Opinion
B296326
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. BERLINDA GREEN, Defendant and Appellant.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Idan Ivri and Nikhil Cooper, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA419591) APPEAL from an order of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed. Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Berlinda Green (defendant) appeals from the summary denial of her petition for resentencing pursuant to Penal Code section 1170.95. She contends that the trial court erred in finding that her voluntary manslaughter conviction did not fall within the scope of the statute, and that the trial court's decision violated her state and federal constitutional rights to due process and to be free from cruel and unusual punishment. We disagree and affirm the order.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
We grant respondent's request for judicial notice of our opinion in People v. Williams, et al., (Oct. 24, 2018, B281118 [nonpub. opn.]).
Defendant and three codefendants were charged with murder and conspiracy to commit murder. Prior to trial, Green entered into a plea agreement in which she pled guilty to an amended count 3, manslaughter in violation of section 192, subdivision (a), and admitted that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced her to an agreed upon term of 11 years in prison, plus a consecutive gang enhancement of 10 years.
In 2019 defendant filed a petition for resentencing under section 1170.95, and the trial court summarily denied the petition, explaining its ruling as follows: "On April 12, 2016, [defendant] pleaded guilty to Penal Code section 192(a), voluntary manslaughter, and admitted a gang enhancement. As [defendant] was not convicted of murder, she does not qualify for relief under the statute." Defendant filed a timely appeal from the trial court's order.
DISCUSSION
I. Section 1170.95 does not apply to manslaughter convictions
Defendant contends that the trial court erred in finding that her petition had made no prima facie showing of eligibility under section 1170.95.
Section 1170.95 became effective January 1, 2019, after it was enacted as part of Senate Bill No. 1437 (S.B. 1437), which also amended sections 188 and 189. As amended, section 188 limits a finding of malice, as follows: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) As added by S.B. 1437, subdivision (e) of section 189 now reads:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
"(1) The person was the actual killer.
"(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
"(3) The person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2."
Section 1170.95 permits a person who was convicted of felony murder or murder under a natural and probable consequences theory to petition the trial court to vacate the murder conviction and resentence the defendant on any remaining counts. Subdivision (a) of section 1170.95 provides that such a person may file a petition "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."
(Italics added.)
Defendant does not dispute the trial court's finding that she was not convicted of murder, or that subdivision (a) of section 1170.95 states that those convicted of murder may file a petition. She contends that subdivision (a)(2) of section 1170.95 (italicized above) provides that those who are prima facie eligible under the statute includes not just those convicted of murder under subdivisions (a)(1) and (a)(3), but also to anyone who was charged with murder under the conditions of subdivision (a)(1) and (a)(3), and who then accepted a plea offer to a lesser offense in lieu of a trial. Defendant posits that subdivision (a)(2) creates an exception to the murder conviction requirement, or if not, that it is ambiguous and thus should be construed in defendant's favor, unless such an application is shown to be clearly inconsistent with the intent of the Legislature.
The Legislature made clear that the statute would apply only to murder convictions when it expressed its intent and purpose in passing S.B. 1437. The Legislature declared in relevant part as follows:
"(e) Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.
"(f) 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.
"(g) 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."(Stats. 2018, ch. 1015, § 1(e), (f), (g).)
"'[T]he fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]' [Citation.]" (People v. Hull (1991) 1 Cal.4th 266, 271.) "'In construing any statute, we first look to its language. [Citation.] "Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . ." [Citation.] . . . .' [Citation.]" (People v. Zambia (2011) 51 Cal.4th 965, 972.)
We discern no ambiguity in subdivision (a)(2), and nothing in any part of section 1170.95 extends its benefits to those convicted of manslaughter. Subdivision (a) clearly and unambiguously states that those convicted of murder may file a petition, and subdivision (a)(2) provides that the conviction may be either one which follows a trial or the result of a plea in lieu of trial.
