People v. Alvarez CA2/3

Filed 3/27/23 P. v. Alvarez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B315485
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. B350976
v.
RAFAEL ALVAREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Kerry Bensinger, Judge. Reversed and
remanded with instructions.
John P. Dwyer, 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, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Rafael Alvarez appeals from the
superior court’s order denying his petition for resentencing under
Penal Code section 1172.6.1 In light of changes to the governing
statute that took effect after the trial court denied Alvarez’s
petition, the record before us does not conclusively establish that
Alvarez is ineligible for relief as a matter of law. Accordingly,
we reverse and remand for further proceedings.
BACKGROUND
1. The shooting, charges, verdict, and sentence
In his opening brief, Alvarez takes his summary of facts
from this court’s 2012 opinion affirming his conviction on direct
appeal, People v. Alvarez (May 24, 2012, B227279) [nonpub. opn.]
(Alvarez I).2
On the night of December 31, 2008, Wendy Cervantes went
to Amy Contreras’s apartment. They were planning to attend a
New Year’s Eve party with David Mendez. Cervantes had invited
her ex-boyfriend Christopher Ruiz to the party. (Alvarez I.)
1 References to statutes are to the Penal Code. Effective
June 30, 2022, former section 1170.95 was renumbered section
1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.)
2 While Alvarez recites “the prosecution case” as
“summarized” in Alvarez I, he does not concede those facts
are true. As Alvarez notes—and as we discuss below—the law
now prohibits trial courts from using the facts, or a substantial
evidence finding, from a prior appellate decision to conclude
beyond a reasonable doubt that a petitioner is not entitled to
resentencing under section 1172.6. We recite the facts from
Alvarez I here not for their truth but for the basis of Alvarez’s
conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 459-
460.)
2
Ruiz arrived at Contreras’s apartment in a Lexus; Alvarez
was driving. Cervantes told Ruiz she was waiting for Mendez
to arrive. Ruiz said he and Alvarez would come back. (Alvarez I.)
Mendez arrived at Contreras’s apartment shortly
thereafter in a Nissan. Contreras got into the Nissan while
Cervantes waited for Ruiz and Alvarez to return. Alvarez drove
up a few minutes later. Ruiz was now in the back seat with two
other men; a third man was sitting in the front passenger seat.
Cervantes approached the Lexus and told Ruiz to follow Mendez’s
Nissan because she didn’t know where the party was. Someone
in the Lexus asked if Mendez belonged to a gang. Cervantes
said he didn’t. (Alvarez I.)
Cervantes got back in the Nissan. Mendez stopped for a
red light and Alvarez pulled up right behind him. While they
were waiting for the light to change, Mendez asked if the men
in the Lexus were gang members. Contreras said Alvarez was
from Temple Street. Mendez said, “ ‘[W]e don’t get along with
Temple Street.’ ” Cervantes knew Mendez was planning to pick
up a friend who belonged to the Mara Salvatrucha gang, so she
got out and walked back to the Lexus. She asked Ruiz not to
“ ‘start any problems,’ ” because Mendez was going to pick up
“ ‘a homie from M.S.’ ” Ruiz replied they “ ‘weren’t going to start
any problems because it was New Year’s.’ ” (Alvarez I.)
Cervantes got back in the Nissan. Three or four seconds
later, Alvarez pulled the Lexus up right next to the driver’s side
of the Nissan and stopped. The man in the front passenger seat
of the Lexus pointed a gun out the window and fired four or five
shots, hitting Mendez twice. One of the shots was fatal. The
Lexus sped off. (Alvarez I.)
3
The People charged Alvarez with Mendez’s murder. They
alleged a principal used and discharged a firearm causing death
and that Alvarez committed the crime for the benefit of or in
association with a gang. The People also alleged Alvarez had
a prior strike for criminal threats. At trial, Alvarez contended
he was “merely . . . an innocent driver with no idea that one of
his passengers was planning to commit a drive-by shooting.”
(Alvarez I.)
The trial court instructed the jury on murder with malice
aforethought, degrees of murder, and direct aiding and abetting.
