Opinion
A167609
02-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMIE LEE TERRELL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05001703313)
MAYFIELD, J. [*]
Jamie Lee Terrell appeals the denial of his petition for resentencing pursuant to Penal Code section 1172.6, which permits a "person convicted of . . . murder . . ., attempted murder . . ., or manslaughter" to petition "to have [their] murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts." (Pen. Code, § 1172.6, subd. (a) (section 1172.6(a)).) Because Terrell was not convicted of murder, attempted murder, or manslaughter, the trial court properly denied his petition. We affirm.
Undesignated statutory citations are to the Penal Code.
BACKGROUND
In December 2015, Terrell entered the home of John C. with the intent to commit larceny, attempted by force and fear to take property from John, and shot him, causing great injury. The information filed in March 2017 charged Terrell with three crimes: attempted murder (§§ 664, 187, subd. (a)) (count 1), with an enhancement for intentionally discharging a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)); attempted first degree residential robbery (§§ 664, 211) (count 2), with the same enhancement (§ 12022.53, subd. (d)); and first degree residential burglary (§ 459) (count 3), with enhancements for personally using a firearm (§ 12022.5, subd. (a)) and causing great bodily injury (§ 12022.7, subd. (a)).
In August 2017, pursuant to a plea bargain, Terrell pled no contest to counts 2 and 3-attempted robbery and burglary-and admitted the related enhancement allegations, as well as a prior strike. The prosecution dismissed the attempted murder count. The trial court sentenced Terrell to 14 years in prison.
In November 2022, Terrell filed a form petition for resentencing pursuant to section 1172.6. He checked boxes on the form next to paragraphs reciting, in the words of the statute, that he satisfied three conditions for relief set forth in subdivisions (a)(1) through (a)(3) of the statute. (See § 1172.6, subd. (a)(1)-(3), quoted at pp. 4-5, post.)
The trial court denied the petition without prejudice on the ground that Terrell had not made a prima facie showing of entitlement to relief because he had not been convicted of murder, attempted murder, or manslaughter.
DISCUSSION
Section 1172.6 was enacted in 2018 as part of Senate Bill No. 1437, which amended" '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 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).)" (People v. Lewis (2021) 11 Cal.5th 952, 959.) The bill created a procedure, now codified as amended in section 1172.6, by which a person previously convicted of murder or attempted murder under the natural and probable consequences doctrine, of felony murder, or of manslaughter can petition to have their murder, attempted murder, or manslaughter conviction vacated and be resentenced on the remaining counts. (§ 1172.6(a).)
The provision was originally numbered section 1170.95. (Stats. 2018, ch. 1015, § 4.) The Legislature renumbered it section 1172.6, without change to its text, effective July 1, 2022. (Stats. 2022, ch. 58, § 10; People v. Arellano (2022) 86 Cal.App.5th 418, 422, fn. 2, review granted, Mar. 15, 2023, S277962.) This opinion uses the current section number throughout, including in its discussion of pre-July 2022 case law, except as needed for technical precision.
After a petition for resentencing is filed, the trial court must determine if the petitioner has made a prima facie showing of entitlement to relief under the statute. (§ 1172.6, subd. (c); People v. Lewis, supra, 11 Cal.5th at p. 960.) If so, the court must "hold a hearing 'to determine whether to vacate the murder, [attempted murder, or manslaughter] conviction and to recall the sentence and resentence the petitioner on any remaining counts.'" (Lewis, at p. 960; § 1172.6, subds. (c)-(d)(1).) We review de novo the denial of a petition at the prima facie stage. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
According to Terrell, the trial court erred in denying his petition because it failed to recognize that the phrase "person convicted of . . . murder . . ., attempted murder . . ., or manslaughter," as used in the first paragraph of section 1172.6(a), is "further defined" by subdivision (a)(2), in a way entitling him to seek relief even though he was not convicted of any of the three listed offenses. Specifically, he contends that subdivision (a)(2) allows a defendant convicted by plea to establish eligibility for resentencing by alleging that the trial he avoided could have led to a conviction for murder, attempted murder, or manslaughter.
Terrell's contention that his petition satisfied the statute, properly construed, raises a question of statutory interpretation we answer through a process involving "up to three steps." (MacIsaac v. Waste Management Collection &Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.) First, we look to the statute's words. (Ibid.) "If the statutory language is clear and unambiguous, our task is at an end." (Id. at p. 1083.) If not, we consider maxims of construction and extrinsic aids. (Ibid.) If ambiguity persists, we "apply 'reason, practicality, and common sense to the language.'" (Id. at p. 1084.) Here, the inquiry ends at step one.
The statute states: "(a) A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply." (§ 1172.6(a).) Section 1172.6 subdivisions (a)(1) through (a)(3) set forth those conditions as follows: "(1) A [charging document] was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine [or another theory of imputed malice], or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3).)
