People v. Alvarez

1

THE PEOPLE, Plaintiff and Respondent, v. RAFAEL ALVAREZ, Defendant and Appellant.

B315485

California Court of Appeals, Second District, Third Division

March 27, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No B350976 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.

EGERTON, J.

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.)

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.)

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 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 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 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 ...