The court did not instruct the jury on felony murder or the
natural and probable consequences doctrine. The jury found
Alvarez not guilty of first degree murder but guilty of second
degree murder. The jury also found true the firearm and gang
allegations.
In a bench trial, the court found Alvarez’s prior strike true.
The trial court sentenced him to 60 years to life, calculated as
15 years to life for the murder, doubled because of the strike, plus
25 years for the firearm,3 plus five years for the serious felony
prior under section 667, subdivision (a)(1). On appeal, Alvarez
contended the evidence was insufficient to prove he aided and
abetted the murder. (Alvarez I.) Another panel of this court
rejected that contention. The court noted, “by pulling up
alongside the Nissan at the stoplight, Alvarez enabled the
gunman to get a clear shot at the victim”; he had a motive
for facilitating the crime (Mendez had some connection with
3 On direct appeal we ordered the abstract of judgment
corrected to reflect the sentence on the firearm enhancement was
25 years to life, not 25 years. (Alvarez I.)
4
Mara Salvatrucha); and his “immediate post-shooting conduct,
i.e., fleeing the crime scene at high speed, demonstrated
consciousness of guilt.” (Alvarez I.)
2. Alvarez’s resentencing petition
After Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437) took effect, Alvarez filed, on November 17,
2020, a petition for resentencing under section 1172.6. On a
downloadable form, Alvarez checked boxes stating an information
had been filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine; he had been
convicted at trial “of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine”; he “could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code §§ 188 and 189”;
and he “was convicted of 2nd degree murder under the natural
and probable consequences doctrine or under the 2nd degree
felony murder doctrine and [he] could not now be convicted of
murder because of changes to Penal Code § 188 . . . .” Alvarez
also checked the box asking the court to appoint counsel for him.
The trial court appointed counsel for Alvarez. On May 18,
2021, the district attorney filed a response to Alvarez’s petition.
The prosecution opposed the petition because Alvarez’s “jury
was not instructed under either felony murder or natural and
probable consequences theories of culpability” and he therefore
was “ineligible for relief” “[a]s a matter of law.” The prosecution
attached to its brief a copy of Alvarez I and copies of some of
the jury instructions given at Alvarez’s trial. The instructions
included CALCRIM No. 400 (“Aiding and Abetting: General
Principles”) and No. 401 (“Aiding and Abetting: Intended
5
Crimes”). CALCRIM No. 402 (“Natural and Probable
Consequences Doctrine (Target and Non-Target Offenses
Charged)”) and No. 403 (“Natural and Probable Consequences
(Only Non-Target Offense Charged)”) were not included.
On June 17, 2021, Alvarez—through counsel—filed a reply.
Alvarez “concede[d] that his jury was not instructed with the
CALCRIM felony murder series of instructions.” However,
Alvarez contended “his jury was instructed with the natural
and probable consequences theory of liability” in three
instructions: CALCRIM No. 520 (“Murder with Malice
Aforethought (Pen. Code, § 187)”), No. 521 (“Murder: Degrees
(Pen. Code, § 189)”), and No. 1402 (“Gang-Related Firearm
Enhancement (Pen. Code, § 12022.53(e))”).4 Alvarez argued
he therefore “was convicted of second degree murder on the
basis of imputed malice aforethought.”
Counsel appeared before the court on June 30, 2021. The
court had asked counsel to have read and be prepared to discuss
People v. Soto (2020) 51 Cal.App.5th 1043 (Soto). Defense counsel
began to talk about a “target offense” of “[s]hooting a firearm
from a motor vehicle at somebody outside the vehicle with the
intent to kill.” Counsel asserted Alvarez had to show only that
he could have been prosecuted under the natural and probable
consequences doctrine, not that he in fact was. The court
disagreed. Confusing this case with a felony murder case,
defense counsel argued that—as the jury had acquitted Alvarez
of first degree murder—“then the prosecution ha[d] to put on
4 The current versions of CALCRIM Nos. 520 and 521 have
slightly different titles.
