People v. Alvarez CA2/6

Filed 1/19/22 P. v. Alvarez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B310892 (Super. Ct. No. TA076008) Plaintiff and Respondent, (Los Angeles County)

v.

SALVADOR ALVAREZ,

Defendant and Appellant.

Salvador Alvarez (“appellant”) appeals from the trial court’s order denying his petition for resentencing pursuant to 1 Penal Code section 1170.95 for his prior convictions of attempted premeditated murder. The trial court denied his petition without appointing counsel after concluding that persons convicted of attempted murder are ineligible for relief under section 1170.95. We reverse and remand with instructions.

1 All further statutory references are to the Penal Code.

In March 2005, a jury convicted appellant of two counts of attempted premeditated murder (§§ 187, subd. (a), 664) and three counts of shooting at an inhabited dwelling or vehicle (§ 246). The jury found true the allegation that the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)), and further found true the firearm enhancement allegations, specifically: a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), a principal was armed with a firearm (§12022, subd. (a)(1)), and a principal was armed with an assault weapon (§ 12022, subd. (a)(2)). (People v. Alvarez et al. (Aug. 16, 2006, B182761) [nonpub. opn.] (Alvarez).) Appellant was sentenced to life with the possibility of parole plus 20 years. On appeal, this court affirmed but modified the judgement to stay the imposition of the firearm enhancements pursuant to section 12022, subdivision (a)(1). (Alvarez, supra, B182761, slip opn. at p. 4.) In January 2021, appellant filed a petition for resentencing pursuant to section 1170.95 on the basis that “Senate Bill [No.] 1437 extends to attempted murder.” (Capitalization and bold omitted.) The trial court denied his petition because appellant “was not convicted of murder.” During the pendency of this appeal, the Governor approved Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775). (Stats. 2021, ch. 551, § 2.) This legislation, which took effect on January 1, 2022, amends section 1170.95 to permit certain persons convicted of attempted murder to seek relief. We requested supplemental briefing to address SB 775’s effect, if any, on appellant’s pending appeal. Both parties agreed the matter should be remanded to permit the trial court to