People v. Alves CA2/4

Filed 12/22/23 P. v. Alves 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B325710

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA102783
v.

ROBERT ALVES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Craig E. Veals. Affirmed.
Sally Patrone, 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, Senior
Assistant Attorney General, Noah P. Hill and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

In 1997, a jury convicted defendant and appellant Robert
Alves of first degree murder and conspiracy to commit murder.
The trial court sentenced him to concurrent terms of life without
the possibility of parole. In 2019, Alves filed a petition for recall
and resentencing under former Penal Code section 1170.95.1 The
trial court denied relief, and a different panel of this court
affirmed the trial court’s ruling in People v. Alves (July 27, 2020,
B298708) [nonpub. opn.] (Alves II).2
In 2022, Alves filed a second resentencing petition under
section 1172.6. In summarily denying relief, the trial court
explained that Alves had previously filed a petition which was
denied, and that “the denial stands.”
On appeal, Alves raises various arguments asserting the
trial court prejudicially erred and remand is warranted. We are
unpersuaded. Because the record demonstrates Alves is ineligible
for section 1172.6 relief as a matter of law, we affirm the trial
court’s order denying relief.

1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6 without making substantive
changes. (Stats. 2022, ch. 58, § 10.)
2 We granted Alves’s request for judicial notice of this court’s
opinion in Alves II. We likewise granted the Attorney General’s
request for judicial notice of the record in that case. We also
granted Alves’s request for judicial notice of our opinion resolving
his direct appeal in People v. Alves (Nov. 11, 1998, B115617)
[nonpub. opn.] (Alves I).

2
 PROCEDURAL BACKGROUND

The procedural background of this case is described as
follows in this court’s opinion in Alves II.
“The Los Angeles County District Attorney filed an
information charging Alves and codefendant Anna Dominguez
with first degree murder (§ 187, subd. (a); count one) and
conspiracy to commit murder (§ 182, subd. (a)(1); count two).[3]
The information alleged Alves and Dominguez personally used a
firearm in the commission of count one (§ 12022.5, subd. (a)(1)).
The information also alleged two special circumstances on count
one: (1) lying in wait (§ 190.2, subd. (a)(15)); and (2) the murder
was committed for financial gain (§ 190.2, subd. (a)(1)). With
respect to the conspiracy charge, the information alleged three
overt acts — the defendants or coconspirators: (1) obtained a
handgun; (2) drove to the scene; and (3) shot and killed victim
Frank Villareal.
“On March 13, 1997, a jury convicted Alves of first degree
murder, found not true the allegation that he personally used a
firearm, and found true the two special circumstance allegations.
The jury convicted Alves of conspiracy to commit murder, found
not true the allegation that he personally used a firearm, and
found the three alleged overt acts true. The trial court sentenced
Alves to life in prison without the possibility of parole on count
one, and a concurrent term of life without the possibility of parole
on count two. In an opinion filed November 19, 1999, this court,
in case no. B115617, ordered each defendant’s concurrent
sentence on count two stayed under section 654, and affirmed the

3 A third defendant, Ricardo B., was found guilty of murder
in a juvenile court proceeding.

3
convictions of both defendants in all other respects.” (Alves II,
supra, B298708.)
In 2019, Alves filed a petition for resentencing under
former section 1170.95, which the trial court denied. In 2020, a
different panel of this court affirmed the trial court’s order
denying relief.
Two years later, Alves filed a second petition for
resentencing, requesting that counsel be appointed on his behalf.
Without appointing counsel, the trial court summarily denied the
petition, noting it had already denied relief on Alves’s previous
petition. Alves timely appealed.