6
evidence to prove that he was a major participant and that he
acted with reckless indifference to human life.”
In response to a question by the court, counsel conceded
that—even after Senate Bill 1473—a defendant could “still
be convicted of second degree murder . . . based upon implied
malice” (contrary to the argument he’d made in his brief). Citing
Soto, the court then asked, “So why wasn’t the jury instructed
properly in this case . . . as a direct aider and abettor with
implied malice?” Counsel said the facts were different in Soto.
Counsel argued that, to establish a prima facie case, Alvarez
had to show only “that there [was] a possibility that he could
succeed.” The court offered counsel an opportunity to brief Soto
but counsel declined.
On July 8, 2021, the trial court issued a Memorandum
of Decision denying Alvarez’s petition. The court took its
statement of facts from Alvarez I. As our Supreme Court had
not yet decided People v. Lewis (2021) 11 Cal.5th 952 (Lewis),
the court followed the two-step prima facie case procedure set
forth in People v. Verdugo (2020) 44 Cal.App.5th 320, 327-328.
While acknowledging the court could not engage in “ ‘factfinding
involving the weighing of evidence’ ” before issuing an order to
show cause, the court stated the second “ ‘stage of review’ ” for
a prima facie case—a determination of eligibility—“require[d]
an assessment of the evidence concerning the commission of
the petitioner’s offense.”
The court continued, “ ‘In this [second] stage, the trial court
must evaluate . . . whether the facts and circumstances of the
offense(s) prevent the petitioner from making “a prima facie
showing that he or she is entitled to relief.” ’ ” The court noted
“the Court of Appeal affirmed Alvarez’s second degree murder
7
conviction because he aided and abetted the murder.” Citing
cases, the court stated it could “ ‘look to the record of conviction,
including the court file and the opinion from the petitioner’s
original appeal from his or her conviction.’ ”
Moreover, the court said, “[T]he jury instructions confirm
that Alvarez was not convicted based upon the felony murder
rule or the natural and probable consequences doctrine.” The
court concluded, “Because Alvarez was convicted as an aider and
abettor and not based on the natural and probable consequences
doctrine or the felony murder rule, he is not eligible for relief.”
3. Alvarez’s appeal
Alvarez appealed and we appointed counsel to represent
him on appeal. After examining the record, counsel filed
an opening brief raising no issues and asking this court
independently to review the record under People v. Wende (1979)
25 Cal.3d 436.5 However, while Alvarez’s appeal was pending,
the Legislature passed Senate Bill No. 775 (Stats. 2021, ch. 551,
§ 2) (Senate Bill 775). That legislation made a number of
significant changes to the governing statute. Accordingly,
we vacated submission of the case and asked counsel to brief
the effect—if any—of Senate Bill 775 on this appeal.
DISCUSSION
1. Senate Bills 1437 and 775, and our standard of review
Senate Bill 1437 took effect on January 1, 2019. (See Stats.
2018, ch. 1015, § 4.) It limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
5 Counsel filed the brief under People v. Serrano (2012) 211
Cal.App.4th 496, but urged us to conduct an independent review
of the record for reasonably arguable issues, whether or not
Alvarez submitted a supplemental brief.
8
consequences doctrine as it relates to murder, to ensure a
person’s sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830,
842-843 (Gentile); Lewis, supra, 11 Cal.5th at pp. 957, 971.)
Effective January 1, 2022, Senate Bill 775 modified the law to
“expand the authorization to allow a person who was convicted
of murder under any theory under which malice is imputed to
a person based solely on that person’s participation in a crime . . .
to apply to have their sentence vacated and be resentenced.”
(Stats. 2021, ch. 551.)
To seek resentencing under section 1172.6, an offender
must file a petition in the sentencing court stating (as
relevant here), under penalty of perjury, (1) the People filed
an information that allowed the prosecution to proceed under a
theory of felony murder, the natural and probable consequences
doctrine, or another theory under which malice is imputed to
a person based solely on that person’s participation in a crime;
(2) the petitioner was convicted of murder; and (3) he could not
now be convicted of murder because of changes to section 188
or 189. (§ 1172.6, subd. (a)(1)-(3); see also id., subd. (b)(1)(A).)
