Filed 10/20/20 P. v. Alfonsoruiz CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ARMANDO 

ALFONSORUIZ,

Defendant and Appellant.

 B303729

 (Los Angeles County

 Super. Ct. No. BA346845)

APPEAL from an order of the Superior Court of 

Los Angeles County, Judith L. Champagne, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Appellant Jose Alfonsoruiz appeals the summary denial of 

his petition for resentencing under Penal Code section 1170.95.1

Appellant’s appointed counsel filed a brief raising no issues and 

asking us to review the record independently, and appellant has 

filed a supplemental brief. Following our independent 

examination of the entire record pursuant to People v. Wende

(1979) 25 Cal.3d 436 (Wende), we conclude that no arguable 

issues exist. Accordingly, we affirm. 

BACKGROUND

In 2010, a jury convicted appellant of three counts of 

aggravated sexual assault of a child (§ 269, subd. (a)(1)), three 

counts of forcible rape (§ 261, subd. (a)(2)), three counts of forcible 

oral copulation (§ 288a, subd. (c)(2)), one count of forcible lewd act 

upon a child (§ 288, subd. (b)(1)), and one lesser included offense

of lewd act upon a child aged 14 or 15 (§ 288, subd. (c)(1)). The 

jury acquitted appellant of two counts of forcible rape (§ 261, 

subd. (a)(2)) and one count of forcible oral copulation (§ 288a, 

subd. (c)(2)). The jury was unable to reach a verdict on three 

counts of forcible oral copulation (§ 288a, subd. (c)(2)), two counts 

of forcible rape (§ 261, subd. (a)(2)), and one count of assault with 

a deadly weapon (§ 245, subd. (a)(1)); the trial court declared a 

mistrial as to those counts and dismissed them at the request of 

the prosecution. The trial court sentenced appellant to three 

indeterminate terms of 15 years to life, plus an aggregate 

determinate term of 59 years. We affirmed appellant’s 

convictions and sentence on direct appeal. (People v. Alfonsoruiz 

(Sept. 27, 2011, No. B223811) [nonpub. opn.].)

1All further statutory references are to the Penal Code

unless otherwise indicated.
3

On October 30, 2019, appellant filed a form petition for 

resentencing under section 1170.95. He checked boxes affirming 

that he was charged with and convicted of murder and asserting 

that he could not now be convicted of murder due to recent 

changes made to sections 188 and 189. Appellant also checked a 

box requesting the appointment of counsel. 

Appellant attached numerous documents to his petition. 

Among them were excerpts of minute orders from his pretrial and 

trial proceedings, his legal status summary, copies of sections 

1381 and 1382,2 a property receipt issued in connection with 

appellant’s September 22, 2008 arrest, and a single page of what 

appears to be a treatise addressing parole. Appellant also 

attached several newspaper articles and case and prison 

documents pertaining to other persons

On December 30, 2019, the trial court summarily denied 

the petition without appointing counsel for appellant. The trial 

court’s minute order states: “The court finds the defendant was 

not convicted of murder and, therefore, is ineligible for relief 

under Penal Code section 1170.95. The petition is summarily 

denied.” Appellant timely filed a notice of appeal on January 13, 

2020. 

DISCUSSION 

On June 26, 2020, appellant’s appointed appellate counsel 

filed an opening brief raising no issues and asking us to review 

the record independently. (Wende, supra, 25 Cal.3d 436). 

Counsel advised appellant of his right to file a supplemental 

brief, and we sent appellant a letter containing the same 

advisement on June 30, 2020. 

