People v. Alcarez CA4/3

Filed 11/24/20 P. v. Alcarez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058729

v. (Super. Ct. No. 97CF0037)

JOE JULIO ALCAREZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, Adrian R. Contreras and Joseph Anagnos, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Appellant Joe Julio Alcarez seeks to reverse a trial court’s denial of his 1 petition for resentencing under Penal Code Section 1170.95. The section was enacted by the Legislature through Senate Bill No. 1437 (2017-2018 Reg. Sess.; Senate Bill 1437), which was passed to “amend the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial court summarily denied Alcarez’s petition for failure to establish a prima facie case for resentencing under section 1170.95. Alcarez contends we must construe section 1170.95 to apply to his attempted murder conviction. We disagree and affirm the court’s postjudgment order denying Alcarez’s petition.

I FACTS AND PROCEDURAL HISTORY We summarized the facts underlying this case in our earlier opinion affirming Alcarez’s convictions. (People v. Alcarez (Mar. 3, 1999, G022586) [nonpub. opn.].) Near midnight on New Year’s Eve 1996, Alcarez introduced the victim to two individuals in setting up a drug deal. One of the individuals assaulted the man and, during the ensuing altercation, Alcarez kicked the victim’s face before the second individual shot the victim multiple times. In 1997, a jury convicted Alcarez of attempted murder, assault with a firearm, and sale or transportation of marijuana. (§§ 664, 187; 245, subd. (a)(2); Health & Saf. Code, § 11360, subd. (a).) After finding certain sentencing enhancement allegations for multiple prior serious or violent felonies true, the trial court sentenced Alcarez to 35 years to life in prison. As noted, this court affirmed the judgment in 1999. Following the Legislature’s enactment of Senate Bill 1437, Alcarez petitioned the trial court for resentencing under section 1170.95, alleging he was