People v. Alvarado CA2/7

Filed 2/22/21 P. v. Alvarado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

THE PEOPLE, B298355

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA103415)
v.

ALEJANDRO ALVARADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, James D. Otto, Judge. Affirmed.
Tanya Dellaca, 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
Assistant Attorney General, and Michael R. Johnsen and Yun K.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Alejandro Alvarado appeals his convictions for murder and
attempted murder. He argues the trial erred in refusing to
instruct the jury on heat of passion, both to reduce murder to
manslaughter and to reduce first degree murder to second degree
murder. He also argues his trial counsel provided ineffective
assistance by failing to ask the trial court at sentencing to impose
a lesser included firearm enhancement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Someone Fires Shots at the Empty Home of
Alvarado’s Friends
Kaleah Smith, Zariah McCollum, and Zaria Tate lived
together in Joyce Bryant’s house. Smith lived in a back room
with her baby son. Tate was Bryant’s daughter and McCollum’s
childhood friend. Alvarado was a friend of McCollum and
occasionally visited the house.
One day McCollum’s cousin, Mariah Johnson, was at the
Bryant house and received messages from Jason Beaulieu on
social media. McCollum described her relationship with Beaulieu
as “something close to friends with benefits”; they “started off as
friends” and then “ended up having sexual intercourse.”
Beaulieu’s message to Johnson, which McCollum read, stated
that he, Beaulieu, wanted to put a bullet in her, Johnson’s, head.
At some point after Beaulieu sent this message, McCollum,
Smith, Tate, and Johnson all left the house.
The women (minus Johnson) returned in the early evening
between 6:30 p.m. and 7:00 p.m. and noticed debris on the floor of
the house. They found eight bullet holes in the house and a shell

2
on the floor, and concluded someone had fired shots into the
home. Smith was upset because her infant son, who was not
home at the time, could have been injured had he been there.
McCollum, Smith, and Tate, assuming Beaulieu “had something
to do with it” because of the messages he sent Johnson earlier
that day, walked to a nearby housing project to confront him.

B. Smith Accuses Beaulieu of Shooting at the House
McCollum, Smith, and Tate found Beaulieu and his friend
Jacob James at the housing project. Smith was angry because
she thought Beaulieu was the one who had fired the shots into
the house. Smith questioned Beaulieu loudly and aggressively,
asking him repeatedly whether he fired shots into the Bryant
house and saying her son could have been hit by one of the
bullets. After screaming and yelling at Beaulieu, Smith began to
hit him. Beaulieu did not fight back, and James ran away.
Eventually Smith, McCollum, and Tate returned to the Bryant
house with their friend Devontae Reynolds, who had been “in the
crowd” watching the incident at the housing project.

C. Alvarado Shoots at Beaulieu and James
McCollum left the Bryant house and began walking
through the neighborhood. The others went to look for her in two
cars, one driven by Reynolds (who drove Smith and Tate) and one
driven by an individual identified only as “Poppy” (who saw
McCollum walking and stopped to pick her up). The two cars
“ended up” on a street near the housing project, where at
approximately 10:00 p.m. the group encountered Alvarado.
Smith told Alvarado “exactly what happened as to the house
being shot up,” and Alvarado got into Poppy’s car with McCollum.

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The group met back at the Bryant house, although Reynolds left
with Smith for a few minutes.
When Reynolds and Smith returned, McCollum and
Alvarado got into Reynolds’s car to drive back to the housing
project. Reynolds was driving, Smith was in the front passenger
seat, McCollum was in the back seat behind Reynolds, and
Alvarado was behind Smith.1 En route, McCollum saw Reynolds
pull out a gun, which “eventually ended up” in Smith’s hands.
The group found Beaulieu and James sitting on some stairs
in front of a building. Reynolds drove the car around the back of
the project, while Smith and Alvarado debated who was going to
shoot Beaulieu. Smith said she wanted to shoot Beaulieu
because he “shot up the house.” She said that Beaulieu deserved
to be shot “because her son could have been in the house and . . .
could have easily caught one of those bullets that went flying
inside of the house” and that she wanted to make sure there was
not going to be a “next time.” Alvarado told Smith he wanted to
shoot Beaulieu for her. Eventually, Alvarado “won that
argument,” and they switched seats, with Alvarado moving to the
front seat, where there was a bigger window and he would have a
better shot at Beaulieu, and Smith going to the back seat.
Reynolds drove back to the housing project, waited until a
car passed and “it was clear,” and slowly approached the stairs
where Beaulieu and James were sitting. It was approximately
11:00 p.m. Alvarado rolled down the window and said to Smith,
“This is for your son.” He told McCollum and Smith to duck, held
the gun in both hands, and began shooting. Smith got up and
said, “I want to see this.” From her position in the car, McCollum

