Opinion
G057659
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. PABLO ROBERT ANDREW GALVEZ, Defendant and Appellant.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF0356) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 2017, prosecutors charged defendant Pablo Robert Andrew Galvez with two counts of murder, related crimes, and enhancements. Galvez pleaded guilty to one count of voluntary manslaughter, a related crime, and enhancements. The trial court imposed a negotiated sentence of 14 years, eight months in state prison.
In 2018, the Legislature enacted a statute that generally allowed aiders and abettors previously convicted of murder under a felony-murder theory, or under the natural and probable consequences doctrine, to petition the court for relief. (Pen. Code, § 1170.95, added by Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)
Further undesignated statutory references are to the Penal Code.
In 2019, Galvez filed a section 1170.95 petition for relief, claiming he was convicted of murder. The trial court summarily denied the petition because Galvez was not, in fact, convicted of murder, he pleaded guilty to manslaughter.
On appeal, Galvez argues that the trial court improperly denied his petition for resentencing. We disagree and affirm the order of the court.
I
PROCEDURAL HISTORY
On January 29, 2013, the prosecution filed a complaint charging Galvez and a codefendant with two counts of murder, and active gang participation. The information alleged related gang and firearm enhancements. The information further alleged special circumstances.
On June 23, 2017, Galvez pleaded guilty to three crimes: voluntary manslaughter, active gang participation, and assault with a firearm. Galvez admitted he and two other gang members "killed John Doe and I aided and abett[ed] in assaulting Jane Doe with a firearm." Galvez admitted two gang allegations. The trial court imposed a negotiated sentence of 14 years, eight months in state prison.
On March 6, 2019, Galvez filed a petition under section 1170.95. Galvez checked a box, declaring: "I pled 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." (Italics added.) Galvez further declared: "I request that this court appoint counsel for me during this re-sentencing process."
On March 11, 2019, the trial court conducted a hearing concerning Galvez's section 1170.95 petition. Neither the parties, nor a court reporter, were present. The court summarily denied the petition. According to the court's minute order: "The petition does not set forth a prima face [sic] case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder . . . ." Galvez appeals.
II
DISCUSSION
Galvez argues the trial court's order denying his petition for resentencing was in error based on his reading of section 1170.95. We disagree.
This is a pure legal issue involving statutory interpretation; therefore, our review is de novo. (See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) We will first state the general principles of statutory interpretation, then summarize the language of section 1170.95, and then analyze Galvez's respective arguments. A. Principles of Statutory Interpretation
When construing a statute, our goal is to ascertain legislative intent to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) The words of a statute are to be given their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.) If the statutory language is unambiguous, "we presume the Legislature meant what it said, and the plain meaning of the statute governs." (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
Courts may neither insert words nor delete words in an unambiguous statute; the drafting of statutes is solely a legislative power. (People v. Hunt (1999) 74 Cal.App.4th 939, 945-946.) "In construing this, or any, statute, our office is simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language." (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)
"Statutory language is not considered in isolation. Rather, we 'instead interpret the statute as a whole, so as to make sense of the entire statutory scheme.'" (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) We must also "interpret legislative enactments so as to avoid absurd results." (People v. Torres (2013) 213 Cal.App.4th 1151, 1158.) B. The Statutory Framework and Language of Section 1170 .95
A murder is an unlawful killing with malice. "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Under the felony-murder rule, a defendant can be convicted of murder without a finding of malice if a victim is killed during a designated inherently dangerous felony. (See CALCRIM No. 540A ["A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent"].)
Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. (§ 31.) An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) Liability for intentional, target offenses is known as "direct" aider and abettor liability; liability for unintentional, nontarget offenses is known as the ""'natural and probable consequences" doctrine.'" (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) 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).) As a result, the Legislature amended sections 188 (defining malice), and 189 (defining the degrees of murder).
