P. v. Alves

Filed 7/27/20 P. v. Alves CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ALVES,
Defendant and Appellant.
B298708
Los Angeles County
Super. Ct. No. BA102783
APPEAL from an order of the Superior Court of Los
Angeles County, Craig E. Veals, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 14 --

2
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under Penal Code section 1170.95,1 a person
who was convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who
could not be convicted of murder following the enactment of SB
1437, may petition the sentencing court to vacate the conviction
and resentence on any remaining counts.
In 1997, a jury convicted appellant and defendant Robert
Alves of first degree murder. In 2019, Alves filed a petition for
recall and resentencing under section 1170.95. The trial court
denied the petition, concluding Alves was not entitled to relief, in
part because the jury found beyond a reasonable doubt he was
the actual killer. In support of its conclusion, the court
erroneously stated the jury found Alves personally used a firearm
during the commission of the murder. The court noted, however,
that even assuming the jury concluded Alves was not the actual
killer, he would still be ineligible for relief because the record
alternatively showed he aided and abetted the actual killer in the
commission of first degree murder while harboring the intent to
kill. On appeal, Alves argues the trial court erred by concluding
the court file showed he was the actual killer. He further argues
the court erred in denying his petition because he alleged
sufficient facts to state a prima facie claim, and the court should
have held a hearing where he was personally present and
1 All undesignated statutory references are to the Penal
Code.

-- 2 of 14 --

3
represented by appointed counsel. We disagree. Although it is
true the jury found Alves did not personally use a gun during the
commission of the murder, the trial court was correct in
concluding Alves was ineligible for relief. Nothing in the court file
suggests Alves’s murder conviction was based on a felony-murder
theory or the natural and probable consequences doctrine, the
categories of convictions warranting relief under SB 1437.
Because the court correctly concluded Alves was ineligible for
relief as a matter of law, the court was not required to hold an
additional hearing at which Alves or defense counsel was present.
We also reject Alves’s separate contention that the trial court
prejudicially abused its discretion by mistakenly stating the jury
found true the allegation that Alves personally used a firearm.
We affirm the denial of Alves’s section 1170.95 petition.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Alves and codefendant Anna Dominguez
with first degree murder (§ 187, subd. (a); count one) and
conspiracy to commit murder (§ 182, subd. (a)(1); count two).2 The
information alleged Alves and Dominguez personally used a
firearm in the commission of count one (§ 12022.5, subd. (a)(1)).
The information also alleged two special circumstances on count
one: (1) lying in wait (§ 190.2, subd. (a)(15)); and (2) the murder
was committed for financial gain (§ 190.2, subd. (a)(1)). With
respect to the conspiracy charge, the information alleged three
overt acts – the defendants or coconspirators: (1) obtained a
2 A third defendant, Ricardo B., was found guilty of murder
in a juvenile court proceeding.

-- 3 of 14 --

4
handgun; (2) drove to the scene; and (3) shot and killed victim
Frank Villareal.
On March 13, 1997, a jury convicted Alves of first degree
murder, found not true the allegation that he personally used a
firearm, and found true the two special circumstance allegations.
The jury convicted Alves of conspiracy to commit murder, found
not true the allegation that he personally used a firearm, and
found the three alleged overt acts true. The trial court sentenced
Alves to life in prison without the possibility of parole on count
one, and a concurrent term of life without the possibility of parole
on count two. In an opinion filed November 19, 1999, this court,
in case no. B115617, ordered each defendant’s concurrent
sentence on count two stayed under section 654, and affirmed the
convictions of both defendants in all other respects.
FACTUAL BACKGROUND
In the early morning hours of December 20, 1991, Frank
Villareal was murdered while he slept in his bed. The assailants
stood outside of his house and, through an open window, shot
Villareal three times in the head. Three individuals were
prosecuted for the murder: the victim’s wife, Anna Dominguez,
her lover, Robert Alves, and a third individual, Ricardo B., who
was 15 years old at the time and subject to proceedings in
juvenile court.
Before the murder, Alves was incarcerated with Daniel
Dominguez (“Daniel”), the brother of codefendant Anna
Dominguez (“Anna”). Anna wrote to her brother that her
husband, Villareal, was physically abusing her. Daniel told Alves
about the abuse and, in anger, suggested something should be

