is guilty
of the crime of murder in violation of . . . [s]ection 187. [¶] In
order to prove this crime, each of the following elements must be
proved: [¶] 1. A human being was killed; [¶] 2. The killing was
unlawful; and [¶] 3. The killing was done with malice
aforethought.
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The jury was also instructed on first degree murder.5 And, as
noted above, the jury found defendant guilty of first degree
murder.
The court also delivered CALJIC No. 8.11, which stated
that “‘[m]alice’ may be either express or implied. [¶] Malice is
express when there is manifested an intention unlawfully to kill
a human being. [¶] Malice is implied when: [¶] 1. The killing
resulted from an intentional act; [¶] 2. The natural
consequences of the act are dangerous to human life; and [¶]
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life. [¶]
When it is shown that a killing resulted from the intentional
doing of an act with express or implied malice, no other mental
state need be shown to establish the mental state of malice
aforethought. [¶] The mental state constituting malice
aforethought does not necessarily require any ill will or hatred of
the person killed. [¶] The word ‘aforethought’ does not imply
deliberation or the lapse of considerable time. It only means that
the required mental state must precede rather than follow the
act.”
5 The trial court delivered CALJIC No. 8.20: “All murder
which is perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought is murder
of the first degree. [¶] The word ‘willful,’ as used in this
instruction, means intentional. [¶] The word ‘deliberate’ means
formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the
proposed course of action. The word ‘premeditated’ means
considered beforehand. [¶] If you find that the killing was
preceded and accompanied by a clear, deliberate intent on the
part of the defendant to kill, which was the result of deliberation
and premeditation, so that it must have been formed upon pre-
existing reflection and not under a sudden heat of passion or
13
Given the record, the jury necessarily found that defendant
was convicted as a direct aider and abettor and intended to kill
the victim. And, contrary to defendant’s assertion, there is no
probability that the jury could have convicted him under a
natural and probable consequences theory, particularly as there
was no instruction on that theory. Accordingly, defendant was
ineligible for resentencing as a matter of law. (See People v.
Cortes (2022) 75 Cal.App.5th 198, 205 [because the “jury was not
instructed on any theory of liability for murder or attempted
murder that required that malice be imputed to him” he was
“ineligible for resentencing under section 1170.95, subdivisions
(a) and (b)”]; People v. Daniel (2020) 57 Cal.App.5th 666, 677,
review dism.)
other condition precluding the idea of deliberation, it is murder of
the first degree. [¶] The law does not undertake to measure in
units of time the length of the period during which the thought
must be pondered before it can ripen into an intent to kill which
is truly deliberate and premeditated. The time will vary with
different individuals and under varying circumstances. [¶] The
true test is not the duration of time, but rather the extent of the
reflection. A cold, calculated judgment and decision may be
arrived at in a short period of time, but a mere unconsidered and
rash impulse, even though it includes an intent to kill, is not
deliberation and premeditation as will fix an unlawful killing as
murder of the first degree. [¶] To constitute a deliberate and
premeditated killing, the slayer must weigh and consider the
question of killing and the reasons for and against such a choice
and, having in mind the consequences, he decides to and does
kill.”
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V. DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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