Opinion
B297208
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. CASEY MACOY DAVID, Defendant and Appellant.
Jay Leiderman Law and Jason Leiderman, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA315610) APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Jay Leiderman Law and Jason Leiderman, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Casey David was convicted, by no contest plea, of attempted murder, and admitted gang and firearm allegations. Years later, he filed a petition for resentencing, under the recently-adopted Penal Code section 1170.95, which permits defendants convicted of murder under certain circumstances to seek resentencing. The trial court denied defendant's petition, on the basis that he had been convicted of attempted murder, not murder, and was therefore ineligible for relief under the language of the statute. Defendant appeals; we affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We take our discussion of the facts of the offense from the police report, which defendant attached as an exhibit to his petition for resentencing, and defendant's brief in this appeal. The trial court did not rely on the underlying facts of the offense in its denial of the petition; nor do we.
Although defendant was convicted of attempted murder, it was in connection with a crime in which the victim died, and defendant had originally been charged with his murder. Other defendants were convicted of murder. The victim's murder had been ordered by the victim's older brother, whom defendant describes as a gang "shot caller." Angry over some real or perceived slight, the shot caller gathered a number of fellow gang members, including defendant, and "advised that they were all going to locate and kill the victim." The victim was found in the bedroom of a house, playing cards with others. Two of the conspirators entered, greeted the victim, and told him someone outside wanted to talk to him. When he left the room, the victim was confronted by the gunman, who fired several shots at him. The victim fled back to the bedroom while the gunman chased him, continuing to fire. He died of his wounds. Defendant's role was that of getaway driver; he waited outside the house in his vehicle, and drove the shooter and the other two men from the scene. Defendant subsequently confirmed to police that he and the others had been ordered by the shot caller to kill the victim, but claimed that the shot caller "had threatened to kill him and his family as well as that of the other involved parties, if he did not commit the murder."
2. Defendant's Plea
In 2007, defendant was charged with murder, a gang enhancement (§ 186.22, subd. (b)(1)(C)) and a firearm enhancement (§ 12022.53, subds. (c) & (e)(1)). On January 9, 2008, the parties agreed to a plea to attempted murder, for a sentence of 29 years (consisting of the 9-year high term for attempted murder plus 20 years for the firearm enhancement).
According to defendant's brief on appeal, the parties had originally agreed to a plea to voluntary manslaughter and a sentence of 31 years, but the parties had overlooked that the firearm enhancement did not apply to manslaughter, so the agreement was modified to provide for attempted murder, resulting in a 2-year shorter term.
3. Defendant's Petition for Resentencing
In 2018, the Legislature adopted Senate Bill No. (SB) 1437 which, among other things, "significantly restricted potential aider and abettor liability, as well as coconspirator liability, for murder under the natural and probable consequences doctrine." (People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019.) In addition, SB 1437 enacted a new statutory procedure, codified in section 1170.95, by which a defendant convicted of murder under the natural and probable consequences doctrine could seek resentencing under the new, narrower, version of the law.
On February 8, 2019, defendant filed a petition for resentencing under section 1170.95. In his petition, defendant explained that he had pled to "attempted murder to arrange for a pa[r]ticular sentence. Fact basis was murder." He took the position that he was therefore eligible for relief under the statute.
The trial court denied the petition because defendant had been convicted by plea of attempted murder, but statutory relief under section 1170.95 was available by its express terms only to defendants convicted of murder.
Defendant filed a timely notice of appeal.
DISCUSSION
SB 1437 " ' "amend[s] 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).)' [Citation.]" (People v. Torres (2020) 46 Cal.App.5th 1168, ___ [260 Cal.Rptr.3d 467, 468-469].) A defendant who has previously been convicted of murder, but would no longer be subject to murder liability under the law as amended by SB 1437, may seek resentencing pursuant to the procedure established by section 1170.95. If the defendant prevails, and had been charged with murder "generically, and the target offense was not charged, the petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subd. (e).)
As to eligibility, section 1170.95 provides, in pertinent part: "(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."
Once a petition is filed, there follows a multi-step process by which the court determines whether the petition is facially sufficient, and, if so, whether the petitioner has made a prima facie showing that he falls within the provisions of statutory eligibility. (People v. Torres, supra, 46 Cal.App.5th at p. ___ .) If the court determines the petitioner is ineligible for relief as a matter of law, the petition is denied; if not, the court proceeds to the next step. (Id. at p. ___ .) Here, the trial court denied the petition on the basis that defendant was ineligible as a matter of law, because he was not convicted of murder. Defendant does not dispute he was convicted of attempted murder.
