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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

J. EFRAIN GONZALEZ 

ALBOR,

 Defendant and Appellant.

2d Crim. No. B306210

(Super. Ct. Nos. 

F000368215001, F368215)

(San Luis Obispo County)

J. Efrain Gonzalez Albor appeals the denial of his petition 

pursuant to Penal Code section 1170.95.1 We affirm.

FACTS

Convictions

In 2006, Albor pled no contest to willful, deliberate, and 

premediated murder. (§ 187, subd. (a).) He admitted the special 

circumstance that he committed the murder by lying in wait. 

(§ 190.2, subd. (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, subd. (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 from 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 2004, 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 threw his 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.

When 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 boxes that said: “A complaint, information, or 

indictment was filed against me that allowed the prosecution to 
3.

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 2nd 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 Code §§ 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 Albor’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 Legislature 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 rule 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, subdivision (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 the
4.

petitioner’s murder conviction vacated and to be resentenced 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 and

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 requires the court to

determine whether petitioner has made a prima facie showing

that he qualifies for relief under the statute. If petitioner has

made a prima facie showing, section 1170.95, subdivision (d)(1)

requires that the court must hold a hearing to determine 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 Court 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 Albor.
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. (People 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 probable consequences theory.

III

Sixth Amendment Right to Counsel

Albor contends he was denied his Sixth Amendment 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 at p. 973.) That right applies only when petitioner

establishes a prima 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 record 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, Judge

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 Attorney General, Susan Sullivan

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

Salerno, Deputy Attorneys General, for Plaintiff and Respondent.