If the petition contains all the required information,
the court must appoint counsel to represent the petitioner, if
requested; direct the prosecutor to file a response to the petition
and permit the petitioner to file a reply; and determine if the
petitioner has made a prima facie showing that he is entitled
to relief. (§ 1172.6, subds. (b)(3), (c); Lewis, supra, 11 Cal.5th
at pp. 959-960.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he falls
within the provisions of section 1172.6 and is entitled to relief,
9
the trial 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 [section
1172.6,] 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.” ’ ” (Ibid.) The court
then holds an evidentiary hearing at which the prosecution
has the burden of proving beyond a reasonable doubt that the
petitioner is ineligible for resentencing. (§ 1172.6, subd. (d)(3).)
Senate Bill 775 amended section 1172.6 in various
respects.6 Section 1172.6, subdivision (d)(3) now provides
the admission of evidence at the hearing “shall be governed by
the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed.” The statute
continues, “The court also may consider the procedural history
of the case recited in any prior appellate opinion.” Further, “The
prosecutor and the petitioner also may offer new or additional
6 Appellate courts in this district and elsewhere have held
the new amendments to section 1172.6 apply retroactively to
appeals from the denial of petitions not yet final as of January 1,
2022. (People v. Perez (2022) 78 Cal.App.5th 192, 204-205,
review granted Aug. 17, 2022, S275090; People v. Porter (2022)
73 Cal.App.5th 644, 652; People v. Montes (2021) 71 Cal.App.5th
1001, 1006-1007.)
10
evidence to meet their respective burdens. A finding that there
is substantial evidence to support a conviction for murder . . .
is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
We review de novo whether the trial court properly denied
Alvarez’s petition without issuing an order to show cause.
(People v. Coley (2022) 77 Cal.App.5th 539, 545.)
2. Alvarez is entitled to an evidentiary hearing
Alvarez contends “[t]he record of conviction does not
conclusively refute [his] allegation that his murder conviction
was based on imputed malice.” He also asserts “the trial court
denied the petition because the Court of Appeal held there was
substantial evidence to support Alvarez’s conviction as a direct
aider and abettor.” He notes that, after Senate Bill 775, this
sort of reliance on “substantial evidence” is impermissible.
The Attorney General concedes that—even though the
trial court never used the words “substantial evidence”—its
“alternate justification for finding [Alvarez] ineligible for relief
as a matter of law” was based on the Alvarez I court’s “finding
on direct appeal that there was substantial evidence to support
[Alvarez’s] conviction for second degree murder under a direct
aiding and abetting theory.” Accordingly, the Attorney General
says, he does not rely on that ground. However, the Attorney
General argues, “[t]he record of conviction conclusively
demonstrates that [Alvarez] is ineligible for relief as a matter
of law” because his jury was not instructed on felony murder,
the natural and probable consequences doctrine, or “any other
possible theory of imputed malice.”
Alvarez seems not to dispute that direct aiding and
abetting implied malice murder remains a valid theory of liability
11
for second degree murder. (People v. Vargas (2022) 84
Cal.App.5th 943, 954-955; People v. Schell (2022) 84 Cal.App.5th
437, 443-444; People v. Vizcarra (2022) 84 Cal.App.5th 377,
388-392; People v. Glukhoy (2022) 77 Cal.App.5th 576, 588-590,
review granted July 27, 2022, S274792; People v. Powell (2021)
63 Cal.App.5th 689, 711-714 (Powell). See Gentile, supra, 10
Cal.5th at p. 850 [aider and abettor who does not expressly
intend to aid a killing can still be convicted of second degree
murder if he knows his conduct endangers another’s life and
acts with conscious disregard for life]. Cf. People v. Superior
Court (Valenzuela) (2021) 73 Cal.App.5th 485, 499 [“an aider
and abettor who acts with implied malice can be guilty of murder
entirely apart from the natural and probable consequences
doctrine,” citing Gentile and Powell].)
