People v. Alvarado CA6

Filed 3/9/22 P. v. Alvarado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048753 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS161207A)

v.

FABIAN ALVARADO,

Defendant and Appellant.

In his second appeal to this court, appellant Fabian Alvarado argues his sentence must be vacated and remanded to the trial court for reconsideration. This court previously reversed one of the counts of conviction and vacated Alvarado’s prior sentence. At the subsequent resentencing, the trial court did not strike or dismiss two firearm enhancements. (Pen. Code, § 12022.53, subd. (h).)1 Alvarado contends the record does not make clear whether the trial court understood at his resentencing its discretion to impose lesser included firearm enhancements, and therefore the sentence must be vacated. We agree and remand for the trial court to exercise its informed discretion.

1 Unspecified statutory references are to the Penal Code.

I. PROCEDURAL BACKGROUND2 On December 11, 2017, a jury found Alvarado guilty of first degree murder (count 1), two counts of willful, deliberate, and premeditated attempted murder (counts 2 and 4), and shooting at an inhabited dwelling (count 5). The jury also found Alvarado committed the offenses for the benefit of a criminal street gang. Regarding the murder, the jury determined that Alvarado or a principal personally and intentionally discharged a firearm causing death. Regarding the attempted murders, the jury found that Alvarado or a principal personally and intentionally discharged a firearm. On January 10, 2018, the trial court sentenced Alvarado to an aggregate term of 120 years to life, comprised of an indeterminate term of 25 years to life for the murder plus an indeterminate term of 25 years to life for the discharge of a firearm causing death and two indeterminate terms of 15 years to life for the attempted murders plus two determinate terms of 20 years for the discharge of a firearm. The court imposed and stayed an indeterminate term of 15 years to life for shooting at an inhabited dwelling. On May 1, 2020, this court reversed for insufficient evidence Alvarado’s conviction for attempted murder and remanded the matter to the trial court with directions to dismiss count 4 and resentence Alvarado.3 On January 8, 2021, the trial court conducted a resentencing hearing. The People requested that the trial court follow the disposition of this court’s prior opinion. Alvarado did not make any specific sentencing requests and submitted the matter. At Alvarado’s resentencing, the trial court on count one (first degree murder, § 187, subd. (a)), imposed an indeterminate term of 25 years to life, plus an indeterminate 2 As the facts of Alvarado’s crimes are not relevant to this appeal, we do not recount them here. By separate order in this case, we granted Alvarado’s request that we take judicial notice of the prior appeal (case No. H045500), and we rely on the procedural history contained in our previous opinion. (See People v. Alvarado (May 1, 2020, H045500) [nonpub. opn.].) 3 This court also directed the trial court upon remand to stay the 15-year minimum parole eligibility term imposed on count 2 pursuant to section 186.22, subdivision (b)(5). 2