Terrell claims the trial court misread section 1172.6, subdivision (a)(2) as requiring a conviction for murder, attempted murder, or manslaughter when it contains no such requirement. While that is an accurate literal reading of subdivision (a)(2), viewed in isolation, we must assess section 1172.6(a) as a whole "by considering all the relevant statutory language, not a single phrase in isolation." (Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1139, superseded by statute on other ground as noted in McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 470.) Viewing section 1172.6(a) as a whole, it is irrelevant that subdivision (a)(2) does not itself state that a petitioner must have been convicted of murder, attempted murder, or manslaughter. The first paragraph of subdivision (a) imposes that requirement. (§ 1172.6(a) ["A person convicted of . . . murder . . ., attempted murder . . ., or manslaughter may file a petition"].) Nothing in subdivision (a)(2) modifies that clear, unambiguous language.
We rejected an argument logically identical to Terrell's in People v. Paige (2020) 51 Cal.App.5th 194 (Paige). Paige arose before section 1172.6 was amended in 2021 to encompass persons convicted of attempted murder and manslaughter. (Stats. 2021, ch. 551, § 1.) In Paige, the trial court denied a petition by a person who, "although he was charged with felony murder, was convicted of voluntary manslaughter via a plea agreement." (Paige, at p. 197.) At the time, the first paragraph of 1172.6 (a) authorized petitions only by those convicted of murder:" 'A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition . . . to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply.'" (Paige, at p. 200, quoting former § 1170.95, subd. (a).) Subdivisions (a)(1) through (a)(3) read as they do now, except likewise limited to convictions of murder. (Compare Paige, at p. 200, quoting former § 1170.95, subd. (a)(1)-(3), with § 1172.6, subd. (a)(1)-(3).)
The petitioner in Paige relied on the same literal reading of section 1172.6, subdivision (a)(2), viewed in isolation, as Terrell does here. (Paige, supra, 51 Cal.App.5th at pp. 201-202.) He noted that, as to a petitioner convicted after a plea, subdivision (a)(2) of section 1172.6 required only that he have been facing a trial at which he could be convicted of murder-not that the crime of which he was convicted pursuant to his plea was murder. (Paige, at pp. 201-202.) We rejected his argument in the following terms, which apply here in full if "murder" is replaced by "murder, attempted murder, or manslaughter": "Read in isolation, . . . 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 . . . 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.' [Citation.] . . . [Subdivision (a)(2) is one of three conditions-all of which must also apply before the person convicted of . . . murder may seek relief under [the statute]. Given the structure of the statute and the language in the first paragraph of . . . 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." (Paige, at p. 202.) We added that no "part of the statute [authorized] relief from a conviction of any crime other than murder." (Ibid.) That is still true as to any crime but murder, attempted murder, or manslaughter. (§ 1172.6.)
Terrell cites no authority holding that a petitioner not convicted of murder, attempted murder, or manslaughter can state a prima facie claim under section 1172.6. In the lone section 1172.6 case he cites, People v. Arellano, supra, 86 Cal.App.5th 418, the defendant pled guilty to murder, petitioned successfully under section 1172.6 to have his murder conviction vacated, and appealed only to challenge part of the sentence imposed at his resentencing. (Arellano, at p. 422, review granted Mar 15, 2023, S277962.) The decision does not support Terrell's position.
Since the 2021 amendment that expanded section 1172.6 to encompass attempted murder and manslaughter, decisions construing the statute are consistent with Paige, supra, 51 Cal.App.4th at page 202. We have held the statute does not apply to a conviction for evading a police officer proximately causing death (Veh. Code, § 2800.3, subd. (b)), as the crime is distinct from murder, attempted murder, and manslaughter. (People v. Campbell (2023) 98 Cal.App.5th 350, 388 &fn. 31.) The Second District held the expanded statute does not apply to conspiracy to commit murder, as "the statute's specified crimes . . . do not include convictions for conspiracy." (People v. Whitson (2022) 79 Cal.App.5th 22, 36.) The Second District noted that, to reach that holding, it need not look past the statute's unambiguous language. (Id. at p. 35.) Nonetheless, it briefly explained its rejection of the defendant's argument that construing the statute to encompass conspiracy to commit murder would further its purpose. (Id. at pp. 35-36.)
Here, Terrell does not-and could not plausibly-argue that including attempted robbery and burglary within the scope of section 1172.6 would serve the statute's purpose. Because no colorable argument about the statute's purpose requires us to look beyond its clear and unambiguous language, our analysis ends there. (MacIsaac v. Waste Management Collection &Recycling, Inc., supra, 134 Cal.App.4th at p. 1083.) The trial court properly denied Terrell's petition.
DISPOSITION
The order denying Terrell's petition under section 1172.6 is affirmed.
We concur: Richman, Acting P.J., Miller, J.
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.