1 The significance of the seating in the car will become
apparent.

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saw Alvarado’s hand holding the gun, saw “fire coming out of the
gun,” and heard five or six shots.
When Alvarado stopped shooting, Reynolds accelerated and
drove away. A witness heard screeching and the sound of tires
burning rubber. Alvarado was excited and said he thought he
shot both Beaulieu and James. Alvarado said, “I got him for
you,” which McCollum understood meant he was saying to Smith
that he shot Beaulieu for the safety of Smith and her son.
The four friends went to Reynolds’s house, where Reynolds
said he was going to get rid of the gun. When he returned to the
car, they went to a gas station to smoke marijuana. Smith said
that they could never discuss what happened and that “this has
to stay between us.” They went back to the housing project to
make it seem as though they did not know about, and were not
involved in, the shooting. McCollum saw Beaulieu’s body at the
crime scene.
McCollum, Smith, and Alvarado returned to the Bryant
house. Alvarado told Bryant that Beaulieu was “no más,” made a
gesture to imitate a gun and said “pow,” and moved his hand
across his neck to indicate Beaulieu was dead. Alvarado said
that “the girls wouldn’t do it, so he did it” and that he got rid of
the gun. Smith told Bryant she would not have to worry anymore
about having shots fired at her house. Smith, McCollum, and
Alvarado again vowed not to talk about the shooting. Smith
praised Alvarado and called him her man, her hero, and her
“Trojan.” She took Alvarado’s hand, led him to her room, and
said that, if he ever needed anything, he could rely on her
because he had done her a favor. After the shooting, Alvarado
and Smith “became boyfriend and girlfriend,” and Alvarado

5
moved in with Smith until a few weeks before they were
arrested.2
When the police arrived Beaulieu was not breathing.
Beaulieu died from a gunshot wound to the head. He also
suffered a gunshot wound to the left leg. James left the scene
before the police arrived.

D. Alvarado, Smith, Reynolds, and McCollum Are
Arrested, and Alvarado and Reynolds Make
Incriminating Statements to Jailhouse Informants
Several months after the shooting, the police arrested
Alvarado, Smith, and Reynolds and searched Reynolds’s car and
residence. McCollum came with her attorney to the police
department to meet with a detective and a prosecutor for a
recorded interview, called a “proffer session,” in which she
recounted the details of how Alvarado shot Beaulieu.
The police also recorded a jailhouse conversation between
Alvarado and a police informant posing as another inmate.
Alvarado admitted that he killed Beaulieu, that Smith, Reynolds,
and McCollum were involved, and that Reynolds was the driver.

2 Most of the facts of the shooting came from McCollum, who
testified at trial after she agreed to cooperate, pleaded guilty to
murder, and received a prison sentence of 11 years. She
originally lied to detectives investigating the shooting, but
decided to tell the truth because she felt “what was done in the
dark eventually comes to the light,” she “wanted justice done”
and knew what they did was wrong, and “it’s not up to us to
decide when it’s time for somebody to die.” She also felt there
were “only two things coming [her] way . . . death or life in
prison.” Reynolds exercised his rights under the Fifth
Amendment and did not testify.

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Alvarado explained that Beaulieu had fired shots into the house
where Smith lived. Alvarado said that he shot at Beaulieu six
times (“in the heart, in the chest, everything”) and that he saw
“the whole thing when he dropped.” In a separate recorded
jailhouse conversation, Reynolds admitted they used his car and
his gun to kill Beaulieu. Reynolds said that the shooter,
Alvarado, was in the front passenger seat and that Smith and
another woman were in the back seat.

