P. v. Alvizo

Filed 1/22/21 P. v. Alvizo CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ISAAC ALVIZO,
Defendant and Appellant.
G057977
(Super. Ct. No. 06WF2818)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant David Isaac Alvizo challenges the summary denial of his petition
for resentencing under Senate Bill No. 1437 (SB 1437). He alleges the denial was
erroneous because SB 1437 restricted the scope of the felony murder rule, and he was
convicted of “first degree murder with felony murder special circumstances.” Appellant
was convicted of first degree murder. However, he was not convicted of, or even charged
with, the felony murder special circumstance. Nor did the prosecution rely on the felony
murder rule or the natural and probable consequences doctrine in securing his murder
conviction. Because SB 1437 only applies to murderers who were convicted under one
of those particular theories of liability, the trial court properly denied appellant’s petition
for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, appellant and his codefendant Greg Garcia fatally shot a rival gang
member in Garden Grove. At trial, the evidence was inconclusive as to whether it was
appellant or Garcia who actually killed the victim. However, the prosecutor argued that
did not matter in terms of their culpability because they were backing each other up and
helping each other out during the shooting. Relying on direct aiding and abetting
principles – not the natural and probable consequences theory of aiding and abetting – the
prosecutor argued that regardless of who fired the fatal shot, appellant and Garcia were
equally liable for first degree murder.
The jury agreed. It convicted appellant of that offense, as well as street
terrorism, and found he acted for the benefit of a criminal street gang and vicariously
discharged a firearm. (Pen. Code, §§ 187, subd. (a); 189, subd. (a); 186.22, subds. (a),
(b); 12022.53, subds. (d), (e).)1 It also found true a special circumstance allegation he
intentionally committed the murder to further the activities of his gang. (§ 190.2, subd.
(a)(22).) Appellant was sentenced to life in prison without parole for his crimes.
1 All further statutory references are to the Penal Code.

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On appeal, we affirmed appellant’s convictions and remanded the matter
for resentencing. (People v. Garcia, et al. (Feb. 11, 2010, G041032) [nonpub. opn.].)
The trial court subsequently modified appellant’s sentence and imposed a prison term of
50 years to life.
In 2019, appellant petitioned for relief pursuant to SB 1437. His petition
alleged he was eligible for resentencing because he was convicted of murder under the
felony murder rule or the natural and probable consequences doctrine, and if he were
tried today, he could not be convicted of murder in light of the changes SB 1437 made to
that offense.
The trial court summarily denied appellant’s petition, without appointing
him an attorney or holding a hearing. Based on its review of the charging documents,
jury instructions and verdict forms in appellant’s underlying case, the court determined
he was ineligible for sentencing because he was not in fact convicted of murder under the
felony murder rule or the natural and probable consequences doctrine.
DISCUSSION
Appellant contends the trial court erred in denying his petition in summary
fashion, and the matter should be remanded for the trial court to more fully consider his
petition. We disagree and affirm the court’s decision.
SB 1437 restricted the scope of the felony murder rule and eliminated the
natural and probable consequences in murder cases. (See People v. Lamoureux (2019) 42
Cal.App.5th 241, 248-249.) SB 1437 also added section 1170.95 to the Penal Code.
That section permits a person convicted of murder to petition for resentencing if his
conviction was based on the felony murder rule or the natural and probable consequences
doctrine, and he could not have been convicted of murder in light of the changes ushered
in by SB 1437. (§ 1170.95, subd. (a).)
In his opening brief, appellant alleged the trial court erred in denying his
petition for resentencing because he was convicted of “first degree murder with felony

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murder special circumstances.” However, as set forth above, there was only one special
circumstance alleged in this case, and that was the gang-related special circumstance
allegation the jury ultimately found to be true. At no point was appellant ever charged
with the felony murder special circumstance. Nor did the prosecution rely on the felony
murder rule or the natural and probable consequences doctrine in securing his murder
conviction. Therefore, appellant does not meet the threshold requirements for
resentencing under SB 1437.
Appellant begs to differ. In his reply brief, he admits he was not convicted
of murder under the felony murder rule. However, he insists that doesn’t matter because
in his petition for resentencing, he alleged he was convicted under that rule, and therefore
the trial court erred in denying his petition without appointing him an attorney and
conducting a hearing on the merits of his claim. In other words, appellant claims
regardless of the basis of his actual conviction, he was entitled to counsel and a hearing
because, on their face, his erroneous allegations were sufficient to support a prima facie
case for relief.
The claim is not well taken. As our colleagues in the Second Appellate
District recently explained, the first step in determining whether a defendant is eligible
for resentencing under SB 1437 is “akin to the procedure employed in a Proposition 36 or
Proposition 47 context. [Citations.]” (People v. Tarkington (2020) 49 Cal.App.5th 892,
897-898, rev. granted Aug. 12, 2020, S263219 (Tarkington).) That is, “[t]he court must
determine, based upon its review of readily ascertainable information in the record of
conviction and the court file, whether the petitioner is statutorily eligible for relief as a
matter of law[.]” (Id. at p. 898.) If not, the court can dismiss the petition outright
without appointing counsel for the defendant. (Ibid.)
That is precisely what the trial court did in this case. Based on its review of
the record of conviction in appellant’s underlying case, the court properly determined
appellant was statutorily ineligible for resentencing because his murder conviction was

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not based on the felony murder rule or the natural and probable consequences doctrine.
Therefore, the court was not required to appoint appellant counsel or conduct a hearing
on his eligibility for resentencing.
In coming to this conclusion, we recognize the Supreme Court granted
review in Tarkington and will ultimately have the last word on what is required to
establish a prima facie case for relief under SB 1437. However, we share the view
expressed by other courts that “‘[i]t would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even appointment of counsel based
solely on the allegations of the petition, which frequently are erroneous, when [as here]
even a cursory review of the court file would show as a matter of law that the petitioner is
not eligible for relief.’ . . . [Citation.]” (People v. Lewis (2020) 43 Cal.App.5th 1128,
1138, rev. granted Mar. 18, 2020, S260598; accord People v. Verdugo (2020) 44
Cal.App.5th 320, rev. granted Mar. 18, 2020, S260493; People v. Cornelius (2020) 44
Cal.App.5th 54, rev. granted Mar. 18, 2020, S260410.)
DISPOSITION
The order denying appellant’s petition for resentencing is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.

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