The Legislature also added section 1170.95 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019), which provides a procedure for aiders and abettors to challenge their previous murder convictions under prior legal theories that are no longer valid. Section 1170.95 designates: 1) the threshold requirements for relief; 2) the requirements of the petition; and 3) the procedural requirements.
1. The Threshold Requirements for Relief
"(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.)
2. The Requirements of the Petition
"(b)(1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney . . . , and on the attorney who represented the petitioner in the . . . county where the petitioner was convicted. . . . The petition shall include all of the following:
"(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).
"(B) The . . . court case number and year of the petitioner's conviction.
"(C) Whether the petitioner requests the appointment of counsel.
"(2) If any of the information required by this subdivision is missing from the petition . . . , the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(1),(2), italics added.)
3. The Procedural Requirements
"(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days . . . and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.
"(d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner . . . , provided that the new sentence, if any, is not greater than the initial sentence. . . .
"(2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner.
"(3) At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, . . . the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1170.95, subds. (c) & (d).) C. Legal Analysis
Galvez argues: 1) section 1170.95 applies to convictions for manslaughter; 2) equal protection principles required the court to grant his section 1170.95 petition; and 3) the court erred in failing to appoint him counsel prior to its ruling.
1. Section 1170.95 only applies to convictions for murder.
Section 1170.95 refers only to convictions for murder; section 1170.95 does not refer to any other convictions for any other crimes. Moreover, none of the other sections affected by Senate Bill No. 1437 make any reference to any other crimes. (§§ 188, 189, 1170.95.) "If the plain language of the statute is clear and unambiguous, [the courts'] inquiry ends, and [one] need not embark on judicial construction." (People v. Johnson (2002) 28 Cal.4th 240, 244.)
Section 1170.95 does not apply to a defendant convicted of attempted murder. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175.) In Lopez, the appellate court concluded the "Legislature's obvious intent to exclude attempted murder" was evidenced by the language of section 1170.95 itself, as it limits its application to murder convictions. (Lopez, at pp. 1104-1105.) The court noted the plain language of the Legislature consistently refers to relief being available to only those defendants charged with first or second degree felony murder or murder under the natural and probable consequences doctrine, and to only those defendants sentenced to first or second degree murder. (Id. at p. 1105.)
We agree with the analysis of the Lopez court. The language of the statute is unambiguous. Section 1170.95 only allows defendants convicted of first or second degree murder to petition for relief. Every other appellate court that has considered the issue in a published opinion has come to the same conclusion. (See accord, People v. Turner (2020) 45 Cal.App.5th 428 [section 1170.95 does not apply to defendants convicted of manslaughter]; People v. Flores (2020) 44 Cal.App.5th 985 [same]; People v. Cervantes (2020) 44 Cal.App.5th 884 [same]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, review granted Mar. 11, 2020, S259948 ["petitioning procedure added in section 1170.95 does not apply to attempted murder"]; People v. Larios (2019) 42 Cal.App.5th 956, review granted Feb. 26, 2020, S259983 [amendment of homicide statute applies to defendants currently charged with attempted murder, but section 1170.95 does not apply to defendants previously convicted of attempted murder]; People v. Munoz (2019) 39 Cal.App.5th 738, 753-754, review granted Nov. 26, 2019, S258234 [section 1170.95 does not apply to defendants convicted of attempted murder].)
In this case, Galvez was convicted of manslaughter, not murder. Thus, the trial court did not err by summarily denying his section 1170.95 petition.
Galvez argues section 1170.95 also applies to defendants convicted of manslaughter because a petitioner who seeks relief under section 1170.95 must establish, among other things, that he or she "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." (§ 1170.95, subd. (a)(2), italics added.) Galvez's proposed interpretation is that this subdivision allows those charged with murder, but who plead guilty to lesser crimes, to petition for relief. We disagree. The first portion of section 1170.95 subdivision (a), unequivocally requires a petitioner to have been "convicted" of either "felony murder or murder under a natural and probable consequences theory" in order to be eligible for relief. Subdivision (a)(2), merely clarifies that an eligible defendant who has been convicted of murder—either after a trial or by way of a negotiated plea—may petition for relief under the statute.
