Opinion
A159438
01-26-2021
THE PEOPLE, Plaintiff and Respondent, v. TEARENEY BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51103373)
In 2018, the Legislature passed Senate Bill No. 1437, which enacted Penal Code section 1170.95. Section 1170.95, which became effective on January 1, 2019, is a resentencing statute that is part of a legislative change regarding criminal liability under felony murder and natural and probable consequences theories.
All further statutory references are to the Penal Code unless otherwise indicated.
In January 2019, appellant Teareney Brown petitioned the superior court under section 1170.95 for resentencing of her 2013 conviction for voluntary manslaughter. Brown's conviction stemmed from charges filed in 2011 that she had murdered and robbed Benjamin Peterson Merrill, which led to her pleading no contest to voluntary manslaughter, kidnapping and second degree robbery, admitting to an arming enhancement, and being sentenced to 14 years, 8 months in state prison. The superior court denied her petition on the ground that section 1170.95 does not authorize resentencing for voluntary manslaughter convictions. Brown filed a timely notice of appeal.
Brown contends she was sentenced to 15 years, but court documents state otherwise.
Brown argues on a variety of grounds that the superior court's conclusion is wrong. Aware that we recently agreed with the superior court's conclusion, and considered and rejected many arguments like Brown's, in a 2020 case, People v. Paige (2020) 51 Cal.App.5th 194 (Paige), she asks that we reconsider that decision. She offers no good reason for us to reconsider Paige, and her few additional arguments are unpersuasive. We affirm.
DISCUSSION
I.
Legal Standards
The relevant part of section 1170.95 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 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." (§ 1170.95, subd. (a), italics added.) The part of subdivision (a) that we have italicized limits relief under the statute to "person[s] convicted of felony murder or murder under a natural and probable consequences theory," and the nature of the relief afforded is the right to petition "to have the petitioner's murder conviction vacated."
As we explained in Paige, "Where a question of statutory interpretation based on undisputed facts is presented, we conduct an independent review of the statute in question. [Citation.] 'In doing so, " 'our fundamental task is "to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." ' " ' [Citation.] 'We begin by examining the words of the statute, affording them "their ordinary and usual meaning and viewing them in their statutory context" [citation], for " 'if the statutory language is not ambiguous, then . . . the plain meaning of the language governs.' " ' [Citation.] 'We . . . must, if possible without doing violence to the language and spirit of the law, interpret it so as to harmonize and give effect to all its provisions.' [Citation.]
"We turn to extrinsic aids to assist in our interpretation 'when the statute's language is ambiguous or susceptible of more than one reasonable interpretation.' [Citation.] Extrinsic interpretative aids include the ostensible objects to be achieved and the legislative history. [Citation.] ' " 'Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.' " ' " (Paige, supra, 51 Cal.App.5th at p. 200.)
II.
Analysis
A. By Its Plain Language, Section 1170.95 Does Not Apply to Voluntary Manslaughter Convictions.
Brown first argues that we should reconsider our holding in Paige that section 1170.95, by its plain language, does not apply to voluntary manslaughter.
As we discussed in Paige, our decision is consistent with those of other appellate districts. "As the Fourth Appellate District observed . . . in People v. Turner (2020) 45 Cal.App.5th 428 (Turner), courts, '[r]elying on the clear language of [section 1170.95], . . . have concluded that section 1170.95 is unambiguous and does not provide relief to persons convicted of manslaughter. (People v. Cervantes (2020) 44 Cal.App.5th 884, 887 [Second District] (Cervantes) ["The plain language of the statute is explicit; its scope is limited to murder convictions"]; accord, People v. Flores (2020) 44 Cal.App.5th 985, 993 [Fourth District].) For similar reasons, other courts have rejected claims that the statute extends relief to those convicted of attempted murder. ([People v.] Lopez [2019] 38 Cal.App.5th [1087,] 1104 [Second District], review granted [Nov. 13, 2019, S258175, 2019 Cal. LEXIS 8414]; [People v.] Munoz [2019] 39 Cal.App.5th [738,] 754, review granted [Jan. 2, 2019, S252291, 2019 Cal. LEXIS 108]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1015-1016 [Second District], [review granted March 11, 2020, S259948, 2020 Cal. LEXIS 1683]; People v. Larios (2019) 42 Cal.App.5th 956, 970 [Fifth District], [review granted Feb. 26, 2020, S259983, 2020 Cal. LEXIS 1416].) These decisions reason that the statutory scheme unequivocally applies only to murder convictions. (E.g., Cervantes, supra, 44 Cal.App.5th at p. 887; Munoz, at p. 754.)' (Turner, at pp. 435-436; accord, People v. Sanchez (2020) 48 Cal.App.5th 914 [Fourth District] (Sanchez) [section 1170.95 does not apply to defendants convicted of voluntary manslaughter and rejecting related equal protection challenge].)" (Paige, supra, 51 Cal.App.5th at p. 201.)
