People v. Avalos CA2/4

INTRODUCTION

In 1981, Richard Peter Avalos was convicted of first degree murder following a robbery attempt in which law enforcement shot and killed a victim Avalos was using as a human shield. A provocative act theory of murder was the only theory presented at trial. In 2022, Avalos moved for resentencing under Penal Code section 1172.6.1 The trial court denied Avalos’s petition at the prima facie stage. Avalos argues on appeal that his jury could have relied on a traditional felony murder theory to convict him. However, the record and the law make clear that a provocative act theory was the only available theory under the circumstances of this case. Avalos therefore has not demonstrated error, so we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Conviction and direct appeal As stated in Avalos’s direct appeal,2 “The offenses charged all arose out of an [April 1980] attempt by defendant to rob a donut shop. In the course of that event, defendant attempted to rob Jose Luis Trevino (the victim named in count I), his mother and his sister. During the attempted robbery, he compelled the

All undesignated section references are to the Penal Code.

People v. Avalos…