Citing People v. Langi (2022) 73 Cal.App.5th 972 (Langi),
however, Alvarez asserts “the interplay of the instructions
on second-degree murder and aiding and abetting created
the possibility that the second-degree murder conviction
impermissibly rested on a finding of imputed malice rather
than on a finding that Alvarez personally harbored malice.”
The Attorney General responds that Langi is distinguishable,
and that there was no ambiguity in the jury instructions given
at Alvarez’s trial.
Langi may well be distinguishable. If the facts set forth
in Alvarez I are accurate, then this case is very different from
Langi. There, Langi and three other men beat and robbed the
victim. Someone in the group of four punched the victim, who
fell and hit his head, leading to his death. (Langi, supra, 73
Cal.App.5th at p. 975.) The appellate court noted “the record
12
as a whole [left] room to question” who “threw the fatal punch.”
(Id. at p. 980.)
The Langi court cited Powell. (Langi, supra, 73
Cal.App.5th at pp. 982-983.) In that case, defendants Powell
and Langlois, together with two other men, went into the victim’s
home and beat him in retaliation for beating their friend. The
victim died after being stabbed in the heart. The prosecution
contended Powell stabbed the victim and Langlois hit the victim
with a coffee table. (Powell, supra, 63 Cal.App.5th at pp. 691-
693, 696-697.) The court instructed the jury on direct aiding
and abetting as well as the natural and probable consequences
doctrine. (Id. at pp. 706-707.) The jury convicted both Powell
and Langlois of second degree murder. (Id. at pp. 705-706.)
In his closing argument in Powell, the prosecutor told
the jury Langlois could be guilty of murder even if he intended
only to participate in an assault, if “he went over there with
the intent to inflict violence.” (Powell, supra, 63 Cal.App.5th
at pp. 708-709.) The Powell court concluded, given the facts
of the case, the trial court should have “tailored” the jury
instructions, but its failure to do so was harmless. (Id. at p. 714.)
Here, by contrast, the prosecution contended Alvarez, only
seconds after hearing the victim was “ ‘going to pick up a homie
from M.S.,’ ” pulled the Lexus he was driving right up to the
driver’s side of the victim’s car and stopped. The man in the
front passenger seat of Alvarez’s car pointed a gun out the
window and fired four or five shots, killing the victim. In other
words, the life-endangering act here was not a physical assault
but the discharge of a firearm, at very close range, directly at the
driver of a car immediately next to the car Alvarez was driving.
Accordingly, these facts—if proved beyond a reasonable doubt—
13
could establish the elements of implied malice second degree
murder: that Alvarez (the aider and abettor), by his conduct,
aided the commission of the shooting, with knowledge the
perpetrator intended to commit the shooting, and the intent
to aid the perpetrator in the commission of the shooting, while
acting in conscious disregard for human life. (People v. Vizcarra,
supra, 84 Cal.App.5th at pp. 389-390, citing Powell, supra,
63 Cal.App.5th at p. 713.)
But here’s the problem: Neither the prosecutor nor
Alvarez’s counsel presented the trial court with trial transcripts
or any other materials except for the Alvarez I opinion and
the jury instructions. The trial court relied on the facts stated
in Alvarez I in summarily denying Alvarez’s petition. We do not
fault the trial court; it relied on the applicable law at the time,
in July of 2021.7 However, after Senate Bill 775, courts no longer
are permitted to rely on an appellate opinion’s factual summaries
and conclusions to determine a petitioner’s eligibility for
resentencing. As we noted, section 1172.6, subdivision (d)(3), as
revised, now permits the court to consider “the procedural history
of the case recited in any prior appellate opinion.” (§ 1172.6,
subd. (d)(3), italics added.) In including this language in Senate
Bill 775, the Legislature omitted any reference to the use of fact
summaries and conclusions of fact. Accordingly, at least one
published case has concluded this omission means trial courts
no longer should rely on fact summaries from appellate court
7 See, e.g., People v. Williams (2020) 57 Cal.App.5th 652,
661-663 [holding trial court could consider appellate court’s
factual summaries in an opinion in the context of section 1172.6
hearings because those summaries were “reliable hearsay”].
