People v. Alarcon CA2/8

Filed 1/31/22 P. v. Alarcon CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B311345

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA203925) v.

ERNEST ALARCON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Kerry B. Bensinger, Judge. Reversed and remanded with directions. Sally Patrone Brajevich, under appointment for 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, Zee Rodriguez, Charles J. Sarosy, Amanda V. Lopez and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent. **********

In July 2000, defendant and appellant Ernest Alarcon was convicted by jury of premeditated attempted murder and being a felon in possession of a firearm. The jury found true the allegation the attempted murder was committed for the benefit of, at the direction of, or in association with a criminal street gang. The charges arose from an attack by defendant and two fellow gang members against a rival gang member in June 1999. The jury found true the allegation defendant had suffered a prior assault conviction. The court imposed a second strike sentence of two life terms with the possibility of parole, plus an eight-year determinate term. In an unpublished decision, we affirmed defendant’s conviction. (People v. Alarcon (June 20, 2003, B149643) [nonpub. opn.].) After the passage of Senate Bill 1437 (2017–2018 Reg. Sess.) in 2018, defendant filed, in propria persona, a petition for resentencing pursuant to Penal Code section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) In February 2021, the trial court summarily denied defendant’s petition, finding that defendant had failed to state a prima facie case for relief and was ineligible for relief as a matter of law because he was convicted of attempted murder, not murder. Defendant appealed. In our original decision, we affirmed the denial of defendant’s resentencing petition. Looking at the plain language of Penal Code section 1170.95, subdivision (a), we concluded the retroactive resentencing provisions applied only to those individuals “convicted of felony murder or murder under a