"[T]he language of the statute unequivocally applies to murder convictions. There is no reference to the crime of voluntary manslaughter. To be eligible to file a petition under section 1170.95, a defendant must have a first or second degree murder conviction. The plain language of the statute is explicit; its scope is limited to murder convictions. [Citation.]" (People v. Cervantes (2020) 44 Cal.App.5th 884, 887.) Thus, "[b]ased on a threshold review of [the charging document and the verdict or factual basis documentation for a negotiated plea], the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder." (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18, 2020, S260493.) We agree with these authorities and conclude that the trial court did not err. As it is clear on the face of section 1170.5 that the Legislature did not intend the statute to apply to persons convicted of any offense other than murder, we need not engage in further statutory construction.
II. No cruel or unusual punishment or due process violation
Defendant contends that if 1170.95 is ruled inapplicable to her, "she was arbitrarily and capriciously distinguished from other similarly situated defendants in being denied access to relief," making "her current sentence arbitrary, capricious, irrational and unpredictable; [denying] her notice of the punishments to be imposed, . . . the benefit of retroactive laws favorable to her, [and] violating her state and federal rights to due process and to be free of cruel and unusual punishments."
We reject the proposition that defendant must be given the retroactive effect of a benefit for which she is ineligible. We also reject defendant's claim that she has been subjected to cruel and unusual punishment. A defendant bears a "considerable burden" to show that her punishment was cruel and unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.) "The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.] While these intrinsically legislative functions are circumscribed by the constitutional limits . . . , the validity of enactments will not be questioned 'unless their unconstitutionality clearly, positively and unmistakably appears.' [Citations.]" (Ibid.)
Defendant cites People v. Wright (1987) 43 Cal.3d 487, 493, In re Ibarrra (1983) 34 Cal.3d 277, 287, and People v. Andreasen (2013) 214 Cal.App.4th 70, 80, for the general rule that "a scheme that fails to adequately notify the defendant of the conduct proscribed or the punishments to be imposed, violates due process and proscriptions against cruel and unusual punishments." Defendant has not explained how these decisions suggest that due process is violated due to lack of notice of unknown future consequences of a guilty plea due to a change in the law nearly three years after the plea.
People v. Wright involved required advisements prior to accepting a guilty plea or the equivalent, including the consequences of the plea. (See People v. Wright, supra, 43 Cal.3d at pp. 494-495.) In re Ibarra concerned the coerciveness of packaged plea bargains where the guilty plea was not supported by the evidence, and where the "'bargained-for' sentence" was "disproportionate to the accused's culpability." (In re Ibarra, supra, 34 Cal.3d at pp. 287-289.) People v. Andreasen held that "[a] defendant may raise a substantive due process challenge based on a vague statute that fails to provide reasonable notice or creates a danger of arbitrary application. [Citations.]" (People v. Andreasen, supra, 214 Cal.App.4th at pp. 79-80.) Defendant has not identified which statute was vague at the time of her plea.
In her reply brief, defendant claims that it is the unequal application of a remedy which was "concededly available" to her and "similarly situated defendants that is the core of her constitutional claims." Neither respondent nor this court has conceded that resentencing under section 1170.95 was available to her. Defendant explains that she is not asserting that her punishment is disproportionate to her crime, within the meaning of In re Lynch (1972) 8 Cal.3d 410, as respondent understood it, but rather that "she was arbitrarily and capriciously distinguished from other similarly situated defendants in being denied access to relief."
To the extent that defendant contends that she has been denied equal protection of the laws, we disagree. As recently explained in Cervantes, supra, 44 Cal.App.5th at page 888:
"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 [and the natural and probable consequences doctrine]. 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.' (Mills v. Municipal Court (1973) 10 Cal.3d 288, 310.)"
