Filed 2/10/21 P. v. Alaniz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County, Shellie Samuels, Judge. Affirmed.

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Maria Alaniz appeals from the trial court’s denial of her Penal Code section 1170.95[1] petition. We affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On the evening of October 18, 2006, Alaniz drove Javier Fuentes and a second man to a residence where the victims, Gillian Saladino, Arturo Pinuelas, and Walter Lopez, were outside. Fuentes and the second man exited the vehicle and fired multiple rounds at the victims, killing Lopez.

In April 2009, a jury convicted Alaniz of the second degree murder of Lopez and the attempted murders of Saladino and Pinuelas, and found a section 186.22, subdivision (b) gang enhancement true as to each offense.[3] (§§ 187, subd. (a), 664, 186.22, subd. (b).) The jury found, as to Alaniz, that the attempted murders were not willful, deliberate, or premeditated, and also found not true allegations that a principal used and discharged a firearm during their commission. (§ 12022.53, subds. (b), (c), (d), (e)(1).) The trial court sentenced Alaniz to 15 years to life in prison, with a minimum parole eligibility date of 15 years, plus a determinate term of nine years. This court affirmed the judgment in 2012. (People v. Fuentes et al. (Jan. 20, 2012, B220827) [nonpub. opn.].)

After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Alaniz petitioned for vacation of her murder and attempted murder convictions pursuant to section 1170.95. The court appointed counsel for Alaniz. The People opposed the petition on the ground that Alaniz had been convicted as a direct aider and abettor. In reply, Alaniz argued that she was “eligible for resentencing due to her second-degree homicide conviction under the natural and probable consequences doctrine and her attempted homicide conviction[s] under the natural and probable consequences doctrine.”

On December 6, 2019, the trial court held a hearing on the petition. After considering argument from Alaniz’s counsel and the People, the court denied the petition. It explained that it had reviewed the trial transcripts, court file, jury instructions, and other case materials. Based on its review, the court concluded that Alaniz was “not prosecuted under any theory prohibited by [section] 1170.95 or [Senate Bill] 1437.” The prosecution did not proceed on a felony-murder or natural and probable consequences theory, and the jury was not instructed on them. Instead, Alaniz was “plain and simply an aider and abett[o]r.” As to the attempted murder convictions, the court reasoned that section 1170.95 did not apply, but even if it did, Alaniz was ineligible because the attempted murder convictions were not premised on either the felony-murder rule or the natural and probable consequences doctrine. Additionally, the evidence elicited at trial demonstrated Alaniz acted with express malice.

Alaniz timely appealed.

DISCUSSION

After review of the record, Alaniz’s court-appointed counsel filed an opening brief that raised no issues, and requested that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was advised that she had 30 days to submit by brief or letter any contentions or argument she wished this court to consider. We have received no response.

The trial court properly denied Alaniz’s petition. The jury instructions conclusively show she was convicted based on a theory—direct aiding and abetting—that survives Senate Bill 1437’s amendments to sections 188 and 189. “[P]otential relief under section 1170.95 extends only to those convicted of murder by operation of the natural and probable consequence doctrine or of felony murder. [Citation.]” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056, review granted Sept. 23, 2020, S263939.) Alaniz’s jury was not instructed on either the natural and probable consequences doctrine or the felony-murder rule; therefore, she could not have been convicted based on either of those theories. (See id. at p. 1055; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598.) Senate Bill 1437 did not alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons “necessarily ‘know and share the murderous intent of the actual perpetrator.’ [Citations.] One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” (People v. Lewis, at p. 1135; People v. Soto, at pp. 1056–1057.) The fact that the instruction regarding implied malice used the phrase “natural consequences” is of no moment. That language did not transform Alaniz’s conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95. (People v. Soto, at pp. 1058–1059; People v. Edwards, at p. 674.)

The trial court also correctly determined that Alaniz is ineligible for relief in regard to her attempted murder convictions. This and other courts have held that Senate Bill 1437 or section 1170.95 do not encompass attempted murder. (See, e.g., People v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103–1105, review granted Nov. 13, 2019, S258175; People v. Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983.) Our Supreme Court is currently considering whether Senate Bill 1437 applies to attempted murder under the natural and probable consequences doctrine. (People v. Lopez, S258175.) But even if section 1170.95 extends to attempted murder, that would not assist Alaniz here, because her jury was not instructed that her guilt of attempted murder could be premised on a natural and probable consequences theory.

We have examined the record, and are satisfied no arguable issues exist and Alaniz’s attorney has fully complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125–126; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] At appellant’s request, we have taken judicial notice of the record and our opinion in her direct appeal, No. B220827. (Evid. Code, §§ 451, 452, 459.)

[3] The jury also convicted Alaniz of two counts of assault with a deadly weapon arising from a separate incident, involving different victims, that occurred on August 9, 2006. Those convictions are not at issue here.