Galvez also cites legislative findings that the purpose of Senate Bill No. 1437 was "to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b), italics added.) Since the term "homicides" includes both manslaughters and murders, Galvez argues that section 1170.95 also logically includes manslaughters. We disagree. Because the language of section 1170.95 plainly and unambiguously refers only to murder convictions, we need not resort to any further legislative materials. (See People v. Anderson (1995) 35 Cal.App.4th 587, 592 ["Where that intent is clear and unambiguous from the language of the statute itself, we need not resort to secondary evidence"].)
2. Section 1170.95 does not violate equal protection principles.
The United States and California Constitutions guarantee equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) As a threshold matter, to establish a constitutional equal protection claim, a defendant must show "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.)
It is well established that criminal defendants "who commit different crimes are not similarly situated" for equal protection purposes. (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.) "'"Persons convicted of different crimes are not similarly situated for equal protection purposes." [Citations.] "[I]t is one thing to hold . . . that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally."'" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)
Here, the Legislature has determined through its language in section 1170.95 that those persons convicted of murder are to be treated differently than those persons convicted of other crimes such as manslaughter. This legislative judgment simply does not implicate equal protection principles because these classes of convicted persons are not similarly situated. (See People v. Munoz, supra, 39 Cal.App.5th at p. 760 ["The remedy for any potentially inequitable operation of section 1170.95 lies with the Legislature. If the Legislature concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill [No.] 1437's reach, it has only to amend the law"].)
3. The trial court was not required to appoint Galvez counsel.
Under the statute, "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court . . . ." (§ 1170.95, subd. (a), italics added.) Within the section 1170.95 petition, the petitioner may further request the appointment of counsel. (§ 1170.95, subd. (b)(1)(C).) But once a petitioner has filed a section 1170.95 petition—whether the petition includes a request for counsel or not—the statute provides: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions . . . ." (§ 1170.95, subd. (c), italics added.) Thus, a trial court is not first required to appoint counsel for the petitioner before reviewing the petitioner's section 1170.95 petition, and making the threshold prima facie determination as to whether the petitioner falls within the provisions of the statute.
Further, the Legislature must have intended that when a person files a section 1170.95 petition, the court may look beyond the four corners of the petition—to the underlying case and the record of conviction—in order to determine whether the petitioner actually falls within the provisions of the statute. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1137 [trial court can consider record of conviction in evaluating the petitioner's initial prima facie showing under section 1170.95]; Meyer v. Glenmoor Homes, Inc. (1966) 246 Cal.App.2d 242, 251 ["'Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence'"]; see also In re Estate of Woodson (1939) 36 Cal.App.2d 77, 80 ["Prima facie evidence is not conclusive evidence; it simply denotes that the evidence may suffice as proof of a fact until or unless contradicted and overcome by other evidence"].)
In sum, we find that the Legislature intended trial courts to implement the procedural provisions of section 1170.95 exactly as the court did in this case. That is, the court reviewed Galvez's petition, compared it to Galvez's underlying case, and determined that he was not actually a person that had been convicted of murder, as Galvez had claimed in his section 1170.95 petition.
Galvez's proposed interpretation of section 1170.95—that the court must appoint an attorney for every person that asks for one (and prior to making the prima facie determination)—would violate the statutory framework and would lead to absurd results. For instance, suppose a person convicted of an unlawful weapons possession crime filed a section 1170.95 petition and asked for an attorney. Under our reading of the statute, the court would simply need to review its records in order to summarily deny the petition. But according to Galvez's proposed interpretation of the statute, the court would first need to make an unwarranted appointment of counsel before ruling that the petitioner did not make a prima facie showing. The Legislature could not have intended such an absurd waste of time and resources. Thus, the trial court did not commit error by making its (correct) prima facie determination without first appointing Galvez counsel.
III
DISPOSITION
The trial court's order denying the section 1170.95 petition is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.