Since Paige, the appellate court in People v. Love (2020) 55 Cal.App.5th 273 also concluded that resentencing under section 1170.95 does not extend to attempted murder convictions, based on a review of the statute's legislative history. The Supreme Court granted review in People v. Love on December 16, 2020, S265445, 2020 Cal. LEXIS 8642, and deferred action pending consideration and disposition of People v. Lopez.
Brown disagrees and relies on section 1170,95, subdivision (2), which, again, states, "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." (Italics added.) According to Brown, this italicized language indicates section 1170.95 extends to her circumstances, and must be given effect or it will amount to a "nugatory," which cannot be allowed under Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 (Lungren).
Lungren states, "The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed." (Lungren, supra, 45 Cal.3d at p. 735.)
Paige made a very similar argument, and we rejected it: "Read in isolation, section 1170.95, subdivision (a)(2) could be misinterpreted to be as expansive as Paige argues it is. But read in the context of the statute as a whole, considering both its structure and its language, subdivision (a)(2) cannot reasonably be understood to encompass persons who accept a plea offer in lieu of trial for a crime other than murder. The first paragraph of section 1170.95, subdivision (a) sets forth the basic 'who' and 'what' of the statute—who may seek relief and what they may seek. The 'who' is '[a] person convicted of felony murder or murder under a natural and probable consequences theory' and the 'what' is the opportunity to 'file a petition with the court . . . to have the petitioner's murder conviction vacated.' The provision on which Paige relies, section 1170.95, subdivision (a)(2), is one of three conditions—all of which must also apply before the person convicted of felony murder or natural and probable consequences murder may seek relief under section 1170.95. Given the structure of the statute and the language in the first paragraph of section 1170.95, subdivision (a), the reference to a person who 'accepted a plea offer' in subdivision (a)(2) must necessarily mean a person who accepted a plea to, and was convicted of, first or second degree murder in lieu of a trial at which he could have been convicted of either of those charges. Also relevant are section 1170.95, subdivision (d)(1), which refers to the court determining 'whether to vacate the murder conviction,' and section 1170.95, subdivision (d)(2), which allows the parties to stipulate 'that the petitioner is eligible to have his or her murder conviction vacated.' These provisions also expressly limit their application to murder convictions, and neither they nor any other part of the statute address granting relief from a conviction of any crime other than murder. In short, we agree with Turner and other cases that have concluded 'the petitioning prerequisites and available relief indicate that the Legislature intended to limit relief to those convicted of murder under a theory of felony murder or natural-and-probable-consequences murder' and 'section 1170.95 is unambiguous and does not provide relief to persons convicted of manslaughter.' (Turner, supra, 45 Cal.App.5th at p. 435.)" (Paige, supra, 51 Cal.App.5th at p. 202, fn. omitted.) Upon review, we maintain our analysis in Paige and reject Brown's argument.
As we will discuss, Brown further argues that the legislative history of section 1170.95 supports her interpretation. She does so in part by citing language in the legislative history that tracks the language of section 1170.95, subdivision (a)(2) that we have highlighted. This language in the legislative history is no more persuasive than it is as part of the statute, for the same reasons that we have stated here.
Because the language of section 1170.95 is unambiguous, we need not address Brown's other arguments, such as about its legislative history. Nonetheless, as we noted in Paige, "[e]ven having concluded the statutory language is unambiguous, we may nonetheless consult legislative history to ' "determine whether the literal meaning of a statute comports with its purpose." ' " (Paige, supra, 51 Cal.App.5th at p. 202.) Therefore, we will briefly address her other arguments.