FACTUAL BACKGROUND4

“In the early morning hours of December 20, 1991, Frank
Villareal was murdered while he slept in his bed. The assailants
stood outside of his house and, through an open window, shot
Villareal three times in the head. Three individuals were
prosecuted for the murder: the victim’s wife, Anna Dominguez,
her lover, Robert Alves, and a third individual, Ricardo B., who
was 15 years old at the time and subject to proceedings in
juvenile court.
“Before the murder, Alves was incarcerated with Daniel
Dominguez (‘Daniel’), the brother of codefendant Anna
Dominguez (‘Anna’). Anna wrote to her brother that her husband,

4 The following information is taken from the facts section of
this court’s opinion resolving Alves’s first resentencing petition,
which is a modified version of the facts from this court’s opinion
resolving Alves’s direct appeal. We include this information solely
to provide background and context for the parties’ arguments,
and do not rely on it to resolve this appeal. (See People v.
Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)

4
Villareal, was physically abusing her. Daniel told Alves about the
abuse and, in anger, suggested something should be done to
Villareal. Alves volunteered to handle the matter and began
corresponding with Anna. After Alves was released, he and
several others drove to Anna’s house, where she told Alves and
Ricardo B. she would pay them to ‘take care of’ Villareal.
“Later, Villareal returned home. Alves hid in the backyard
with a companion and then rejoined the others who had traveled
with him to Anna’s house. Alves and Ricardo B. returned to the
house. Alves had a handgun and Ricardo B. had a baseball bat.
When they returned to the car, they told the group they had
removed the window screen in the bedroom, inserted the gun,
and shot Villareal. The next day, Alves returned to Anna’s house,
and she handed him something, possibly money. Within days,
Anna completed a Department of Motor Vehicles form
transferring a one-half interest in her car to Alves. When the
police first investigated the murder, Anna identified several
possible suspects besides herself and Alves, including the
Mexican Mafia and people who had previously fought with her
husband.
“Alves violated parole and returned to state prison. Once
back, he told Daniel he had murdered Villareal by shooting him
three times in the back of the head. Daniel was surprised Alves
had carried through on his threat to kill Villareal. In August
1994, after both Daniel and Alves had been released from prison,
Daniel telephoned Villareal’s mother and told her Alves and
Anna had murdered her son. Villareal’s mother contacted the
police, who opened an investigation. As a result, criminal
proceedings ensued against Alves and Anna, as well as juvenile
proceedings against Ricardo B.” (Alves II, supra, B298708.)

5
 DISCUSSION

I. Governing Law

The Legislature enacted Senate Bill 1437 (2017-2018 Reg.
Sess.) (SB 1437) “to amend the felony murder rule and the
natural and probable consequences 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); accord, § 189, subd. (e); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under the natural and probable consequences doctrine,
but who could not be convicted of murder following SB 1437’s
changes to sections 188 and 189, to petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
(§ 1172.6, subd. (a).) It also provides relief for certain individuals
convicted under any “other theory under which malice is imputed
to a person based solely on that person’s participation in a crime.”
(Ibid.)
A petition for relief under section 1172.6 must include a
declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)

6
 Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. 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.”
If the trial court determines the petitioner has made a
prima facie showing for relief and issues an order to show cause,
the court must hold a hearing “to determine whether to vacate
the murder . . . conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence.” (§ 1172.6, subd. (d)(1).) At the hearing, the
parties may rely on the record of conviction or present “new or
additional evidence” to support their positions, and “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).)

7
 II. Analysis

a. The record demonstrates Alves is ineligible for
relief as a matter of law

We granted Alves’s request for judicial notice of the jury
instructions and verdict forms from his trial. As the Attorney
General correctly asserts, a review of those portions of the record
demonstrates as a matter of law Alves is ineligible for section
1172.6 relief.
We begin by noting that, with respect to Alves’s murder
count, the jury was not instructed on felony murder, the natural
and probable consequences doctrine, nor aider and abettor
liability. Alves thus attempts to argue other instructions given at
his trial allowed for the possibility that the jury convicted him of
murder without finding he harbored the intent to kill. Alves’s
argument is unavailing. As noted above, in addition to finding
Alves guilty of murdering Villareal, the jury also found him
guilty of conspiracy to commit murder. On that count, the trial
court instructed the jury using CALJIC No. 8.69. That
instruction told the jury that a conspiracy to commit murder
required “the specific intent to agree to commit the crime of
murder and with the further specific intent to commit that
murder.” The instruction further explained one of the elements of
the offense was that “[e]ach of the persons to the agreement
harbored express malice aforethought, namely a specific intent to
kill unlawfully another human being[.]” It also reminded the jury
that “[m]urder is the unlawful killing of a human being with
malice aforethought.” And the only kind of malice aforethought
that was defined for the jury was express malice – the court
instructed the jury using CALJIC No. 8.11 and crossed out the
definition of implied malice. In light of the instructions given, the