-- 4 of 14 --

5
done to Villareal. Alves volunteered to handle the matter and
began corresponding with Anna. After Alves was released, he and
several others drove to Anna’s house, where she told Alves and
Ricardo B. she would pay them to “take care of” Villareal.
Later, Villareal returned home. Alves hid in the backyard
with a companion and then rejoined the others who had traveled
with him to Anna’s house. Alves and Ricardo B. returned to the
house. Alves had a handgun and Ricardo B. had a baseball bat.
When they returned to the car, they told the group they had
removed the window screen in the bedroom, inserted the gun,
and shot Villareal. The next day, Alves returned to Anna’s house,
and she handed him something, possibly money. Within days,
Anna completed a Department of Motor Vehicles form
transferring a one-half interest in her car to Alves. When the
police first investigated the murder, Anna identified several
possible suspects besides herself and Alves, including the
Mexican Mafia and people who had previously fought with her
husband.
Alves violated parole and returned to state prison. Once
back, he told Daniel he had murdered Villareal by shooting him
three times in the back of the head. Daniel was surprised Alves
had carried through on his threat to kill Villareal. In August
1994, after both Daniel and Alves had been released from prison,
Daniel telephoned Villareal’s mother and told her Alves and
Anna had murdered her son. Villareal’s mother contacted the
police, who opened an investigation. As a result, criminal
proceedings ensued against Alves and Anna, as well as juvenile
proceedings against Ricardo B.

-- 5 of 14 --

6
PETITON FOR RESENTENCING
On February 15, 2019, Alves filed a petition for
resentencing under section 1170.95. In the petition, Alves
checked the boxes indicating an information was filed against
him that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine; at trial, he was convicted of first or second
degree murder under the felony-murder rule or the natural and
probable consequences doctrine; and he could not now be
convicted of first or second degree murder because of the changes
in homicide law. Alves requested that counsel be appointed on his
behalf.
On March 12, 2019, the trial court denied Alves’s petition.
In the denial order, the court recited the facts underlying Alves’s
conviction, stated the record established the jury convicted Alves
of murder based on the theory that he was the actual killer, and
that even assuming the jury convicted him on the theory that he
aided and abetted the actual killer, he would still be ineligible for
section 1170.95 relief.3 In reaching its conclusion, the court noted
Alves “and Ricardo approached the victim’s window together and
expressly for no purpose other than to kill him. They operated
pursuant to their prearranged plan whereby each of them, armed
with a deadly weapon, would approach the bedroom window of
the residence to remove the screen so that one of them could
shoot the victim.” (Italics in original.) The court further
3 In concluding the jury found beyond a reasonable doubt
Alves was the actual killer, the trial court erroneously stated the
jury found true that he personally used a firearm in the
commission of the murder.

-- 6 of 14 --

7
explained: “Thus, even in the extremely unlikely event Ricardo
was the actual shooter, [Alves] still remains answerable for the
crime as an aider and abettor notwithstanding the 2019
amendments to Penal Code [section] 189.”
At some point, though it is not clear when from the record,
the court appointed counsel for Alves. At a hearing held April 25,
2019, the court stated Alves’s attorney was unavailable, noted its
previous written order denying the section 1170.95 petition was
tentative, and that the tentative order would be discussed “at the
next hearing assuming all parties are requesting [a hearing].”
The final hearing occurred on May 22, 2019. Alves was not
present for the hearing and his attorney did not appear. The
court stated there had been ongoing discussion, and the
understanding was the court would issue its tentative ruling, and
if Alves’s attorney took exception with any of it, the parties would
meet to discuss it. The court noted defense counsel had not since
contacted the court, leading the court to infer defense counsel had
no objection and agreed with the court’s decision. The prosecutor
noted the court date had been set only in an abundance of caution
in case defense counsel wanted to object rather than submit. The
court ruled that its tentative order would stand.
Alves timely appealed.

-- 7 of 14 --

8
DISCUSSION
A. Governing Principles
1. SB 1437’s limitation of accomplice liability for
murder
The legislature enacted SB 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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies
during which death occurs generally will not be liable for murder
unless the person was (1) “the actual killer,” (2) a direct aider and
abettor in first degree murder, or (3) “a major participant in the
underlying felony [who] acted with reckless indifference to
human life[.]” (§ 189, subd. (e).)4
SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326 fn. omitted, rev.
granted, S260598, Mar. 18, 2020 (Verdugo).) Under new section
4 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)

-- 8 of 14 --

9
188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ [Citations.]”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev.
granted, S260598, Mar. 18, 2020.) “As a result, the natural and
probable consequences doctrine can no longer be used to support
a murder conviction. [Citations.]” (Ibid.)
2. Petitions to vacate prior convictions
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory,
and who could not be convicted of murder following SB 1437’s
changes to sections 188 and 189, to petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95
must include: “(A) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of the information is missing “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).)
“If the petition contains the required information, section
1170.95, subdivision (c), prescribes a two-step process for the
court to determine if” it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must