Brown indicates that she is aware of this court's decision in Paige and Cervantes, as well as the line of adverse cases "emanating" from Cervantes. Nonetheless, she "maintains hope that the California Supreme Court's upcoming decision in People v. Lopez (2019) 38 Cal.App.5th 1087 (rev. granted Nov. 13, 2019, S258175), which addresses whether Senate Bill No. 1437 is applicable to attempted murder, will provide support for Brown's argument here." She does not explain the basis for her hope, however, other than to argue against our construction of section 1170.95 in Paige. The Supreme Court's grant of review of Lopez does not indicate we should reconsider our own precedent.
B. Its Legislative History Confirms that Section 1170.95 Does Not Apply to Voluntary Manslaughter Convictions.
Brown next argues that the legislative history of section 1170.95 supports her interpretation, relying heavily on the legislative declaration that "[t]here is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b), italics added.) According to Brown, this language indicates that, while the primary focus of section 1170.95 is on those convicted of murder, the statute is not limited to those persons.
We rejected a very similar argument in Paige: "Paige again focuses on one part of a larger document, here a set of legislative findings, without regard to its other provisions. But in the same uncodified section of the bill that sets forth its general purposes of fairly addressing culpability and reducing prison overcrowding caused by inequitable sentences, the Legislature also made the following findings. 'It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' ([Stats. 2018, ch. 1015, § 1,], subd. (f), italics added.) 'Except as stated in subdivision (e) of Section 189 of the Penal Code, a conviction for murder requires that a person act with malice aforethought. A person's culpability for murder must be premised upon that person's own actions and subjective mens rea.' (Id., subd. (g), italics added.)
"Beyond these legislative findings, which further undermine Paige's argument, the Turner court examined the full history of section 1170.95 and described it in an opinion that makes plain the Legislature's focus on reforming liability for murder and not for any other crime. After discussing at length the year-long history of the Legislature's attempt to reform the law ' "to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under [the] 'natural and probable consequences' doctrine," ' to mitigate 'the harsh sentences for persons convicted of first- and second-degree murder' and to recognize the 'less culpable mental states for liability based on felony murder and natural-and-probable-consequences murder' (Turner, supra, 45 Cal.App.5th at pp. 436-438), the court drew 'a few broad points from this detailed history. First, the Legislature understood the distinction between murder and manslaughter and focused its efforts on revising accomplice liability under a felony murder or natural and probable consequences theory. Second, nearly every committee report and analysis made note of the life sentences imposed for defendants convicted of first- or second-degree murder. One report based cost estimates on the number of inmates serving terms for first- or second-degree murder. Finally, the petitioning procedure was restricted by amendment to apply to persons convicted of felony murder or murder under a natural and probable consequences theory. Viewed together, the legislative history confirms that a defendant who faces murder liability under the natural and probable consequences doctrine, but pleads guilty to manslaughter in lieu of trial, is not eligible for resentencing under section 1170.95.' (Id. at p. 438.)" (Paige, supra, 51 Cal.App.5th at p. 203.)
Brown offers nothing that persuades us to reconsider this analysis. We stand by it.
C. Our Construction of Section 1170.95 Is Not Absurd.
Brown also contends that our interpretation of section 1170.95 is "absurd." Specifically, she argues that "[a]llowing those who have been convicted of murder to obtain relief under section 1170.95 because they were subject to liability under the felony murder rule, but not those who were allowed to plead guilty to voluntary manslaughter instead of murder because they also were subject to felony murder liability but were less culpable, would be absurd." She cites cases in which courts have taken care to avoid absurd interpretations, including regarding section 1170.95 (see In re R.G. (2019) 35 Cal.App.5th 141 [determining that section 1170.95 applies to juvenile proceedings although the statute does not refer to them].) This argument is also unpersuasive. As we discussed in Paige, the Turner court rejected a similar argument:
" ' "Courts may, of course, disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent." ' (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105.) But our interpretation does neither. The uncodified legislative declarations and findings in Senate Bill [No.] 1437 make repeated references to "murder," underscoring the need to amend the natural and probable consequences doctrine "as it relates to murder," but include no references to manslaughter. The petitioning prerequisites and available relief all presuppose a murder conviction. And the legislative history underscores that the Legislature did not intend to extend relief to persons like Turner, who were convicted of manslaughter by plea.
