People v. Alvarez CA6

Filed 7/18/24 P. v. Alvarez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051172 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1230950)

v.

JAIME ALTUNA ALVAREZ,

Defendant and Appellant.

Defendant Jaime Altuna Alvarez was convicted of attempted murder and discharging a firearm from a motor vehicle in 2013. He petitioned for resentencing under Penal Code former section 1170.95 (now Pen. Code, § 1172.6). The trial court denied the petition without an evidentiary hearing after concluding defendant was ineligible for relief under that statute as a matter of law. Defendant argues on appeal that the trial court should have conducted an evidentiary hearing because an ambiguity in the jury instructions at defendant’s trial allowed the jury to find him guilty of attempted murder with malice imputed based solely on his participation in a crime. As we will explain, we agree with the trial court and will affirm the denial. I. TRIAL COURT PROCEEDINGS According to this court’s unpublished opinion in defendant’s direct appeal, defendant was the driver of a car occupied by two other people. One of the passengers shot at but missed a man riding a bicycle. Defendant was charged in 2012 with attempted murder with premeditation (Pen. Code, §§ 187, 189, 664, subd. (a)), including allegations

that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)) and that a principal personally discharged a firearm (Pen. Code, § 12022.53, subds. (c), (e)(1)); he was also charged with discharging a firearm from a vehicle (Pen. Code, § 26100, subd. (c)), including an allegation that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). (Unspecified statutory references are to the Penal Code.) A codefendant, Martina Mendoza Loya, was charged with attempted murder and other crimes in the same information. Relevant to defendant’s arguments in this appeal, the jury was instructed on aiding and abetting liability with CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [⁋] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [⁋] [Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]” (Brackets in original.) The jury was also instructed with CALCRIM No. 401: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [⁋] 1. The perpetrator committed the crime; [⁋] 2. The defendant knew that the perpetrator intended to commit the crime; [⁋] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [⁋] AND [⁋] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [⁋] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” The jury was instructed on attempted murder, with CALCRIM No. 600: “To prove that a defendant is guilty of attempted murder, the People must prove that: 2