14
opinions at the evidentiary stage of a section 1172.6 proceeding.
(People v. Clements (2022) 75 Cal.App.5th 276, 292.)
We recognize this language, by its terms, applies to an
evidentiary hearing after the court has issued an order to show
cause. But that legislative guidance—coupled with the case
law emphasizing courts may not engage in factfinding or the
weighing of evidence at the prima facie stage8—leads us to err
on the side of caution here, and return the case to the trial court
for further proceedings.
Finally, we acknowledge that the Attorney General’s
argument based on the jury instructions in this case has
considerable merit. As we have said, the court did not instruct
Alvarez’s jury on felony murder or the natural and probable
consequences doctrine. The court gave the jury CALCRIM
No. 520, which required the People to prove Alvarez “committed
an act that caused the death of another person” and, when he
acted, “he had a state of mind called malice aforethought.” That
instruction further explained one acts with implied malice if
he “intentionally committed an act,” the “natural and probable
consequences of [which] were dangerous to human life,”9
8 In conducting its prima facie review, the trial court may
not engage in factfinding involving the weighing of evidence or
credibility determinations and must assume the truth of all facts
stated in the petition. (Lewis, supra, 11 Cal.5th at pp. 971-972;
People v. Flint (2022) 75 Cal.App.5th 607, 612.)
9 In his brief and at oral argument in the trial court,
Alvarez’s counsel seemed to be arguing the use of the phrase
“natural and probable consequences” in CALCRIM No. 520’s
definition of implied malice meant Alvarez was prosecuted under
the natural and probable consequences doctrine. Counsel was
mistaken. In Soto, supra, 51 Cal.App.5th 1043, our colleagues
15
knowing, when he acted, “his act was dangerous to human life,”
and nevertheless acting “deliberately” “with conscious disregard
for human life.” CALCRIM No. 401, which explained direct
aiding and abetting, told the jurors the People had to prove
the perpetrator (here, the man in the front passenger seat)
committed the crime (shooting Mendez at close range); Alvarez
knew the shooter intended to commit the crime (shooting
Mendez); “[b]efore or during the commission of the crime [the
shooting], [Alvarez] intended to aid and abet the [shooter] in
committing the [shooting]”; and Alvarez’s “words or conduct
did in fact aid and abet the [shooter’s] commission of the
[shooting].”10 If the facts summarized in Alvarez I are true, then
the “crime” for purposes of the aiding and abetting instruction
was murder, and only murder. No “tailoring” of the instructions
was necessary.
On the record before us, however, we cannot find Alvarez’s
ineligibility has been conclusively established as a matter of law.
in the Sixth District explained the difference between “natural
consequences” as used in the definition of implied malice, and the
natural and probable consequences doctrine. (Id. at p. 1056.) In
Soto, as here, the defendant was the driver; his fellow perpetrator
was the shooter. That case involved CALJIC Nos. 8.11 and 8.31,
the predecessors to CALCRIM Nos. 520, 402, and 403. (Soto,
at pp. 1048-1049.) The Soto court noted that, even though the
instructions included similar language regarding a “ ‘natural
consequence,’ ” they were “distinctly different concepts.” (Id. at
p. 1056.)
10 The Attorney General also relies on CALCRIM No. 521.
However, that instruction explains first degree murder. The jury
acquitted Alvarez of first degree murder.
16
The prima facie bar for section 1172.6 resentencing petitions
“ ‘was intentionally and correctly set very low.’ ” (Lewis, supra,
11 Cal.5th at p. 972.) Given the trial court’s reliance on the facts
recited in Alvarez I, together with defense counsel’s apparent
confusion about the difference between implied malice and
imputed malice, we conclude further proceedings in accordance
with Senate Bill 775’s changes to the statute are necessary.
DISPOSITION
The order is reversed and the matter is remanded to
the trial court. The court is to issue an order to show cause
and conduct an evidentiary hearing under section 1172.6,
subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
NGUYEN (KIM), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17