E. A Jury Convicts Alvarado of Murder and Attempted
Murder, and the Trial Court Sentences Him
The People charged Alvarado with one count of murder and
one count of attempted murder. The People also alleged Alvarado
personally used a firearm within the meaning of Penal Code
section 12022.53, subdivision (b),3 personally and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivision (c), and personally and intentionally discharged a
firearm causing great bodily injury or death within the meaning
of section 12022.53, subdivision (d).4 The People also alleged
Alvarado committed the crimes for the benefit of, at the direction
of, or in association with a criminal street gang with the specific
intent to promote, further, or assist in criminal conduct by gang
members, within the meaning of section 186.22, subdivision (b).
Trial counsel for Alvarado asked the court to give
CALCRIM No. 570, voluntary manslaughter based on heat of

3 Statutory references are to the Penal Code.
4 The significance of the fact the People alleged all three
firearm enhancements under section 12022.53 will become
apparent.

7
passion, CALCRIM No. 603, attempted voluntary manslaughter
based on heat of passion, and CALCRIM No. 522, effect of
provocation on the degree of murder. When the court pointed out
that counsel for Alvarado was referring to Smith’s passion, not
Alvarado’s, counsel for Alvarado responded, “Yes, but it
transfixes the people around her, . . . [w]hich makes them
passionate.” Counsel asserted that Smith’s passion was
“infectious to” Alvarado and that, because there was “constant
movement without any break” and the “passion [was] still
roaring,” there was no “cool-off period.” The court refused to give
CALCRIM Nos. 570 and 603 stating: “I don’t believe this is a
heat of passion case. I don’t believe voluntary manslaughter is
appropriate.” The court also refused to give CALCRIM No. 522,
stating: “I don’t see there being any provocation. There’s
certainly no provocation by the victim. You’re talking about
somehow encouragement [by an] accomplice in the crime. That’s
not provocation.”
The jury convicted Alvarado of first degree murder and
attempted willful, deliberate, and premeditated murder, and
found true the firearm enhancement under section 12022.53,
subdivision (d), for the murder conviction, and found true the
firearm enhancement under section 12022.53, subdivision (c), for
the attempted murder conviction. The jury found the gang
allegations not true.
The trial court sentenced Alvarado on the murder
conviction to a prison term of 25 years to life, plus 25 years to life
for the firearm enhancement under section 12022.53,
subdivision (d). The court sentenced Alvarado on the attempted
murder conviction to a consecutive term of life in prison, plus 20

8
years for the firearm enhancement under section 12022.53,
subdivision (c). Alvarado timely appealed.

DISCUSSION

A. The Trial Court Did Not Err in Refusing To Instruct
the Jury on Heat of Passion
Alvarado argues the trial court erred in refusing to instruct
the jury on the lesser included offenses of voluntary
manslaughter and attempted voluntary manslaughter based on
heat of passion (CALCRIM Nos. 570 and 603) and in refusing to
instruct the jury that provocation may reduce the degree of
murder from first degree to second degree (CALCRIM No. 522).
Alvarado argues that Smith had an emotional reaction to
discovering shots had been fired into the house where she lived,
that her infant son could have been killed, and that “her passion
transferred to the people around her, including” Alvarado, who in
turn “was acting in the heat of passion when he fired the gun at
Beaulieu and James.” Alvarado contends his “emotional reaction
to his girlfriend, her infant and himself being placed at risk of
being shot” incited him “to homicidal conduct in the heat of
passion.”

1. Applicable Law
“‘Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.’” (People v. Morales (2020)
10 Cal.5th 76, 88.) “Voluntary manslaughter, a lesser included
offense of murder, is defined as the unlawful killing of a human
being without malice. [Citations.] Manslaughter instructions are
warranted when substantial evidence exists to support a jury’s
determination that the killing was committed in the heat of
passion and thus does not constitute a first degree murder.”

9
(People v. Vargas (2020) 9 Cal.5th 793, 827; see People v. Smith
(2018) 4 Cal.5th 1134, 1163.)
“‘Heat of passion is a mental state that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter.’ [Citation.] Heat of passion killing is distinct
from malice murder because thought in some form is necessary
‘to form either an intent to kill or a conscious disregard for
human life.’ [Citation.] A heat of passion killing . . . is one
caused by an unconsidered reaction to provocation rather than
the result of rational thought. If reason ‘“‘was obscured or
disturbed by passion’”’ to so great a degree that an ordinary
person would ‘“‘act rashly and without deliberation and
reflection,’”’ . . . that killing arose from ‘“‘passion rather than from
judgment.’”’” (People v. Vargas, supra, 9 Cal.5th at pp. 827-828;
see People v. Soto (2018) 4 Cal.5th 968, 974; People v. Nelson
(2016) 1 Cal.5th 513, 539; People v. Avila (2009) 46 Cal.4th 680,
705.) “While some measure of thought is required to form either
an intent to kill or a conscious disregard for human life, a person
who acts without reflection in response to adequate provocation
does not act with malice.” (People v. Beltran (2013) 56 Cal.4th
935, 942.)
“‘The heat of passion requirement for manslaughter has
both an objective and a subjective component. [Citation.] The
defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat
of passion are also viewed objectively . . . . “[T]his heat of passion
must be such a passion as would naturally be aroused in the
mind of an ordinarily reasonable person under the given facts
and circumstances . . . .’”” (People v. Rountree (2013) 56 Cal.4th
823, 855.) “‘To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection. . . . [T]he anger or other passion

