People v. Albor CA2/6

California Court of Appeal Sep 21, 2021 No. B306210Unpublished

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Holding. The court held that the defendant failed to establish a prima facie case for relief under Penal Code section 1170.95 because the record of conviction demonstrated he acted alone and was not convicted under the felony-murder rule or the natural and probable consequences theory.

Issues

Whether the trial court erred in denying the section 1170.95 petition without an evidentiary hearing.
Whether the defendant was denied his Sixth Amendment right to counsel during the section 1170.95 proceedings.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The record of conviction unequivocally shows that Albor cannot make a prima facie case for relief. Albor acted alone. He was not convicted under the felony-murder rule or the natural and probable consequences theory.”

“Our Supreme Court has held that petitioner is not constitutionally entitled to counsel at the outset of the section 1170.95, subdivision (c) process.”

Filed 9/21/21 P. v. Albor CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306210 (Super. Ct. Nos. Plaintiff and Respondent, F000368215001, F368215) (San Luis Obispo County) v.

J. EFRAIN GONZALEZ ALBOR,

Defendant and Appellant.

J. Efrain Gonzalez Albor appeals the denial of his petition pursuant to Penal Code section 1170.95.1 We affirm. FACTS Convictions In 2006, Albor pled no contest to willful, deliberate, and premediated murder. (§ 187, subd. (a).) He admitted the special circumstance that he committed the murder by lying in wait. (§ 190.2, subd. (a)(15).) Albor also pled no contest to one count of

1 All statutory references are to the Penal Code.

assault with a deadly weapon (§ 245, subd. (a)(1)) and that he personally inflicted great bodily injury during the assault. He was sentenced to life without the possibility of parole. Offenses The facts underlying the offenses are taken from the transcript of the preliminary hearing. Albor and his wife lived in an apartment with their adult son. Albor formed the belief that his wife and son were having sex. In October 2004, he threatened to kill his wife and son. Albor was arrested and the trial court granted a protective order. In January 2005, Albor was no longer living with his wife and son. He broke into their apartment when they were not home. He went into the bathroom with a knife and hid behind the shower curtain. When Albor’s wife and son returned home, his wife went into the bathroom. She thought she was alone. Albor came out of the shower, grabbed his wife from behind, and held a knife to her neck. She screamed to her son for help. When their son came in, Albor threw his wife aside and threatened their son with the knife. The three of them moved out into the hallway. Albor’s wife reentered the bathroom and shut the door. Albor stabbed their son. When Albor’s wife came out of the bathroom, she saw her son lying on the bed. Albor stabbed her and beat her before leaving in their son’s car. He was arrested the next day. Albor’s son died from being stabbed once in the chest. Section 1170.95 Petition Albor’s section 1170.95 petition was on a form. Albor checked the boxes that said: “A complaint, information, or indictment was filed against me that allowed the prosecution to

People v. Albor CA2/6

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

J. EFRAIN GONZALEZ ALBOR,

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