Filed 1/31/22 P. v. Alarcon CA2/8
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B311345
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA203925)
v.
ERNEST ALARCON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Kerry B. Bensinger, Judge. Reversed and
remanded with directions.
Sally Patrone Brajevich, under appointment for 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, Zee Rodriguez, Charles J. Sarosy, Amanda V.
Lopez and Charles S. Lee, Deputy Attorneys General, for
Plaintiff and Respondent.
**********
In July 2000, defendant and appellant Ernest Alarcon was
convicted by jury of premeditated attempted murder and being a
felon in possession of a firearm. The jury found true the
allegation the attempted murder was committed for the benefit
of, at the direction of, or in association with a criminal street
gang. The charges arose from an attack by defendant and two
fellow gang members against a rival gang member in June 1999.
The jury found true the allegation defendant had suffered a prior
assault conviction. The court imposed a second strike sentence of
two life terms with the possibility of parole, plus an eight-year
determinate term.
In an unpublished decision, we affirmed defendant’s
conviction. (People v. Alarcon (June 20, 2003, B149643)
[nonpub. opn.].)
After the passage of Senate Bill 1437 (2017–2018 Reg.
Sess.) in 2018, defendant filed, in propria persona, a petition for
resentencing pursuant to Penal Code section 1170.95.
Section 1170.95 was enacted as part of the legislative changes
effected by Senate Bill 1437 and became effective January 1,
2019. (Stats. 2018, ch. 1015, § 4.)
In February 2021, the trial court summarily denied
defendant’s petition, finding that defendant had failed to state a
prima facie case for relief and was ineligible for relief as a matter
of law because he was convicted of attempted murder, not
murder.
Defendant appealed. In our original decision, we affirmed
the denial of defendant’s resentencing petition. Looking at the
plain language of Penal Code section 1170.95, subdivision (a), we
concluded the retroactive resentencing provisions applied only to
those individuals “convicted of felony murder or murder under a
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natural and probable consequences theory” and not to
individuals, like defendant, convicted of attempted murder.
(People v. Alarcon (Aug. 4, 2021, B311345) [nonpub. opn.].)
Defendant filed a petition for review asking the Supreme
Court to grant review and defer briefing as this case raised the
same issue then under review in People v. Lopez (2019)
38 Cal.App.5th 1087, review granted November 13, 2019,
S258175, that is, whether Senate Bill 1437 applies to attempted
murder liability under the natural and probable consequences
doctrine. The Supreme Court granted review on October 13,
2021.
In October 2021, while this case was pending in the
Supreme Court, the Legislature passed Senate Bill 775 (2021–
2022 Reg. Sess.) which, among other things, amended the
language of Penal Code section 1170.95 by, among other things,
expanding the scope of the resentencing provision to include
individuals who had been convicted of attempted murder under a
natural and probable consequences theory. (Stats. 2021, ch. 551,
§ 2.)
On December 22, 2021, the Supreme Court transferred this
case to us with directions to vacate our decision and reconsider
the matter in light of the passage of Senate Bill 775. Having
vacated our original decision and reconsidered the issues
presented in light of the new legislation, we now reverse and
remand with directions to the superior court to appoint counsel
for defendant, conduct further proceedings pursuant to Penal
Code section 1170.95, subdivision (c) and if necessary,
subdivision (d), as amended.
DISCUSSION
As originally enacted, Senate Bill 1437 amended “ ‘the
felony murder rule and the natural and probable consequences
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doctrine, as it relates to murder, 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 in the
underlying felony who acted with reckless indifference to human
life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 also added
Penal Code section 1170.95 which set forth a procedure whereby
a “person convicted of felony murder or murder under a natural
and probable consequences theory” could petition for
resentencing relief. (Former § 1170.95, subd. (a).)
Senate Bill 775, among other things, amended Penal Code
section 1170.95, subdivision (a) to expand the individuals entitled
to petition for resentencing. Subdivision (a) now expressly
permits individuals convicted of attempted murder under a
natural and probable consequences theory to file a petition for
resentencing relief. In light of the new legislation, a defendant
“is eligible for resentencing relief under section 1170.95 by virtue
of his attempted murder conviction so long as [he] was convicted
under a natural and probable consequences theory.” (People v.
Montes (2021) 71 Cal.App.5th 1001, 1007.)
Here, the trial court summarily denied defendant’s petition
without appointing counsel on the grounds defendant was not
convicted of murder and therefore was ineligible for relief as a
matter of law. In light of the passage of Senate Bill 775
expanding the scope of individuals who may seek resentencing
relief to expressly include individuals convicted of attempted
murder under a natural and probable consequences theory, the
trial court’s order must be reversed.
Respondent disagrees, arguing the record of conviction,
including statements in this court’s 2003 unpublished decision
affirming defendant’s conviction, unequivocally demonstrates
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that defendant was not convicted under a natural and probable
consequences theory, and therefore he remains ineligible as a
matter of law. We are not persuaded by respondent’s arguments.
On remand, defendant, with the assistance of appointed
counsel, and respondent shall be entitled to file their respective
briefs. “After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court
declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (Pen. Code,
§ 1170.95, subd. (c).)
In the event the court issues an order to show cause, the
court shall conduct further proceedings in accordance with Penal
Code section 1170.95, subdivision (d), as amended by Senate
Bill 775.
DISPOSITION
The order denying defendant’s resentencing petition is
reversed and the case remanded to the superior court. On
remand, the superior court is directed to appoint counsel and
conduct further proceedings pursuant to Penal Code
section 1170.95, subdivision (c), as amended. In the event the
court issues an order to show cause, the court shall conduct
further proceedings in accordance with section 1170.95,
subdivision (d), as amended.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. WILEY, J.
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