10
must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and
did not intervene.’ [Citation.] ‘[P]rovocation is sufficient not
because it affects the quality of one’s thought processes but
because it eclipses reflection.’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 650.)
Heat of passion arising from provocation may also negate
premeditation and deliberation and reduce first degree murder to
second degree murder. (People v. Rivera (2019) 7 Cal.5th 306,
328; People v. Rogers (2006) 39 Cal.4th 826, 877-878.) But the
“‘test of whether provocation or heat of passion can negate
deliberation and premeditation so as to reduce first degree
murder to second degree murder . . . is subjective.’” (People v.
Robbins (2018) 19 Cal.App.5th 660, 674; see People v. Hardy
(2018) 5 Cal.5th 56, 100 [provocation that makes the defendant
act in a sudden heat of passion can negate deliberation and
premeditation].)

2. Substantial Evidence Did Not Support Giving
an Instruction on Heat of Passion
There was no evidence that, at the time of the shooting,
Alvarado “was subjectively roused to ‘the actual influence of a
strong passion’” or a “‘“‘[v]iolent, intense, high-wrought or
enthusiastic emotion.’”’” (People v. Smith, supra, 4 Cal.5th at
p. 1166.) Nor was there evidence that Alvarado’s reasoning or
thought process was obscured by passion or that he acted without
reflection or with unconsidered reaction to provocation. To the
contrary, Alvarado acted rationally and with considered
judgment. After he learned about the shooting at the Bryant
house, he returned there with McCollum, Reynolds, and Smith,
waited for Reynolds and Smith to return with the gun, and

11
planned with his three friends to return to the housing project
and find Beaulieu. When they arrived, Alvarado had a rational,
calculated discussion with Smith over which one of them was
going to shoot Beaulieu, waited patiently with Reynolds for the
area to clear before approaching Beaulieu in Reynolds’s car, and
rolled down the window as Reynolds drove slowly past the
victims. The reason Alvarado gave Bryant for shooting Beaulieu
was not that he was passionately upset about anything, but that
“the girls wouldn’t do it.” The only time Alvarado showed any
significant emotion was after the shooting as Reynolds drove
away from the scene, when Alvarado was excited about having
shot two people, and back at the Bryant house, when Alvarado
told Bryant that Beaulieu was “no more” and made a slit-throat
gesture indicating Beaulieu was dead. Hardly substantial
evidence Alvarado actively and subjectively killed in the heat of
passion.
Nor would whatever provocation or emotion Alvarado may
have felt after learning about the shooting incident at the Bryant
house have caused a reasonable person, upon hearing the news,
to react without reflection by hunting down Beaulieu and killing
him. Yes, Smith was upset about the incident and had argued
with Beaulieu about it. And yes, Alvarado may have been
concerned his friend and her baby could have been injured had
they been home. But it was not his home, it was not his baby,
and (before he shot Beaulieu) Smith was not his girlfriend. He
was not present at, and nearly four hours had passed since, the
shooting at the Bryant house. An ordinary person, after learning
what Alvarado learned about the Bryant house incident, would
not have become so infected with Smith’s emotions that all
reason and reflection would have been obscured. A reasonable