"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. [Citation.]" (Cervantes, supra, 44 Cal.App.5th at p. 888.) "Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, § 7; art. IV, § 16) precludes legislative classification with respect to persons who are different. [Citation.] Rather, the basic rule of equal protection is that persons similarly situated with respect to the legitimate purpose of the law must receive like treatment. [Citations.] Thus, only those persons who are similarly situated are protected from invidiously disparate treatment. [Citation.]" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) "'"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." [Citation.]' [Citations.]" (Ibid.)
As we construe defendant's argument, she believes that it is unfair to exclude her from the benefits of section 1170.95 because she might not have entered a plea to manslaughter had she been given adequate notice that the murder laws would be reformed three years later and that the retroactive effect of the reformed laws would apply only to those who were convicted of murder. She describes the benefit that was unfairly denied to her as having her conviction vacated, and she argues that a defendant convicted of murder "would arbitrarily and gratuitously secure a more favorable result," while she remained punished because she entered a plea to a lesser offense.
We reject defendant's contention, as the defendant whose murder conviction qualifies for vacatur and resentencing does not go unpunished, as her argument suggests. The statute applies to defendants convicted under the felony-murder rule or the natural and probable consequences doctrine. (§ 1170.95, subd. (a).) Prior to the amendments of sections 188 and 189, the felony-murder rule imposed murder liability on a defendant for a killing perpetrated by an accomplice during the commission, or attempted commission, of an inherently dangerous felony, without proof of intent to kill or even implied malice, so long as the defendant intended to commit the underlying felony. (See People v. Gonzalez (2012) 54 Cal.4th 643, 654.) Under the natural and probable consequences doctrine as relevant here, a person who knowingly aided and abetted an accomplice's criminal conduct, such as an assault, is guilty of not only the intended assault (the target offense) but also of any other crime, such as murder, that the accomplice actually committed if the murder was the natural and probable consequence of the target offense. (See People v. Medina (2009) 46 Cal.4th 913, 920.) If a section 1170.95 petition is successful, subdivision (e) of the statute provides for redesignating the conviction as the underlying felony or target offense, and resentencing on the basis of the redesignated offense and any remaining counts. The successful petitioner thus does not escape punishment.
Justice Reynoso explained in his concurring opinion in People v. Gayther (1980) 110 Cal.App.3d 79, 91, it is conceivable "that the Constitution precepts of equal protection of the law and cruel and unusual punishment are viable vehicles for review of disparate treatment even when the punishment is for different crimes. Thirty years in prison for possession of one ounce of marijuana versus six months for selling of heroin, as a clear example, would violate equal protection or would be cruel and unusual. . . ."
Here, defendant has failed to demonstrate that she has been subjected to disparate treatment, let alone at the level described by Justice Reynoso. Moreover, defendant has not shown that resentencing would necessarily result in a more lenient sentence. The procedure for resentencing under section 1170.95 is analogous to the procedure under Propositions 36 and 47. (See People v. Verdugo, supra, 44 Cal.App.5th at p. 329.) "[I]n considering not only Proposition 47 [and Proposition 36, as well as] analogous statutes addressing recalled sentences, . . . the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893, first italics added.) Thus, whether defendant would receive a better result if resentenced to the underlying felony or target offense, would depend on what her target offense or underlying felony was, the punishment provided by law for the target or underlying offense, and any enhancements imposed.
Nor has defendant shown that her current sentence is substantially greater than new sentences would be for others convicted of murder and who qualify for resentencing. If, for example, such a person's target offense in a felony murder case was first degree robbery, the new sentencing range would be three, six, or nine years. (See § 213, subd. (a).) The sentencing range for manslaughter is a similar three, six, or eleven years. (§ 193, subd. (a).) --------
In sum, defendant's arguments fail to demonstrate that she was deprived of constitutionally required notice, that she was subjected to cruel or unusual punishment, that she was deprived of equal protection under the laws, or that she was otherwise deprived of due process.
DISPOSITION
The trial court's order denying defendant's petition for resentencing pursuant to section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST