People v. Alcaraz
| Decision Date | 01 December 2022 |
| Docket Number | B313936 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. STEVEN HECTOR ALCARAZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA057694 Daniel B. Feldstern, Judge. Affirmed.
Richard B. Lennon and Rudolph J. Alejo, under appointment by 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, Charles S. Lee and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Steven Hector Alcaraz appeals the trial court's order denying his petition for vacatur of his murder conviction and resentencing under former Penal Code[1]section 1170.95 (now § 1172.6),[2] following an order to show cause and hearing pursuant to subdivision (d)(3) (entitlement hearing).
At the entitlement hearing, the trial court refused Alcaraz's request to testify on his own behalf. On appeal, Alcaraz contends that the trial court's exclusion of his testimony violated section 1172.6, subdivision (d)(3), which permits a petitioner to offer new or additional evidence, and violated his constitutional rights.
We affirm the trial court's order.
FACTS AND PROCEDURAL HISTORY
As relevant here, Alcaraz "participated in a gang-related assault on September 22, 2006. He was driving in his home neighborhood when he saw a GMC Yukon occupied by Javier Nuno Jr., his brother, Fernando Nuno, Javier's girlfriend Janett Ramirez, and their 13-month-old daughter, Elisa Nuno.
Defendant telephoned his brother, Andrew Alcaraz,[3] and told him the location of the vehicle. Defendant encouraged his brother to 'go get them' and to 'blast them.' Andrew Alcaraz and two fellow gang members pursued the Nunos. One of the three repeatedly fired a weapon at the vehicle occupied by the Nunos. Fernando was killed." (People v. Alcaraz (Apr. 3, 2013, B236508) 2 [nonpub. opn.].)
Alcaraz was charged with murder (§ 187, subd. (a); count 1), three counts of attempted murder (§§ 187, subd. (a) &664; counts 2-4), and shooting at an occupied vehicle (§ 246; count 5). It was alleged with respect to all counts that a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) &(e)(1)), and that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
At trial, Alcaraz was prosecuted for murder as a direct aider and abettor, and as an aider and abettor to shooting at an occupied vehicle of which murder was a natural and probable consequence. The People also presented evidence that Alcaraz conspired to murder, or conspired to shoot at an occupied vehicle, of which murder was a natural and probable consequence.
Alcaraz was convicted of second degree murder and shooting at an occupied vehicle. The jury found true the attached firearm and gang allegations. He was acquitted of attempted murder in counts 2 through 4.
Alcaraz was sentenced to 15 years to life on count 1, with a concurrent sentence of 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) &(e)(1)). On count 5, Alcaraz was sentenced to the upper term of seven years in prison plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) &(e)(1)). The trial court imposed and stayed firearm enhancements under section 12022.53, subdivisions (b) and (c) in both counts.
On appeal, another panel of this court remanded for resentencing on count 5 and other modifications to the abstract of judgment, but otherwise affirmed the convictions.
Alcaraz filed a petition for habeas corpus on February 1, 2019, contending that he was eligible for vacatur and resentencing under former section 1170.95. The trial court construed the habeas corpus petition as a petition for resentencing under former section 1170.95 as well as a petition for habeas corpus, and appointed counsel. The People filed an opposition to the petition for resentencing on June 6, 2019. Alcaraz filed a reply to the opposition on August 21, 2019.
The trial court issued an order to show cause why relief should not be granted under former section 1170.95. Petitioner filed supplemental points and authorities to his petition on December 26, 2019. The People filed a supplemental opposition to the petition on January 17, 2020, requesting that the court reconsider whether Alcaraz made a prima facie case of eligibility.
At a preparation hearing on February 11, 2020, the court ordered the parties to provide further briefing. On April 20, 2020, the People filed supplemental briefing. Alcaraz filed supplemental briefing on June 22, 2020. On July 7, 2020, the People filed a "FINAL MOTION IN OPPOSITION" to the petition. On July 20, 2020, Alcaraz filed a "NEW & IMPROVED & HOPEFULLY FINAL ADDITIONAL SUPPLEMENTAL POINTS & AUTHORITIES" in support of the petition.
In a hearing on July 30, 2020, the court construed the petition for habeas corpus as petition for resentencing under former section 1170.95. The court stated that it would review the petition on the grounds relating to former section 1170.95 resentencing only, and noted that all other grounds and claims alleged in the petition had been withdrawn and were otherwise summarily denied. The court again found that Alcaraz made a prima facie case for relief and issued a second order to show cause superseding its prior order. The order to show cause ordered "each party to prepare a summary of potential evidence outside the record of conviction [that] they will seek to introduce at the hearing on the petition pursuant to [section] 1170.95[, subdivision] (d)(3) and to be prepared to present a proffer for the court" and to share their proffers with each other at an upcoming status hearing.
In September 2020, the People filed a summary of evidence for the entitlement hearing. The People identified the specific portions of the record of conviction, including testimony from Alcaraz's trial, that they intended to rely upon. The People indicated that they would only present evidence from outside the record of conviction in rebuttal to evidence offered by the defense. The defense made no filing. At a status hearing on September 10, 2020, the court inquired whether the defense would be offering any witnesses at the entitlement hearing. Counsel identified Alcaraz's brother, Andrew, and Edgar Nunez, who accompanied Andrew at the time of the shooting. The court reminded defense counsel that it had expected to receive a written submission with a proffer as to what the witnesses would testify to at the entitlement hearing.
Alcaraz and his counsel were present for the entitlement hearing which was held on June 8, 2021. At the hearing, Alcaraz's brother, Andrew, testified on Alcaraz's behalf. Andrew testified that he was solely responsible for the shooting, and had pleaded no contest to murder. Alcaraz was not present when the shooting occurred and had nothing to do with it. Andrew and Alcaraz spoke on the phone around the time of the shooting because Alcaraz wanted to buy marijuana. Alcaraz did not mention that he had been looking for Fernando Nuno earlier that day, and did not give Andrew the victims' location. Andrew did not recall telling the defense investigator that Alcaraz told Andrew he was being followed by the victims. When confronted with an audiotape that impeached this testimony, Andrew admitted that he did say Alcaraz told him he was being followed by the victims, and that the statement was true. However, Andrew did not ask Alcaraz where he was and then drive to that location to avenge Alcaraz. Andrew saw the victims drive past Edgar Nunez's house, Andrew and Nunez followed them, and Andrew "blasted" them. Andrew was familiar with the victims' vehicle because he and Alcaraz were friends with Sergio Nuno, and the victims were part of Sergio's family.
Andrew explained that he was testifying because he wanted to help his brother and tell the truth. Andrew had lied to police officers about the shooting when he was first arrested because he was trying to "get [his] way out of something." He lied about "all kinds of stuff just trying to basically tell people what they wanted to hear." Andrew stated that he shot Fernando Nuno because "I was young and stupid." Andrew admitted that he shot the victim because he was a member of a rival gang, Andrew did not know that there was a "green light out" on Fernando Nuno. Andrew admitted that Edgar Nunez was driving the car from which Andrew shot the victim, but testified that Nunez was not involved-"he didn't make me pull the trigger."
Following Andrew's testimony, defense counsel requested that Alcaraz be permitted to testify and noted that he had previously asked whether Alcaraz could testify and the court had ruled Alcaraz could not. The trial court responded,
Defense counsel emphasized that now that Andrew had testified, Alcaraz wished to testify "to confirm what his brother said in terms of what the purpose was that night . . . some of which would be contrary to what his brother said, but primarily to-"
The trial court interposed, "Wouldn't...
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