2Both sections are in the chapter titled “Dismissal of the 

Action for Want of Prosecution or Otherwise.” 
4

On July 27, 2020, appellant filed a two-page handwritten 

brief asserting that police, prosecutorial, and judicial misconduct 

occurred during his pretrial and trial proceedings. Specifically, 

he contends that police failed to produce an arrest warrant, did 

not read him his Miranda3 rights or provide him with counsel, 

and “falsified allegations just to have charges” due to the absence 

of a “DNA expert.” Appellant contends the prosecutor committed 

misconduct by filing “multiple charges and same & similar 

offense PC 667.6 which never occurred and no exculpatory 

material evidence but argued hearsay and false evidence without 

presenting DNA expert doctor’s [sic] during jury trial with rape 

and aggravated charges.” Finally, he contends the court engaged 

in “judicial abuse” because “sentencing is unprecedented 104 yrs 

to life in prison with multiple offense and same & similar the 

judge know’s [sic] that this was a mistrial deadlock with same & 

similar offenses, but never had a chance for another jury trial but 

sentenced by the court own motion is a prejudice [sic].”

Appellant attached to his brief an amicus brief the Attorney 

General filed in a different case, several of the documents filed 

with his petition, and copies of sections 189 and 680.4 In 

handwritten notations to these documents, appellant asserts that 

the bail in his case was “unprecedented” and unfair. He further 

suggests that the double jeopardy statute was violated because 

he was convicted of “same and similar offenses,” and that he 

should have received a second jury trial due to the mistried 

counts. 

3Miranda v. Arizona (1966) 384 U.S. 436. 

4Section 189 sets forth the degrees of murder. Section 680 

is the “Sexual Assault Victims’ DNA Bill of Rights.” 
5

Appellant’s brief explicitly states that he is attempting to 

use this appeal as a vehicle to “challenge this wrongful 

conviction.” However, the order at issue in this appeal is the 

order denying his section 1170.95 petition, not the long-final 

judgment of conviction. Appellant’s arguments do not address 

the relevant ruling; instead, they focus on issues outside the 

scope of this appeal. “Perhaps the most fundamental rule of 

appellate law is that the judgment challenged on appeal is 

presumed correct, and it is the appellant’s burden to 

affirmatively demonstrate error.” (People v. Sanghera (2006) 139 

Cal.App.4th 1567, 1573.) Appellant has not carried that burden 

here. His challenges to the validity of his underlying conviction 

do not establish that he was entitled to resentencing under 

section 1170.95. (See People v. Nguyen (2020) 53 Cal.App.5th 

1154, ___ (2020 WL 5015289 at pp. *8-*9).) 

The trial court correctly concluded that appellant was 

ineligible for relief under section 1170.95 as a matter of law. 

“By its terms, section 1170.95 authorizes only a person who was 

‘convicted of felony murder or murder under a natural and 

probable consequences theory [to] file a petition with the court 

that sentenced the petitioner to have the petitioner’s murder

conviction vacated . . . .’ ([§ 1170.95], subd. (a), italics added.)” 

(People v. Flores (2020) 44 Cal.App.5th 985, 992-993.) “Through 

its repeated and exclusive references to murder, the plain 

language of section 1170.95 limits relief only to qualifying 

persons who were convicted of murder. 1170.95 does not 

mention, and thus does not provide relief to, persons convicted of” 

other crimes. (Id. at p. 993; see also People v. Cervantes (2020) 44 

Cal.App.5th 884, 887 [“The plain language of the statute is 

explicit; its scope is limited to murder convictions.”].) The minute 
6

orders appellant submitted with his petition showed that he was 

not convicted of murder despite his representations to the 

contrary.5 The trial court therefore properly denied his petition 

without appointing counsel or holding further proceedings. 

(People v. Edwards (2020) 48 Cal.App.5th 666, 674-675.)

We have examined the entire record and are satisfied that 

no arguable issues exist and that appellant has, by virtue of 

counsel’s compliance with the Wende procedure and our review of 

the record, received adequate and effective appellate review of 

the order. (Smith v. Robbins (2000) 528 U.S. 259, 278.)

DISPOSITION

The order denying appellant’s petition is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J.

5In one of the attachments to his supplemental brief, 

appellant underlines the portion of section 189 stating that a 

killing committed during the perpetration or attempted 

perpetration of certain enumerated crimes is murder of the first 

degree. Although appellant was convicted of several crimes listed 

there, including rape and violations of section 288 and 288a, 

there is no indication that he killed anyone during the 

commission of those crimes. He thus did not commit murder of 

any degree.