Filed 1/4/22 P. v. Alcarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311682
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA072796)
v.
ERNESTO ALCAREZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of
Los Angeles County, Steven A. Marcus, Judge. Reversed and
remanded, with directions.
Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Ernesto Alcarez appeals from a postjudgment order
partially denying his petition for resentencing under Penal Code section
1170.951 as to his attempted murder convictions. Defendant contends,
the People concede, and we agree the trial court’s order partially
denying defendant’s petition should be reversed for the court to consider
the petition in light of the recent amendment to section 1170.95 enacted
by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2),
signed by the Governor on October 5, 2021, effective January 1, 2022.
We therefore reverse the order as to the attempted murder convictions
and remand for the trial court to consider defendant’s petition as to his
attempted murder convictions under the recent amendment to section
1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 2006, defendant acted as a lookout for a fellow
gang member who shot multiple rounds at a group of African American
men, women and children that was socializing in front of a residence in
a Hispanic gang’s territory.
A jury convicted defendant as an aider and abettor of second
degree murder and seven counts of attempted murder (§§ 664/187,
subd. (a)) under the natural and probable consequences doctrine. As to
all counts, the jury found true the alleged firearm enhancements
(§ 12022.53, subds. (b), (c), (d), and (e)) and a gang enhancement
1 All further statutory references are to the Penal Code unless otherwise
stated.
2
(§ 186.22, subd. (b)(1)(C)). The jury found that none of the attempted
murders were willful, deliberate, and premeditated, but found that
these offenses were hate crimes and that defendant committed them
voluntarily and in concert with another and others (§ 422.75, subd. (b)).
Defendant was sentenced to a total of 238 years, four months to life in
state prison. After defendant appealed, we remanded for resentencing
issues, but otherwise affirmed his conviction. (People v. Alcarez (Jan. 8,
2014, B242197) [nonpub. opn.].) 2
In 2018, the Legislature passed, and the Governor approved,
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which came into effect
January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Section 1170.95 was
enacted as part of the legislative changes effected by Senate Bill No.
1437. The statute provides a procedural mechanism for defendants
convicted of murder on a felony murder theory or under the natural and
probable consequences doctrine to seek resentencing.
On January 7, 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. In his petition, defendant argued that he
was entitled to relief because he was convicted of one count of second
degree murder and seven counts of attempted murder as an aider and
abettor under the natural and probable consequences doctrine.
The trial court found defendant established a prima facie case as
to his second degree murder conviction, issued an order to show cause
as to that conviction, and set a hearing. The court then found section
1170.95 did not apply to defendant’s attempted murder convictions. At
2 On September 2, 2021, we granted defendant’s request to take judicial
notice of the record in his prior appeal, case No. B242197.
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the evidentiary hearing, the trial court granted the petition as to
defendant’s second degree murder conviction but denied the petition as
to the attempted murder convictions. The court again found that
section 1170.95 does not apply to attempted murder. Defendant filed a
timely notice of appeal.
On October 5, 2021, while defendant’s appeal was pending, the
Governor signed into law Senate Bill No. 775 (2020-2021 Reg. Sess.).
Effective January 1, 2022, Senate Bill No. 775 amends section 1170.95.
Defendant subsequently filed his reply brief, arguing he is entitled
resentencing on the attempted murder convictions pursuant to Senate
Bill No. 775. Because the People did not have the benefit of addressing
this recent legislation, we asked the People to file a letter brief on
Senate Bill No. 775’s effect, if any, on the pending appeal. The People
submitted a letter brief, which we have reviewed.
DISCUSSION
Defendant seeks resentencing relief as to his attempted murder
convictions. Based on the passage of Senate Bill No. 775, we reverse
and remand with instructions.
Senate Bill No. 775 was signed into law on October 5, 2021, and
expands the petition process under section 1170.95 to include
individuals convicted of “attempted murder under the natural and
probable consequences doctrine.” (Legis. Counsel’s Digest, Sen. Bill No.
775 (2021-2022 Reg. Sess.).) Senate Bill No. 775 was passed as
nonurgency legislation during the regular session and became effective
on January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1); see also
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People v. Camba (1996) 50 Cal.App.4th 857, 862.) The People concede
that under the amended section 1170.95, defendant may be able to
establish a prima facie showing of eligibility as to the attempted murder
convictions. Because defendant’s postjudgment order will not become
final until after Senate Bill No. 775 goes into effect, we remand the
matter to the trial court for further proceedings. (See People v. Garcia
(2018) 28 Cal.App.5th 961, 973; People v. Vieira (2005) 35 Cal.4th 264,
305.)
DISPOSITION
The postjudgment order partially denying the section 1170.95
petition is reversed and the matter is remanded to the trial court to
hold further proceedings in accordance with section 1170.95,
subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
CURREY, J.
MICON, J.*
*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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