" 'Nor does our construction produce absurdity by undermining the Legislature's goal to calibrate punishment to culpability. The punishment for manslaughter is already less than that imposed for first- or second-degree murder, and the determinate sentencing ranges of 3, 6, or 11 years for voluntary manslaughter and 2, 3 or 4 years for involuntary manslaughter permit a sentencing judge to make punishment commensurate with a defendant's culpability based on aggravating and mitigating factors. (Pen. Code, § 193, subds. (a)-(b); see Munoz, supra, 39 Cal.App.5th at pp. 757-758, rev. granted.) Providing relief solely to defendants convicted of murder under a felony-murder or natural and probable consequences theory does not conflict with the Legislature's stated objective to make "statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).)' (Turner, supra, 45 Cal.App.5th at pp. 438-439; see also People v. Flores, supra, 44 Cal.App.5th at p. 993 [although manslaughter is a lesser included offense of murder, it is ' "clearly a separate offense," ' and section 1170.95 'limits relief only to qualifying persons who were convicted [of] murder'].)" (Paige, supra, 51 Cal.App.5th at p. 204.)
Once more, Brown offers nothing that persuades us to reconsider this analysis.
D. Our Construction of Section 1170.95 Does Not Create Constitutional Concerns.
Brown further argues that we should adopt her interpretation of section 1170.95 in order to avoid constitutional concerns regarding equal protection and due process, citing In re J.C. (2014) 228 Cal.App.4th 1394, 1400-1401 ("Statutes are presumed constitutional and should be construed to uphold their constitutionality unless the opposite 'clearly, positively and unmistakably appears' ") and People v. Garcia (2017) 2 Cal.5th 792, 815 ("we will construe statutes to avoid serious constitutional problems if such a reading is fairly possible" (conc. opn. of Kruger, J.)).
Regarding equal protection, Brown argues that, "when two defendants are subject to prosecution under the felony murder rule merely because they were minor participants in a robbery, who acted without reckless indifference to human life, and a codefendant shot and killed someone, they are similarly situated. There can be no rational basis for affording one the possibility of relief under section 1170.95 and not the other. Thus, the difference in classification cannot be upheld."
As we discussed in Paige, in Cervantes, an opinion authored by Justice Arthur Gilbert, the Second District rejected a similar equal protection argument, as did the Sanchez court, based on Cervantes. (Paige, supra, 51 Cal.App.5th at pp. 205-206.) As we did in Paige (ibid.), we repeat the Cervantes analysis:
"The first step in an equal protection analysis is to determine whether the defendant is similarly situated with those who are entitled to the statutory benefit. [Citation.] Cervantes was convicted of voluntary manslaughter, a different crime from murder, which carries a different punishment. Normally 'offenders who commit different crimes are not similarly situated' for equal protection purposes. [Citation.] '[O]nly those persons who are similarly situated are protected from invidiously disparate treatment.' [Citation.] [¶] . . . [¶]
"When the Legislature reforms one area of the law, it is not required to reform other areas of the law. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 488.) It may elect to make reforms ' " 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' " ' (Ibid.) Here the legislative focus was centered on the unfairness of the felony murder rule. The Legislature could rationally decide to change the law in this area and not be currently concerned with crimes not involved with that rule. (Ibid.) It also could reasonably decide that the punishment for voluntary manslaughter was appropriate, but the punishment for murder based on the felony murder rule could be excessive and reform was needed only there. (Williams v. Illinois (1970) 399 U.S. 235, 241 ['A State has wide latitude in fixing the punishment for state crimes'].) Legislators in making this choice could also consider a variety of other factors including the number of prisoners subject to the change and its impact on the 'administration of justice.' [Citation.]
"The decision not to include manslaughter in section 1170.95 falls within the Legislature's 'line-drawing' authority as a rational choice that is not constitutionally prohibited. (People v. Chatman (2018) 4 Cal.5th 277, 283.) '[T]he Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses.' (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887.) A classification is not arbitrary or irrational simply because it is 'underinclusive.' (Ibid.) 'A criminal defendant has no vested interest " 'in a specific term of imprisonment or in the designation [of] a particular crime [he or she] receives.' " ' (People v. Turnage (2012) 55 Cal.4th 62, 74.) 'Courts routinely decline to intrude upon the "broad discretion" such policy judgments entail.' (Ibid.)" (Cervantes, supra, 44 Cal.App.5th at pp. 888-889.)
