Filed 9 / 21 / 21 P. v. Albor 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 AP PEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

J. EFRAI N GONZALEZ

ALBOR,

Defendant and Appellant. 2d Crim. No. B306210

(Super. Ct. No s

. F000368215001, F368215)

(San Luis Obispo County)

J. Efrain Gonz alez Albor appeals the denial of his petition

pursuant to Penal Code section 1170.95. 1 We affirm.

FAC TS

Convictions

In 2006, Albor pled no contest to willful

, deliberate

, and

premediated murder

. (§ 187, su b d. (a).) He admitted the special

circumstance that he committed the murder by lying in wait.

(§ 190.2, su b d

. (a)(15).) Albor also pled no contest to one count of

1 All statutory references are to the Penal Code.2

.

assault with a deadly weapon (§ 245, su b d. (a)(1) ) and that he

personally inflicted great bodily injury during the assault. He

was sentenced to life without the possibility of parole.

Offenses

The facts underlying the offenses are taken f rom the

transcript of the preliminary hearing.

Albor and his wife lived in an apartment with their adult

son. Albor formed the belief that his wife and son were having

sex. In October 20 0 4, he threatened to kill his wife and son.

Albor was arrested and the trial court granted a protective order.

In January 2005, Albor was no longer living with his wife

and son. He broke into their apartment when they were not

home. He went into the bathroom with a knife and hid behind

the shower curtain.

When Albor’ s wife and son returned home , his wife went

into the bathroom. She thought she was alone. Albor came out of

the shower, grabbed his wife from behind

, and held a knife to her

neck. She screamed to her son for help.

When their son came in, Albor thre w hi s wife aside and

threatened their son with the knife. The three of them moved out

into the hallway. Albor’s wife reentered the bathroom and shut

the door. Albor stabbed their son.

Wh en Albor’s wife came out of the bathroom , she saw her

son lying on the bed. Albor stabbed her and beat her before

leaving in their son’ s car. He was arrested the next day. Albor’s

son died from being stabbed once in the chest.

Section 1170.95 Petition

Albor’s section 1170.95 petition was on a form. Albor

checked the box es that said: “A complaint, information , or

indictment was filed against me that allowed the prosecution to3

.

proceed under a theory of felony murder or murder under the

natural and probable consequences doctrine ” ; “ I plead guilty or no

contest to 1st or 2n d degree murder in lieu of going to trial

because I believed I could have been convicted of 1st or 2nd

degree murder at trial pursuant to the felony murder rule or the

natural and probable consequences doctrine ” ; and “I could not

now be convicted of 1st or 2nd degree murder because of changes

made to Penal C ode § § 188 and 189, effective January 1, 2019.”

Albor also requested appointment of counsel

. The trial court appointed counsel to assist Albor with his

petition. Counsel told the court that he was Al bor’s counsel at

the time he pled to the charges. Counsel said that Albor acted

alone

, and he did not believe Albor was entitled to relief.

The trial court denied the petition without an evidentiary

hearing.

DISCUSSION

I

Effective January 1 2019, the Le gislature amended the

definition of murder to eliminate the felony

- murder rule and the

natural and probable consequences theory of malice. (§ § 188,

189; Stats. 2018, ch. 1015, §§ 2, 3 .) As part of the change

, the

Legislature also enacted section 1170.95 to give those who have

been convicted of murder under the felony

- murder rul e or on the

natural and probable consequences theory to have the conviction

vacated and to be resentenced on any remaining counts

. (Stats.

2018, ch. 1015, § 4.)

Section 1170.95, s ubdivision (a) provides:

“(a) A person convicted of felony murder or murder under a

natural and probable consequences theory may file a petition

with the court that sentenced the petitioner to have the4

.

petitioner’s murder conviction vacated and to be rese ntenced on

any remaining counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed

against the petitioner that allowed the prosecution to proceed

under a theory of felony murder or murder under the natural a nd

probable consequences doctrine.

“(2) The petitioner was convicted of first degree or second

degree murder following a trial or accepted a plea offer in lieu of

a trial at which the petitioner could be convicted for first degree

or second degree murder.

“(3) The petitioner could not be convicted of first or second

degree murder because of changes to Section 188 or 189 made

effective January 1, 2019.”

Section 1170.95, subdivision (c) provides for appointment of

counsel on petitioner’s request and requir es the court to

determine whether petitioner has made a prima facie showing

that he qualifies for relief under the statu t e. I f petitioner has

made a prima facie showing

, section 1170.95, subdivision (d)(1)

requires that the court must hold a hearing to de termine whether

to vacate the murder conviction.

II

No Prima Facie Showing

Albor contends the trial court erred in denying his petition

based on facts that do not appear in his petition

. Recently

, in People v

. Lewis (2021) 11 Cal. 5th 952, our

Supreme Cou rt decided that section 1170.95, subdivision (c)

requires the appointment of counsel whenever the petitioner files

a petition conforming to the requirements of section 1170.95,

including a request for counsel. Here the trial court appointed

counsel for Al bor.5

. Our Supreme Court also held that the trial court can rely

on the record of conviction in determining whether petitioner has

shown a prima facie case

. ( P eople v

. Lewis

, supra

, 11 Cal.5th at

p

. 970 .) Here the record of conviction unequivocally shows that

Albor cannot make a prima facie case for relief. Albor acted

alone. He was not convicted under the felony

- murder rule or the

natural and p robable consequences theory.

III

Sixth Amendment Right to Counse l

Albor contends he was denied his Sixth Amend ment right

to counsel when his counsel admitted he (Albor) was not entitled

to relief

.

Our Supreme Court has held that petitioner is not

constitutionally entitled to counsel at the outset of the section

1170.95, subdivision (c) process. ( People v. Lewis

, supra

, 11

Cal

. 5th a t p. 973

. ) That right applies only when petitioner

establishes a pri m a facie case

. ( Ibid. ) Here Albor failed to

establish a prima facie case.

Moreover, any deficiency in counsel’s performance was

harmless by any standard. The recor d of conviction

unequivocally shows Albor is not entitled to relief. Nothing

Albor’s counsel said had any effect.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J. TANGEMAN, J.6

. Hernaldo J. Baltodano, J udge

Superior Court County of San Luis Obispo

______________________________

Christopher Love, under appointment by the Court of

Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E.

Winters, Chief Assistant Attorn ey General, Susan Sullivan

Pithey, Assistant Attorney General, Noah P. Hill, and Heidi

Salerno, Deputy Attorneys General, for Plaintiff and Respondent.