The trial court's order was indisputably correct. Our research has disclosed five published opinions that address whether attempted murder is covered under section 1170.95. Although there is a disagreement as to whether some of SB 1437's substantive changes to the law of felony murder and natural and probable consequences apply to attempted murder convictions in cases still on direct appeal, all the authorities agree that the remedy provided by section 1170.95 is not available to defendants convicted of attempted murder.
In People v. Lopez, supra, 38 Cal.App.5th 1087, review granted November 13, 2019, Division Seven of the Second Appellate District concluded SB 1437 does not apply to attempted murder, because its statutory language is limited to murder. (Lopez, at pp. 1104-1105.) In People v. Munoz (2019) 39 Cal.App.5th 738, 754-755 review granted November 26, 2019, Division Three of the Second Appellate District agreed. In People v. Dennis (2020) ___ Cal.App.5th ___ Division Three of the Fourth Appellate District also sided with Lopez and Munoz.
A series of three cases, all from the Fifth Appellate District, take a different view but one not relevant to the present appeal. Those cases interpret SB 1437 as abrogating the natural and probable consequences doctrine as a theory of accomplice liability for attempted murder, but only if raised by direct appeal from the underlying judgment, not by way of a section 1170.95 petition. All of the courts are in agreement that the remedy provided by section 1170.95 for defendants whose convictions have already become final applies only to defendants convicted of murder, not attempted murder. (People v. Sanchez (2020) 46 Cal.App.5th 637, ___, petn. for review filed Apr. 21, 2020 [issue was on direct appeal]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1016-1018 review granted Mar. 11, 2020 [although the new law applies on direct appeal, section 1107.95 does not apply to attempted murder]; People v. Larios (2019) 42 Cal.App.5th 956, 969-970 review granted Feb. 26, 2020 [same].) The dispute over whether SB 1437 applies to attempted murder cases on direct appeal will be resolved by our Supreme Court, but it is not relevant to the present appeal.
What is relevant is that section 1170.95 - in words as plain as can be - applies only to murder convictions by trial or by plea: "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 . . . ." (§ 1170.95, subd. (a), italics added.) (See People v. Medrano, supra, 42 Cal.App.5th at pp. 1016-1018; People v. Larios, supra, 42 Cal.App.5th at pp. 969-970; People v. Munoz, supra, 39 Cal.App.5th at p. 754; People v. Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.)
Defendant briefly attempts to distinguish this line of authority, by arguing that his case is different because although he entered a plea to attempted murder, "the crime committed was murder." Defendant points out that he had originally been charged with murder, and likely was going to be convicted of murder if he had gone to trial. From that supposition, he argues he should receive the benefit of section 1170.95. Defendant relies on a single phrase from section 1170.95. Specifically, he focuses on the language from subdivision (a)(2) which provides that the statute applies if the defendant "accepted a plea offer in lieu of a trial at which the petitioner could be convicted of first or second degree murder." Literally, defendant did accept a plea in exchange for a murder dismissal. But that clause does not stand alone. It provides an alternative to a conviction of murder after trial. Neither "attempted murder" nor "attempt to commit a crime" is found in the statute, and the introductory clause expressly requires a conviction of murder. Defendant's argument that section 1170.95 applies when a murder charge is dismissed following a plea to a murder-related charge was rejected in People v. Flores (2020) 44 Cal.App.5th 985. There, a defendant who was charged with murder but pled guilty to voluntary manslaughter petitioned under section 1170.95. The court explained, "We reject Flores's interpretation of section 1170.95, which places outsized importance on a single clause to the exclusion of the provision's other language. This violates well-settled rules of construction, which caution that we must not 'consider the statutory words in isolation; we must read the language as it is placed in the code section, and in the context of the entire statutory scheme.' [Citation.] As discussed, the remaining portions of section 1170.95 repeatedly and exclusively refer to murder, not manslaughter. [¶] In any event, the statutory language on which Flores relies does not 'necessarily suggest' that section 1170.95 is available to persons convicted of voluntary manslaughter because criminal defendants can, and do, plead guilty to the crime of murder. As the People persuasively argue, a defendant may plead guilty to murder for a variety of reasons, including 'to (1) relieve his conscience through confession and atonement, (2) gain some tactical advantage, including a less severe penalty [with fewer sentencing enhancements], (3) avoid the "agony and expense" of an unnecessary and prolonged trial, where the evidence of guilt is overwhelming [citation], or (4) spare friends and relatives the spectacle and embarrassment, and perhaps publicity, of a public trial [citation].' [Citation.]" (Id. at p. 995.)
In short, a single reference to a plea does not authorize a defendant to petition under 1170.95 when he or she has pled to attempted murder, a crime nowhere mentioned in the statute. The trial correctly denied the petition.
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.