P. v. Alvarez

Filed 4/22/20 P. v. Alvarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
EFREN ALVAREZ,
Defendant and Appellant.
B298813
(Los Angeles County
Super. Ct. No. A713630)
APPEAL from an order of the Superior Court of Los Angeles
County, Hayden A. Zacky, Judge. Affirmed.
Marta I. Stanton, by appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General , Susan Sullivan Pithey, Assistant Attorney
General, Idan Ivri and Blake Armstrong, Deputy Attorneys General, for
Plaintiff and Respondent.

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Efren Alvarez appeals from a summary denial of his petition
seeking vacation of his murder conviction and resentencing pursuant to
Penal Code section 1170.95.1 Alvarez contends the trial court erred in
determining he was ineligible for resentencing. Finding no error, we
affirm.
BACKGROUND
Alvarez attended a party in May 1989 at which he fired two shots
into one man’s upper torso, killing him. Alvarez pled no contest to
second degree murder and admitted having personally used a firearm in
the commission of the crime. (§§ 187, subd. (a), 12022.5, subd. (a).)
In 2019, Alvarez filed a form petition under newly enacted Senate
Bill No. 1437 (SB 1437) and section 1170.95 for vacation of his
conviction and resentencing. He checked pre-printed boxes stating, in
essence, that he had been charged with a murder which allowed the
prosecution to proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine. Alvarez stated he was
convicted of first- or second-degree murder pursuant to one of those
theories, but could not now be so convicted based on 2019 amendments
to sections 188 and 189 (i.e., SB 1437, and § 1170.95). Alvarez
requested that counsel be appointed to represent him.
Alvarez’s petition was summarily denied. In relevant part, the
trial court’s ruling states: “This matter was settled by way of plea
1 Statutory references are to the Penal Code.

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disposition; therefore, no jury trial occurred. As such, the court has
reviewed the probation report and the transcript from the date of
[Alvarez’s] plea, July 24, 1990. The facts from the probation report
indicate that [Alvarez] and fellow gang members attended a party . . . .
[Alvarez], along with . . . other gang members began assaulting other
party goers. [Alvarez] then fired two shots into the victim’s upper torso,
killing him. The plea transcript, along with other court records, show
that [Alvarez] pled no contest to second degree murder (Penal Code
§ 187(a)), and admitted that he personally used a firearm during the
commission of the murder (Penal Code § 12022.5(a)).
“Senate Bill 1437, enumerated in [section 1170.95], eliminated
both felony murder and the ‘natural and probable consequences’ theory
of murder in California. Several exceptions exist that exclude a
defendant from murder liability, if the prosecution was based on either
of those theories of liability. Those exceptions [include]: 1. Defendant
is the actual killer . . . . In this case, [Alvarez] pled no contest to second
degree murder (Penal Code § 187(a)), and admitted that he personally
used a firearm during the commission of the murder (Penal Code
§ 12022.5(a)). As such, he is the actual killer and is ineligible for
relief.”2
2 The record contains only the information and a minute order holding
appellant to answer. It does not include other documents on which the trial
court relied in denying the petition (i.e., the plea transcript, probation report
or “other court records”). The absence of these records does not preclude
disposition of this matter. Alvarez does not dispute that the trial court relied
on the records it recited. He has not requested augmentation of the appellate

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DISCUSSION
Alvarez contends the trial court erred in summarily denying his
petition for resentencing because he alleged a prima facie case for relief,
and the matter should be remanded with directions to the court to
appoint counsel.
Statutory Principles and the Standard of Review
“[SB 1437] was enacted to ‘amend the felony murder rule and the
natural and probable consequences doctrine, . . . 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 of the
underlying felony who acted with reckless indifference to human life.’
(Stats. 2018, ch. 1015, § 1, subd. (f).) [SB 1437] achieves these goals by
amending section 188 to require that a principal act with express or
implied malice and by amending section 189 to state that a person can
only be liable for felony murder if (1) the ‘person was the actual killer’;
(2) the person was an aider or abettor in the commission of murder in
the first degree; or (3) the ‘person was a major participant in the
underling felony and acted with reckless indifference to human life.’
(§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)” (People
v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted March 18,
2020, No. S260410 (Cornelius).)
record to include any additional or contrary evidence, nor does he deny he
was convicted of murder with the personal use of a firearm.

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“[SB 1437] added section 1170.95, which allows a ‘person
convicted of felony murder or murder under a natural and probable
consequences theory [to] file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to
be resentenced on any remaining counts.’ (§ 1170.95, subd. (a).) . . .
[A]ll three of the following conditions must be met: ‘(1) A complaint,
information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first or second degree murder . . . . [¶] (3)
The petitioner could not [now] be convicted of first or second degree
murder because of changes to [s]ection 188 or 189.’ (Ibid.) The petition
shall include a declaration stating that ‘he or she is eligible for relief
under this section’ based on the three requirements of subdivision (a).
(§ 1170.95, subd. (b)(1).)” (Cornelius, supra, 44 Cal.App.5th at p. 57.)
A petition for resentencing must include the superior court case
number and year of conviction, and whether there is a request for the
appointment of counsel. (§ 1170.95, subd. (b)(1).) If the petition
contains the requisite information, the trial court proceeds with its
analysis. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted March 18, 2020, No. S260493 (Verdugo).)
First, the court must “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).) As part of
the determination whether petitioner has satisfied his initial burden to

