People v. Alcarez CA2/4

Filed 1/4/22 P. v. Alcarez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B311682

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA072796) v.

ERNESTO ALCAREZ,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Steven A. Marcus, Judge. Reversed and remanded, with directions. Marilee Marshall, 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, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Ernesto Alcarez appeals from a postjudgment order partially denying his petition for resentencing under Penal Code section 1170.951 as to his attempted murder convictions. Defendant contends, the People concede, and we agree the trial court’s order partially denying defendant’s petition should be reversed for the court to consider the petition in light of the recent amendment to section 1170.95 enacted by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2), signed by the Governor on October 5, 2021, effective January 1, 2022. We therefore reverse the order as to the attempted murder convictions and remand for the trial court to consider defendant’s petition as to his attempted murder convictions under the recent amendment to section 1170.95.

FACTUAL AND PROCEDURAL BACKGROUND On December 15, 2006, defendant acted as a lookout for a fellow gang member who shot multiple rounds at a group of African American men, women and children that was socializing in front of a residence in a Hispanic gang’s territory. A jury convicted defendant as an aider and abettor of second degree murder and seven counts of attempted murder (§§ 664/187, subd. (a)) under the natural and probable consequences doctrine. As to all counts, the jury found true the alleged firearm enhancements (§ 12022.53, subds. (b), (c), (d), and (e)) and a gang enhancement