-- 9 of 14 --

10
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) The court then reviews the
petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions. (§ 1170.95, subd. (d)(3).)
B. Analysis
1. Alves’s arguments concerning the procedures
section 1170.95 affords
On appeal, Alves argues the trial court erred by denying
his section 1170.95 petition because he stated a prima facie case
for relief. He further argues that because he made a prima facie
showing, the trial court was required to conduct a hearing with

-- 10 of 14 --

11
defense counsel and Alves present, and the court erred by
summarily denying his petition without him or defense counsel
present. Alves’s claims regarding the procedures section 1170.95
affords raise questions of law subject to de novo review. (See In re
T.B. (2009) 172 Cal.App.4th 125, 129-130 [interpretation of
statute reviewed de novo].) Applying this standard, we reject
Alves’s contentions.
The trial court was allowed to conclude, as it did, at the
first stage of the section 1170.95 analysis, that Alves was
ineligible for relief as a matter of law. (Verdugo, supra, 44
Cal.App.5th at p. 329 [“The court’s role [at the preliminary
eligibility determination stage] is simply to decide whether the
petitioner is ineligible for relief as a matter of law . . . .”].) In
concluding Alves was ineligible for relief, the court was entitled
to evaluate the “documents in the court file or otherwise part of
the record of conviction that [were] readily ascertainable . . . .”
(Ibid.)5 Nothing in the court file suggested Alves was charged
with or convicted of murder on a felony-murder or natural and
probable consequences theory. Rather, as the trial court correctly
explained in its order, the facts of Alves’s murder conviction
necessarily rested on one of two theories: either he was the actual
killer or he directly aided and abetted the actual killer while
harboring the intent to kill. (See § 189, subd. (e) [actual killers
are still liable for murder, as are direct aider and abettors in first
5 We therefore reject the contention that the court, in
determining whether Alves successfully made an initial prima
facie showing of eligibility for relief, was required to accept as
true the factual allegations in his petition.

-- 11 of 14 --

12
degree murder who harbor the intent to kill].) The court was
therefore correct in concluding Alves was not entitled to relief.6
Finding no error in the court’s conclusion that Alves was
ineligible for relief, we also reject Alves’s argument that the court
erred by conducting an ex parte hearing without Alves or defense
counsel present. “If, as here, the court concludes the petitioner
has failed to make the initial prima facie showing required by
subdivision (c), counsel need not be appointed.” (Verdugo, supra,
44 Cal.App.5th at pp. 332-333.) The trial court went beyond what
was statutorily required by appointing counsel and allowing an
opportunity for objection or further hearing before adopting its
tentative ruling.7
6 In addition to the reasons stated by the trial court, Alves is
ineligible for section 1170.95 relief for a separate reason. By
finding Alves guilty of conspiracy to commit murder, the jury
necessarily found beyond a reasonable doubt that he intended to
kill Villareal. (People v. Swain (1996) 12 Cal.4th 593, 607 [“a
conviction of conspiracy to commit murder requires a finding of
intent to kill, and cannot be based on a theory of implied
malice.”]; see Stats. 2018, ch. 1015, § 1, (f) [one of the
Legislature’s purposes in enacting SB 1437 was to amend
homicide law “to ensure that murder liability is not imposed on a
person who . . . did not act with the intent to kill[.]”].) Because
the record shows the jury concluded beyond a reasonable doubt
Alves intended to kill Villareal, it is clear Alves falls outside the
group of defendants SB 1437 was intended to benefit.
7 We also reject Alves’s argument that he was
constitutionally entitled to a hearing at which he and counsel
were present. Senate Bill 1437 “constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights.
[Citation.]” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.)

-- 12 of 14 --

13
2. Alves’s abuse of discretion argument
Alves next argues the trial court abused its discretion by
partially basing its decision on the erroneous factual premise that
the jury found he personally used a firearm in the murder of
Villareal. Although it is true the trial court was incorrect in
stating the jury found Alves personally used a firearm, we
conclude the court was ultimately correct in denying Alves’s
1170.95 petition. (See People v. Smithey (1999) 20 Cal.4th 936,
972 [a decision that is legally correct will not be disturbed on
appeal merely because it is given for an incorrect reason].) As
discussed above, the court correctly concluded Alves was
ineligible for relief whether or not the jury concluded he was the
actual killer; nothing in the record suggests Alves was convicted
based on a felony-murder or natural and probable consequences
theory; and by finding Alves guilty of conspiracy to commit
murder, the jury necessarily concluded beyond a reasonable
doubt he intended to kill Villareal. For these reasons, we affirm
the trial court’s denial of Alves’s petition.

-- 13 of 14 --

14
DISPOSITION
The order denying Alves’s petition under section 1170.95 is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.

-- 14 of 14 --