12
person in Alvarado’s position would not have reacted by planning
a retaliatory shooting, hunting down his intended victim,
debating with a confederate who was going to fire the shots, and
executing a surprise attack on victims who may not have had
anything to do with the prior incident.
Moreover, to the extent Smith was able to “transfer” her
passion to Alvarado, there was plenty of time for Alvarado to cool
down and reflect on what he was doing. (See People v. Rangel
(2016) 62 Cal.4th 1192, 1225 [“‘“‘if sufficient time has elapsed for
the passions of an ordinarily reasonable person to cool, the killing
is murder, not manslaughter’”’”]; People v. Moye (2009) 47 Cal.4th
537, 550 [“‘“if sufficient time has elapsed between the provocation
and the fatal blow for passion to subside and reason to return,
the killing is not voluntary manslaughter”’”]; People v. Millbrook
(2014) 222 Cal.App.4th 1122, 1139 [“‘[i]f sufficient time has
elapsed for one’s passions to “cool off” and for judgment to be
restored,’ malice is not negated”].) Between when he learned
from Smith about the Bryant house shooting and when he killed
Beaulieu, which was about an hour, Alvarado returned to the
house, waited there until Reynolds and Smith arrived with the
gun, drove to and around the housing project searching for
Beaulieu, stopped in a side street to debate with Smith who
should be the shooter and to change seats, waited for cars to clear
the area, and slowly drove up to the stairs where Beaulieu was
sitting with James. There was more than enough time for
whatever passion Alvarado may have felt (and even more time for
the anger of Smith, the purported source of Alvarado’s passion) to
dissipate, and “‘for the blood to cool and reason to resume its
habitual control.’” (People v. Beltran, supra, 56 Cal.4th at
pp. 946-947.)

13
 B. Alvarado Has Not Shown His Trial Counsel Provided
Ineffective Assistance at Sentencing
Citing People v. Morrison (2019) 34 Cal.App.5th 217,
disagreed with by People v. Garcia (2020) 46 Cal.App.5th 786,
review granted June 10, 2020, S261772 and People v. Tirado
(2019) 38 Cal.App.5th 637, review granted November 13, 2019,
S257658, Alvarado argues his trial counsel provided ineffective
assistance at sentencing by failing to ask the court to impose
lesser included firearm enhancements. Alvarado argues “no
tactical reason could excuse” his trial counsel’s failure to ask the
court to impose a 10- or 20-year firearm enhancement under
section 12022.53, subdivision (b) or (c), rather than the 25-years-
to-life enhancement the court imposed under section 12022.53,
subdivision (d), on his murder conviction, or to impose the 10-
year firearm enhancement under section 12022.53,
subdivision (b), rather than the 20-year enhancement the court
imposed under section 12022.53, subdivision (c), on the
attempted murder conviction.
We need not wait until the Supreme Court decides whether
the trial court has (People v. Morrison) or does not have (People v.
Garcia and People v. Tirado) discretion to impose a lesser
included firearm enhancement under section 12022.53 on which
the jury did not make a finding, because Alvarado cannot show
prejudice. To establish ineffective assistance of counsel, “‘“a
defendant must show that (1) counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a

14
probability sufficient to undermine confidence in the outcome.’”’”
(People v. Rices (2017) 4 Cal.5th 49, 80; see In re Gay (2020)
8 Cal.5th 1059, 1086; People v. Sepulveda (2020) 47 Cal.App.5th
291, 301.) “If a claim of ineffective assistance of counsel can be
determined on the ground of lack of prejudice, a court need not
decide whether counsel’s performance was deficient.” (In re Crew
(2011) 52 Cal.4th 126, 150; see Strickland v. Washington (1984)
466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674] [“a court need
not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies,” and “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed”].)
At sentencing, the trial court stated: “I’ve considered, as I
now have discretion to do, the gun allegations and the request to
strike them. This is a case that I clearly think demonstrates
when gun allegations should not be stricken. I’m exercising my
discretion not to strike any of the gun allegations.” The court
also stated: “I’ve listened to your arguments, considered all the
submissions, looked at the California Rules of Court factors. I
find no factors in mitigation in this case. The motivation of the
defendant was undoubtedly skewed, but [it was a] bad choice,
very bad choice, and personally [a] bad choice when you talk
about the fact that the person he was shooting at after he
persuaded Ms. Smith to give him the gun because he, as I recall,
was the better shot, was somebody that he knew, that he had had
dinner at his house. It’s shocking to me.” The court proceeded to
impose maximum sentences and firearm enhancements on both
convictions and ordered Alvarado to serve them all consecutively.
Given the court’s statements and sentencing decisions, the record

15
clearly indicates that, even if trial counsel for Alvarado had asked
the court to impose lesser firearm enhancements on the two
convictions, the court would not have done so. (See People v.
Windfield (2021) 59 Cal.App.5th 496, 530; People v. Yanaga
(2020) 58 Cal.App.5th 619, 628.)

DISPOSITION

The judgment is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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