Filed 10/20/20 P. v. Alfonsoruiz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B303729
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA346845)
v.
JOSE ARMANDO
ALFONSORUIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Judith L. Champagne, Judge. Affirmed.
Daniel G. Koryn, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Jose Alfonsoruiz appeals the summary denial of
his petition for resentencing under Penal Code section 1170.95.1
Appellant’s appointed counsel filed a brief raising no issues and
asking us to review the record independently, and appellant has
filed a supplemental brief. Following our independent
examination of the entire record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende), we conclude that no arguable
issues exist. Accordingly, we affirm.
BACKGROUND
In 2010, a jury convicted appellant of three counts of
aggravated sexual assault of a child (§ 269, subd. (a)(1)), three
counts of forcible rape (§ 261, subd. (a)(2)), three counts of forcible
oral copulation (§ 288a, subd. (c)(2)), one count of forcible lewd act
upon a child (§ 288, subd. (b)(1)), and one lesser included offense
of lewd act upon a child aged 14 or 15 (§ 288, subd. (c)(1)). The
jury acquitted appellant of two counts of forcible rape (§ 261,
subd. (a)(2)) and one count of forcible oral copulation (§ 288a,
subd. (c)(2)). The jury was unable to reach a verdict on three
counts of forcible oral copulation (§ 288a, subd. (c)(2)), two counts
of forcible rape (§ 261, subd. (a)(2)), and one count of assault with
a deadly weapon (§ 245, subd. (a)(1)); the trial court declared a
mistrial as to those counts and dismissed them at the request of
the prosecution. The trial court sentenced appellant to three
indeterminate terms of 15 years to life, plus an aggregate
determinate term of 59 years. We affirmed appellant’s
convictions and sentence on direct appeal. (People v. Alfonsoruiz
(Sept. 27, 2011, No. B223811) [nonpub. opn.].)
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
On October 30, 2019, appellant filed a form petition for
resentencing under section 1170.95. He checked boxes affirming
that he was charged with and convicted of murder and asserting
that he could not now be convicted of murder due to recent
changes made to sections 188 and 189. Appellant also checked a
box requesting the appointment of counsel.
Appellant attached numerous documents to his petition.
Among them were excerpts of minute orders from his pretrial and
trial proceedings, his legal status summary, copies of sections
1381 and 1382,2 a property receipt issued in connection with
appellant’s September 22, 2008 arrest, and a single page of what
appears to be a treatise addressing parole. Appellant also
attached several newspaper articles and case and prison
documents pertaining to other persons
On December 30, 2019, the trial court summarily denied
the petition without appointing counsel for appellant. The trial
court’s minute order states: “The court finds the defendant was
not convicted of murder and, therefore, is ineligible for relief
under Penal Code section 1170.95. The petition is summarily
denied.” Appellant timely filed a notice of appeal on January 13,
2020.
DISCUSSION
On June 26, 2020, appellant’s appointed appellate counsel
filed an opening brief raising no issues and asking us to review
the record independently. (Wende, supra, 25 Cal.3d 436).
Counsel advised appellant of his right to file a supplemental
brief, and we sent appellant a letter containing the same
advisement on June 30, 2020.
2Both sections are in the chapter titled “Dismissal of the
Action for Want of Prosecution or Otherwise.”
3
On July 27, 2020, appellant filed a two-page handwritten
brief asserting that police, prosecutorial, and judicial misconduct
occurred during his pretrial and trial proceedings. Specifically,
he contends that police failed to produce an arrest warrant, did
not read him his Miranda3 rights or provide him with counsel,
and “falsified allegations just to have charges” due to the absence
of a “DNA expert.” Appellant contends the prosecutor committed
misconduct by filing “multiple charges and same & similar
offense PC 667.6 which never occurred and no exculpatory
material evidence but argued hearsay and false evidence without
presenting DNA expert doctor’s [sic] during jury trial with rape
and aggravated charges.” Finally, he contends the court engaged
in “judicial abuse” because “sentencing is unprecedented 104 yrs
to life in prison with multiple offense and same & similar the
judge know’s [sic] that this was a mistrial deadlock with same &
similar offenses, but never had a chance for another jury trial but
sentenced by the court own motion is a prejudice [sic].”
Appellant attached to his brief an amicus brief the Attorney
General filed in a different case, several of the documents filed
with his petition, and copies of sections 189 and 680.4 In
handwritten notations to these documents, appellant asserts that
the bail in his case was “unprecedented” and unfair. He further
suggests that the double jeopardy statute was violated because
he was convicted of “same and similar offenses,” and that he
should have received a second jury trial due to the mistried
counts.
3Miranda v. Arizona (1966) 384 U.S. 436.
4Section 189 sets forth the degrees of murder. Section 680
is the “Sexual Assault Victims’ DNA Bill of Rights.”
4
Appellant’s brief explicitly states that he is attempting to
use this appeal as a vehicle to “challenge this wrongful
conviction.” However, the order at issue in this appeal is the
order denying his section 1170.95 petition, not the long-final
judgment of conviction. Appellant’s arguments do not address
the relevant ruling; instead, they focus on issues outside the
scope of this appeal. “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.) Appellant has not carried that burden
here. His challenges to the validity of his underlying conviction
do not establish that he was entitled to resentencing under
section 1170.95. (See People v. Nguyen (2020) 53 Cal.App.5th
1154, ___ (2020 WL 5015289 at pp. *8-*9).)
The trial court correctly concluded that appellant was
ineligible for relief under section 1170.95 as a matter of law.
“By its terms, section 1170.95 authorizes only a person who was
‘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 . . . .’ ([§ 1170.95], subd. (a), italics added.)”
(People v. Flores (2020) 44 Cal.App.5th 985, 992-993.) “Through
its repeated and exclusive references to murder, the plain
language of section 1170.95 limits relief only to qualifying
persons who were convicted of murder. 1170.95 does not
mention, and thus does not provide relief to, persons convicted of”
other crimes. (Id. at p. 993; see also People v. Cervantes (2020) 44
Cal.App.5th 884, 887 [“The plain language of the statute is
explicit; its scope is limited to murder convictions.”].) The minute
5
orders appellant submitted with his petition showed that he was
not convicted of murder despite his representations to the
contrary.5 The trial court therefore properly denied his petition
without appointing counsel or holding further proceedings.
(People v. Edwards (2020) 48 Cal.App.5th 666, 674-675.)
We have examined the entire record and are satisfied that
no arguable issues exist and that appellant has, by virtue of
counsel’s compliance with the Wende procedure and our review of
the record, received adequate and effective appellate review of
the order. (Smith v. Robbins (2000) 528 U.S. 259, 278.)
DISPOSITION
The order denying appellant’s petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J. CURREY, J.
5In one of the attachments to his supplemental brief,
appellant underlines the portion of section 189 stating that a
killing committed during the perpetration or attempted
perpetration of certain enumerated crimes is murder of the first
degree. Although appellant was convicted of several crimes listed
there, including rape and violations of section 288 and 288a,
there is no indication that he killed anyone during the
commission of those crimes. He thus did not commit murder of
any degree.
6