As we noted in Paige, the Sanchez court "likewise addressed an equal protection challenge to section 1170.95 as it has been interpreted, and agreed with the analysis in Cervantes." (Paige, supra, 51 Cal.App.5th at p. 206, citing Sanchez, supra, 48 Cal.App.5th at pp. 920-921.) The Sanchez court wrote, "We reject Sanchez's assertion that the distinction [between persons convicted of murder under a felony murder or natural and probable consequences doctrine and persons who were charged with murder under one of those theories and pled to voluntary manslaughter] was not reasonable in light of the Legislature's intent to save money on the costs of incarceration. Whether expanding section 1170.95 to include those who pled guilty to voluntary manslaughter would result in more savings is irrelevant. That is exactly the type of fiscal line-drawing and policymaking decision that the Legislature is free to make. ([People v.] Rajanayagam [2012] 211 Cal.App.4th [42,] 55-56.) It does not demonstrate that it was irrational to distinguish between those convicted of murder by plea and those convicted of voluntary manslaughter by plea." (Sanchez, at p. 921.)
Once more, Brown offers nothing that persuades us to reconsider our decision to follow Cervantes and Sanchez. Her equal protection argument lacks merit.
Regarding due process, Brown merely argues that it is "fundamentally unfair" to treat her "more harshly than other defendants who had similar roles in a robbery in which an accomplice killed someone" just because she was "fortunate enough to obtain a plea bargain for a manslaughter conviction in order to avoid a first-degree felony murder conviction." The only case she cites for this proposition is Salas v. Cortez (1979) 24 Cal.3d 22, which considered whether due process required appointment of counsel in proceedings to establish paternity (id. at p. 27), a subject matter and context far removed from that before us. Brown's due process argument lacks merit.
E. Brown's Other Arguments Lack Merit.
Brown makes a couple of additional arguments that we did not address in Paige. Neither is persuasive.
First, Brown argues that we must presume that, at the time the Legislature adopted section 1170.95, it was aware of two other statutes that contained language which more neatly limited their applications to convictions reached "by trial or plea," and that we must harmonize section 1170.95 with those statutes. She relies on In re R.G., supra, 35 Cal.App.5th 141, in which the court noted in the course of determining that section 1170.95 applies to juvenile proceedings, "[w]e presume the Legislature 'was aware of existing related laws' when it enacted section 1170.95, and that it 'intended to maintain a consistent body of rules.' [Citation.] We also presume the Legislature was aware of judicial construction of those laws and that it intended the same construction to apply to related laws with identical or substantially similar language." (In re R.G., at p. 146.) Brown contends that, "if the Legislature had wished to limit [section 1170.95,] subdivision (a)(2) to murder convictions that were reached by either trial or plea, it could have done as it has in other statutes and used the language, 'whether by trial or plea,' following the reference to a murder conviction. (See, e.g., §§ 1170.18, subd. (a) [recall of sentences for felonies that have been changed to misdemeanors][;] 1170.126, subd. (b) [recall of life sentences imposed under the Three Strikes laws based upon crimes that no longer are serious or violent felonies].) In other words, the second criterion for relief set forth in subdivision (a)(2) of section 1170.95 could have been drafted to read as follows: 'The petitioner was convicted of first or second degree murder, whether by trial or plea.' "
This argument is fallacious. The interpretative tools Brown cites do not overcome the plain language of section 1170.95, subdivision (a), which makes clear that the resentencing applies only to murder convictions. Second, the structure of sections 1170.18 and 1170.126 are dissimilar to the structure of section 1170.95, in which there is a prefatory clause stating who may petition (a person convicted of felony murder or murder under a natural and probable consequences theory) followed by three conditions all of which must also apply. The structure of section 1170.95 leaves no doubt that subdivisions (a)(1), (a)(2) and (a)(3) are the conditions that must apply before a person convicted of felony murder or natural and probable consequences murder may petition under the statute. Finally, there is no rule of which we are aware that requires the Legislature to express itself in identical terms in every statute. As long as the statutory language is clear, the fact that another statute uses different language is of no moment.
Brown also argues that we should apply the rule of lenity. (See, e.g., People v. Cornett (2012) 53 Cal.4th 1261, 1271 [when "there are two plausible interpretations of the statutory language," "courts resolve doubts as to the meaning of a statute in a criminal defendant's favor"].) According to Brown, "the entire context of Senate Bill No. 1437 and section 1170.95, an interpretation that includes manslaughter is at least as plausible as an interpretation that does not include that offense." This rule does not apply because, as indicated by our discussion and the numerous cases we have cited, Brown's interpretation is not plausible.
DISPOSITION
The order appealed from is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.