8
jury’s guilty verdict on Alves’s conspiracy to commit murder
count demonstrates the jurors concluded he harbored the intent
to kill.5 And as mentioned above, the record reveals the jury was
not instructed on the felony murder rule, natural and probable
consequences doctrine, or aider and abettor liability on his
murder count. Viewing the jury instructions and verdicts as a
whole, it is clear Alves is ineligible for section 1172.6 relief as a
matter of law.
Contrary to Alves’s contention, the trial court’s use of
CALJIC No. 6.11 does not change the foregoing conclusion.
CALJIC No. 6.11, as given to the jury, stated: “Each member of a
criminal conspiracy is liable for each act and bound by each
declaration of every other member of the conspiracy if such act or
such declaration is in furtherance of the object of the conspiracy.
[¶] The act of one conspirator pursuant to or in furtherance of the
common design of the conspiracy is the act of all conspirators.”
Although Alves argues this instruction allowed the jury to convict
him of conspiracy to commit murder even if he did not personally
harbor the intent to kill, that is not the case. The instruction does
not mention intent, but instead refers only to acts and
declarations. And the other instructions, which did discuss
intent, explicitly explained to the jury that the intent finding
necessary to convict Alves of conspiracy to commit murder was
the express intent to kill. Thus, there is no reasonable likelihood
that CALJIC No. 6.11 would have been interpreted by the jury as

5 For this reason, we find unavailing Alves’s reliance on
People v. Maldonado (2023) 87 Cal.App.5th 1257 and People v.
Langi (2022) 73 Cal.App.5th 972 in asserting remand is
warranted. Unlike Alves’s case, those cases did not involve
convictions for conspiracy to commit murder, and thus did not
entail an explicit jury finding of express malice.

9
having anything to do with the intent necessary for a conspiracy
to commit murder, nor would the jurors interpret the instructions
as stating Alves could be liable for conspiracy even if he did not
have the intent to kill. (See People v. Ocegueda (2023) 92
Cal.App.5th 548, 557 (Ocegueda) [challenged instructions are
viewed in context of instructions as a whole and trial record to
determine whether there is a reasonable likelihood the jurors
applied the challenged instructions in an impermissible
manner].)
We likewise reject Alves’s argument that CALJIC No. 6.23,
which listed the alleged overt acts, indicated to the jury that
Alves could be convicted of conspiracy to commit murder without
having an intent to kill. Specifically, Alves argues because the
instructions stated “defendants and others” committed the overt
acts, the instruction could be interpreted to allow a conspiracy
conviction without an intent to commit murder, leaving open the
possibility that he was convicted under a theory of imputed
malice. But CALJIC No. 6.23 did not state the elements or intent
needed for conspiracy to commit murder; it only listed the alleged
overt acts. As discussed above, CALJIC No. 8.69, the instruction
on conspiracy to commit murder, repeatedly stated one of the
elements of the offense was the specific intent to kill. Other
instructions reiterated this point. For example, CALJIC No.
3.31.5 explained: “In the crime of conspiracy to commit murder,
the necessary mental state is a specific intent to kill.” The record
thus clearly demonstrates the jury concluded Alves harbored the
intent to kill. And, as mentioned above, the record demonstrates
that the jury was not instructed on felony murder, the natural
and probable consequences doctrine, nor aiding and abetting.