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demonstrate prima facie eligibility, the trial court initially screens the
petition for completeness. That initial review reasonably includes
looking beyond facially sufficient allegations in the resentencing
petition to consider “documents in the court file or otherwise part of the
record of conviction that are readily ascertainable.” (Verdugo, 44
Cal.App.5th at p. 329; see People v. Lewis (2020) 43 Cal.App.5th 1128,
1137–1138, review granted March 18, 2020, No. S260598 (Lewis);
Cornelius, supra, 44 Cal.App.5th at pp. 57–58.) As our colleagues in
Lewis explained, “sound policy” includes “[a]llowing the trial court to
consider its file and the record of conviction.” (Lewis, supra, at p. 1138.)
It would be a significant misuse of judicial resources to require the
court to appoint counsel and proceed with briefing and a hearing “‘based
solely on the allegations of the petition, which frequently are erroneous,
when even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief.’” (Ibid.) Once and only
if it determines basic eligibility requirements are satisfied, the trial
court must appoint counsel (if requested), order briefing and, if the
petitioner has made prima facie showing of entitlement to relief, issue
an order to show cause and conduct a hearing to determine whether to
vacate the murder conviction and resentence. (§ 1170.95, subds. (d)(1),
(d)(3); Verdugo, supra, at pp. 328–329; Lewis, supra, 43 Cal.App.5th at
p. 1140.)
Alvarez challenges the court’s summary denial of his petition.
The essence of his argument is that the trial court erred in looking
beyond the face of his petition to determine whether he established

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prima facie eligibility for relief under section 1170.95. A claim
regarding procedures employed by the trial court in conducting its
section 1170.95 review raises questions of law which we review de novo.
(See Greene v. Marin County Flood Control & Water Conservation Dist.
(2010) 49 Cal.4th 277, 287 [questions of law are reviewed de novo]; see
also Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [trial court’s
interpretation of § 1170.95 is reviewed de novo].)
The Court Did Not Err in Denying Alvarez’s Resentencing Petition
Alvarez’s contention that the trial court was required to accept his
petition at face value under section 1170.95 is wrong. Alvarez’s bare
assertions (absent evidentiary support), were insufficient to make the
requisite showing in the face of his conviction and other evidence
considered by the court. (See Lewis, supra, 43 Cal.App.5th at p. 1139.)
Indeed, Alvarez does not dispute that, on the merits and considering his
record of conviction, he could still be convicted of felony murder after
SB 1437.
As our colleagues explained in Verdugo, “the relevant statutory
language, viewed in context, makes plain the Legislature’s intent to
permit the sentencing court, before counsel must be appointed, to
examine readily available portions of the record of conviction to
determine whether a prima facie showing has been made that the
petitioner falls within the provisions of section 1170.95.” (Verdugo,
supra, 44 Cal.App.5th at p. 323; § 1170.95, subds. (a) and (c).)
Naturally, the trial court’s consideration of the adequacy of a

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resentencing petition requires it first to ascertain whether the petition
is facially sufficient. (See § 1170.95, subd. (b)(2).) The analysis does not
end there. Once it has performed an initial screening, the court will
proceed to “review the petition and determine if the petitioner has made
a prima facie showing that [he] falls within the provisions of [section
1170.95].” (§ 1170.95, subd. (c); Verdugo, supra, at p. 327.)
Here, the trial court reviewed the probation report and transcript
from the hearing at which Alvarez entered his plea. Those records
reveal Alvarez pled no contest to second degree murder and admitted
personally using a firearm in the commission of a murder. Alvarez
makes no argument, nor has he provided an offer of proof, let alone
evidence, that the trial court’s findings were based on an incorrect
review of the record or incomplete evidence. Mere allegations refuted
by the trial court’s review of an undisputed record will not support a
prima facie claim. (Cf. In re Serrano (1995) 10 Cal.4th 447, 456 [in
habeas proceeding, appellate court may make credibility determination
where court records directly contradict allegations of petition].)
Alvarez’s eligibility for relief under section 1170.95 cannot reasonably
be inferred from bare allegations in his petition which the trial court
found contradicted the court’s records.
The amendments to sections 188 and 189 would not affect
Alvarez’s conviction, in light of the court’s finding that the record
established he was the actual killer (§ 1170.95, subd. (a)(3)), and there
is no indication he was prosecuted under a felony-murder theory or a
natural and probable consequences theory. Alvarez does not contest

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this, and he has offered no evidence to support or suggest a contrary
conclusion. “Perhaps the most fundamental rule of appellate law is that
the judgment challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error.” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573; Denham v. Superior
Court (1970) 2 Cal.3d 557, 564 [judgments and orders are presumed
correct, and all intendments and presumptions are indulged to support
them on matters as to which the record is silent, i.e., error must be
affirmatively shown].)
The allegations of Alvarez’s resentencing petition were facially
sufficient, but its factual representations are false. Alvarez was
charged with first degree murder and personally using a firearm in the
commission of that crime. It is established that Alvarez was the actual
killer. The trial court properly screened and denied Alvarez’s petition.
Alvarez is not entitled to the protections of SB 1437, enacted to ensure
that liability for murder is not imposed on a person who did not act
with an intent to kill. (See People v. Martinez (2019) 31 Cal.App.5th
719, 723.) A petitioner is only eligible for relief under section 1170.95
only if he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189.” (§ 1170.95, subd. (a)(3),
italics added.) The trial court committed no error by summarily
denying the petition.
Finally, we reject Alvarez’s contention that he was entitled to
appointed counsel irrespective of the veracity of his allegations. Section
1170.95 mandates that counsel be appointed at the request of an

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indigent petitioner only after the court determines the section 1170.95
petition states a prima facie claim for relief. (See Lewis, supra, 43
Cal.App.5th at p. 1140; Verdugo, supra, 44 Cal.App.5th at pp. 332–333;
Cornelius, supra, 44 Cal.App.5th at p. 58 [rejecting claim that petitioner
was entitled to appointed counsel where he was indisputably ineligible
for relief under section 1170.95].)
DISPOSITION
The order denying the petition for resentencing pursuant to
section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.

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