People v. Alvarado CA2/6

Filed 11/6/23 P. v. Alvarado 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B324554 (Super. Ct. No. GA063808) Plaintiff and Respondent, (Los Angeles County)

v.

JOE ESTRADA ALVARADO,

Defendant and Appellant.

Joe Estrada Alvarado, who is serving a prison term for a first-degree murder he committed in 2005, appeals the summary denial of his petition for resentencing under former Penal Code1 section 1170.95 (now section 1172.6). Appellant contends the trial court prejudicially erred in denying the petition without appointing counsel. We affirm.

1 Unless otherwise noted, all statutory references are to the

Penal Code.

FACTS AND PROCEDURAL HISTORY In 2008, a jury found appellant guilty of first-degree special-circumstance murder (§§ 187, subd. (a), 190.2, subd. (a)(17)), robbery (§ 211), and assault with a deadly weapon, i.e., a knife (§ 245, subd. (a)(1)). The jury also found true allegations that appellant personally used a deadly weapon in committing the offenses (§ 12022, subd. (b)(1)), but found not true an allegation that his commission of the murder was willful and premeditated. In a bifurcated proceeding, the court found true allegations that appellant had suffered two prior convictions or juvenile adjudications within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had been convicted of a serious felony (§ 667, subd. (a)(1)). Appellant was sentenced to an aggregate term of life without the possibility of parole (LWOP) plus 57 years to life. On appeal we modified the sentence to LWOP plus 30 years to life, but otherwise affirmed. (People v. Alvarado (July 26, 2009, B206555) [nonpub. opn.].) The facts set forth in the appellate opinion, the reporter’s transcript of the prosecutor’s closing argument, and the jury instructions unequivocally demonstrate that appellant was tried and convicted as the actual killer and sole perpetrator of the murder of Dennis Choi, whom appellant stabbed to death in the course of a robbery of which appellant was also the sole perpetrator.2 Appellant petitioned for resentencing under former section 1170.95 (now section 1172.6) and requested the appointment of