10
 Though the above analysis is sufficient to conclude Alves is
ineligible for section 1172.6 relief as a matter of law, we note that
other jury findings likewise support the conclusion that Alves is
ineligible for relief as a matter of law. As mentioned above, the
jury found true the special circumstance allegations that the
murder was (1) committed while Alves or a co-conspirator was
lying in wait; and (2) committed for financial gain. These findings
also establish the jury found Alves harbored the intent to kill.
Unlike a theory of murder based on lying in wait, the
special circumstance of lying in wait requires that “[t]he
defendant intentionally killed the victim by means of lying in
wait.” (§ 190.2, subd. (a)(15); see People v. Johnson (2016) 62
Cal.4th 600, 629 [lying in wait special circumstance requires an
intentional murder committed under circumstances in which
there is a concealment of purpose, a substantial period of waiting
and watching for an opportunity to act, and a surprise attack on
an unsuspecting victim]; People v. Cage (2015) 62 Cal.4th 256,
278 [whereas lying-in-wait murder requires only a wanton and
reckless intent to inflict injury likely to cause death, lying-in-wait
special circumstance requires intent to kill].)6
The financial gain special circumstance also requires an
intentional murder. (§ 190.2, subd. (a)(1) [‘The murder was
intentional and carried out for financial gain”].) “Even if the
defendant is ‘not the actual killer,’ if that defendant ‘with the
intent to kill, aids, abets, counsels, commands, induces, solicits,
requests, or assists any actor in the commission of murder in the

6 As a separate matter, we note that, with respect to Alves’s
murder count, the jury was instructed on two different theories of
liability: (1) premeditated and deliberate first degree murder; and
(2) first degree murder under a theory of lying in wait.

11
first degree,’ he or she is also subject to this special
circumstance.” (People v. Fayed (2020) 9 Cal.5th 147, 201-202,
citing § 190.2, subd. (c).)
The instructions on the special circumstance allegations
made clear that the intent to kill was required for a true finding
on either special circumstance. CALJIC No. 8.80.1 emphasized:
“If you find that a defendant was not the actual killer of a human
being, or if you are unable to decide whether the defendant was
the actual killer or co-conspirator, you cannot find the special
circumstance to be true as to that defendant unless you are
satisfied beyond a reasonable doubt that such defendant with the
intent to kill aided, abetted, solicited, or assisted any actor in the
commission of the murder in the first degree.” For both special
circumstances, the jury was also told that the special
circumstance allegations could not be found true “unless the
proved surrounding circumstances are not only” “consistent with
the theory that the defendant had the required specific intent,”
but “cannot be reconciled with any other rational conclusion.”
Thus, the instructions ensured that the jury found Alves had the
specific intent to kill before finding the special circumstances
true.7

7 Alves once again contends CALJIC No. 6.11 could have led
the jury to assume that the intent to kill could be imputed to a
defendant who was not the actual killer. However, CALJIC No.
6.11 did not apply to the special circumstances allegations or
even the crime of murder, but instead applied to the conspiracy
count. Thus, there was no likelihood the jury would have found
the special circumstance allegations true by imputing malice to
Alves based on CALJIC No. 6.11. (See Ocegueda, supra, 92
Cal.App.5th at p. 557.)

12
 In short, Alves is ineligible for relief as a matter of law
because (1) the jury was not instructed on felony murder, the
natural and probable consequences doctrine, or aiding and
abetting; and (2) any reasonable juror would have interpreted the
instructions as requiring a finding of express intent to kill on the
conspiracy to commit murder count and special circumstance
findings (see Ocegueda, supra, 92 Cal.App.5th at p. 557).
The Supreme Court’s recent decision in People v. Curiel
(Nov. 27, 2023, S272238) __ Cal.5th __ (Curiel) does not change
our analysis. A jury convicted Curiel of first degree murder and
found true a gang-murder special circumstance allegation under
section 190.2, subdivision (a)(22). (Curiel, supra, __ Cal.5th __.)
The jury’s special circumstance finding included a finding that
Curiel harbored the intent to kill. (Ibid.) During closing
arguments, however, the prosecution argued to the jury that
Curiel was guilty of murder under two different theories – (1) as
an aider and abettor (acting with express and implied malice);
and (2) under the natural and probable consequences doctrine.
(Ibid.) Under the very specific circumstances of Curiel’s case
(discussed in greater detail in the following paragraph), the
Supreme Court held the jury’s finding of intent to kill, standing
alone, did not necessarily establish Curiel was ineligible for
section 1172.6 relief as a matter of law. (Ibid.) In reaching this
conclusion, Curiel noted its holding involved a scenario that is
“‘quite narrow’ and relevant only to a ‘very small set of cases.’”
(Ibid.)
The basis for the Supreme Court’s holding was as follows:
“Because the jury was instructed on the natural and probable
consequences doctrine, the jury was required to find only that
Curiel knew that [the actual killer, Abraham] Hernandez

13
intended to commit one of the [two] underlying target offenses
[i.e., disturbing the peace or carrying a concealed firearm by a
gang member] and that Curiel intended to aid him in that
offense, not murder. Nor was the jury required to find that the
underlying target offenses, themselves, were dangerous to human
life. While the jury separately found Curiel intended to kill, such
an intent standing alone is insufficient to establish the requisite
mens rea for aiding and abetting murder.” (Curiel, supra, __
Cal.5th __, original italics.)
Curiel is thus different from Alves’s case. Whereas the jury
in Curiel was instructed on the natural and probable
consequences doctrine as well as aider and abettor liability,
Alves’s jury was not. And here, the record reveals the jury, in
addition to convicting Alves of murder, found Alves expressly
harbored the intent to kill, and formed a conspiracy to commit
murder, resulting in the victim’s murder. Alves’s case is also
different from Curiel in another crucial respect. Here, unlike in
Curiel, as discussed above, the jury found financial gain and lying
in wait special circumstance true. As noted above, the jury
instructions on the special circumstances, given at Alves’s trial,
explained: “If you find that a defendant was not the actual killer
of a human being, or if you are unable to decide whether the
defendant was the actual killer or co-conspirator, you cannot find
the special circumstance to be true as to that defendant unless
you are satisfied beyond a reasonable doubt that such defendant
with the intent to kill aided, abetted, solicited, or assisted any
actor in the commission of the murder in the first degree.” For
these reasons, Curiel does not alter our conclusion that Alves is
ineligible for relief as a matter of law.

14
 b. Because Alves is ineligible for relief as a matter of
law, his other arguments that remand is
warranted are unavailing

1. Alves’s collateral estoppel and law of the
case arguments

Alves argues the trial court prejudicially erred by denying
him relief under collateral estoppel principles or the law of the
case doctrine. Because the record demonstrates Alves is ineligible
for relief as a matter of law for the reasons described above, any
purported error in denying him relief based on collateral estoppel
or law of the case doctrine was harmless. Consequently, to the
extent the trial court’s ruling suggests it denied Alves relief
under principles such as collateral estoppel or the law of the case
doctrine, we need not decide whether the denial of relief on these
grounds was erroneous.

2. Alves’s argument that the trial court
prejudicially erred by not appointing
counsel

As discussed above, Alves is ineligible for section 1172.6
relief as a matter of law. Consequently, although the trial court
erred by not appointing counsel (see § 1172.6, subd. (b)(3); Lewis,
supra, 11 Cal.5th at p. 957), that error was harmless. (People v.
Mancilla (2021) 67 Cal.App.5th 854, 864.)

c. Alves’s argument concerning the gun allegation
finding

Alves lastly notes that the trial court’s denial of his first
resentencing petition incorrectly stated the jury found true the
allegation that he personally used a gun in the commission of the

15
murder. Indeed, we noted in our opinion affirming the denial of
Alves’s first resentencing petition that the court’s statement was
incorrect, as the jury found this personal use allegation not true.
(Alves II, supra, B298708.) Alves asks that we direct the trial
court to correct this error in its March 12, 2019 minute order. He
also argues remand is warranted because the trial court’s
mistaken conclusion that the jury found the gun use allegation
true was prejudicial error.
We reject Alves’s argument that the trial court’s mistake
was prejudicial error because, as discussed above, the record
demonstrates as a matter of law that Alves is ineligible for relief.
We see no reason, however, to deny Alves’s request that the
record be corrected. We therefore direct the trial court to correct
the minute order dated March 12, 2019, to reflect that the jury
found the firearm allegation not true.

16
 DISPOSITION

The order denying Alves section 1172.6 relief is affirmed.
Upon issuance of the remittitur, the trial court is instructed to
correct the technical error in the record in its minute order dated
March 12, 2019, to clarify that the jury found the firearm
allegation not true.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.
We concur:

COLLINS, J.

ZUKIN, J.

17