Opinion
G057490
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. LONG KHOI TON, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Idam Ivri and Roberta L. Davis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 01CF1723) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Idam Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Long Khoi Ton appeals from the trial court's order denying his petition for resentencing on his conviction for voluntary manslaughter (Pen. Code, § 1170.95, all further statutory references are to the Penal Code). Because section 1170.95 applies only to murder convictions, the trial court properly denied Ton's petition, and his equal protection rights were not violated. We affirm the court's order.
FACTS
In October 2001, as relevant here, an amended information charged Ton and others with murder (§ 187 subd. (a) (count 1)), attempted murder (§§ 664, 187, subd. (a) (count 2)), street terrorism (§ 186.22, subd. (a) (count 5)), and voluntary manslaughter (§ 192, subd. (a) (count 7)).
Ton pleaded guilty to counts 5 and 7. On the prosecution's motion, the trial court dismissed counts 1 and 2. The trial court sentenced Ton to prison for six years (count 7) and eight months (count 5).
In January 2019, Ton filed a petition under the resentencing provision of Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4) (S.B. 1437), which codified section 1170.95. A couple weeks later, he filed a second petition. The next month, the court denied the petition, concluding the petition did not set forth a prima facie case for relief because Ton had not been convicted of murder.
The minute order reflects the court denied only one petition. This is likely because the first and second petitions were virtually identical. --------
DISCUSSION
I. Application
Ton argues the trial court abused its discretion in concluding section 1170.95 was inapplicable to voluntary manslaughter. Not so.
S.B. 1437, "amended sections 188 and 189 and added section 1170.95 to the Penal Code, significantly modifying the law relating to accomplice liability for murder." (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1099, review granted Nov. 13, 2019, S258175 (Lopez); Cal. Rules of Court, rule 8.1115(e)(1) [while review pending may rely on for persuasive value]).) Section 1170.95, subdivision (a), provides, in relevant part, "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 . . . ." Section 1170.95 does not mention the crime of voluntary manslaughter.
The Legislature enacted S.B. 1437 for the express purpose of "amend[ing] 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." (§§ 188, 189, as amended by Stats. 2018, ch. 1015, § 1, subd. (f).)
If the petitioner makes a prima facie showing under section 1170.95, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) A prima facie showing under section 1170.95, requires the following: (1) an accusatory pleading was filed against the petitioner allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he or she was convicted of first or second degree murder following a trial, or accepted a plea offer to first or second degree murder in lieu of trial, at which he or she could have been so convicted; and (3) that he or she could not be convicted of murder due to the amendments to sections 188 and 189. (§ 1170.95, subd. (a)(1)-(3).)
The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801.) "When we interpret statutes, our primary task is to determine and give effect to the Legislature's purpose in enacting the law." (In re H.W. (2019) 6 Cal.5th 1068, 1073.) "We first look to the words of the statute, as they are generally the most reliable indicators of the legislation's purpose. [Citations.]" (Ibid.)
By its express terms, section 1170.95, subdivision (a), authorizes only a person "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated . . . ." Section 1170.95 does not mention manslaughter but instead repeatedly and exclusively references murder. This makes plain the statute limits relief only to qualifying persons who were convicted of murder. "Manslaughter, while a lesser included offense of murder, is clearly a separate offense . . . ." (People v. Strickland (1974) 11 Cal.3d 946, 960.)
Our colleagues in the Second District addressed a similar issue in Lopez, supra, 38 Cal.App.5th at 1087. The Lopez court concluded section 1170.95 excluded any relief for individuals not convicted of felony murder or murder under a natural and probable consequences theory. (Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.) The court noted this conclusion was supported by the statute's plain language and legislative history. (Id. at p. 1105.) In citing section 1170.95's repeated use of the term "murder" and the absence of the use of the term "attempted murder," the court concluded the Legislature's intention to limit relief to those convicted of the completed crime of murder was clear. (Lopez, supra, 38 Cal.App.5th at p. 1105.) We find the Lopez court's reasoning persuasive.
Here, like the attempted murder count in Lopez, voluntary manslaughter is not an enumerated crime entitled to resentencing under section 1170.95. "Section 1170.95, subdivision (a), authorizes only those individuals 'convicted of felony murder or murder under a natural and probable consequences theory' to petition for relief; and the petition must be directed to 'the petitioner's murder conviction.' Similarly, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to determine whether to vacate 'the murder conviction.'" (Lopez, supra, 38 Cal.App.5th at p. 1105.) Section 1170.95 does not reference the crime of voluntary manslaughter and refers exclusively to murder offenses. Because they are separate offenses, the Legislature's inclusion of one and exclusion of the other makes clear only those convicted of murder can petition for resentencing. Section 1170.95's resentencing provisions do not apply to the crime of voluntary manslaughter.
Relying on section 1170.95, subdivision (a)(2)'s reference to those who accept a plea offer, Ton argues the statute must be construed to apply to individuals who pleaded guilty to voluntary manslaughter when the plea was entered to avoid a possible murder conviction based on the natural and probable consequences theory. The court in People v. Flores (2020) 44 Cal.App.5th 985 (Flores), filed after briefing was complete in this case, rejected this same claim.
The Flores court opined defendant "place[d] outsized importance on a single clause to the exclusion of the provision's other language[,]" which violated established rules of statutory construction. (Flores, supra, 44 Cal.App.5th at p. 995.) The court added the following: "'[W]e must read the language as it is placed in the code section, and in the context of the entire statutory scheme.' [Citation.] [T]he remaining portions of section 1170.95 repeatedly and exclusively refer to murder, not manslaughter." (Ibid.) We find Flores persuasive. The trial court properly denied Ton's petition. II. Equal Protection
Ton contends S.B. 1437 violates his equal protection rights if the section 1170.95 petition process is interpreted to exclude those who pleaded guilty to voluntary manslaughter to avoid natural and probable consequences murder. Not so.
"'Guarantees of equal protection embodied in the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution prohibit the state from arbitrarily discriminating among persons subject to its jurisdiction.'" (People v. Chavez (2004) 116 Cal.App.4th 1, 4.) "The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, '"[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."' [Citation.] 'This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged.'" [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 328.)
Generally, "'"[p]ersons 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.]" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)
Ton was convicted of voluntary manslaughter, which, as discussed above, is an offense separate from murder. (Strickland, supra, 11 Cal.3d at p. 960.) Ton stands convicted of a different crime than the one to which this ameliorative statute applies. Therefore, he is not similarly situated to individuals who may benefit from it.
Furthermore, even assuming two groups are similarly situated, there is no equal protection violation "provided the classifications are made with a legitimate goal to be accomplished. [Citation.]" (People v. Mora (2013) 214 Cal.App.4th 1477, 1483.) "[T]he Legislature's decision to limit sentencing reform at this time to offenders in cases of murder is certainly rational. . . . The Legislature could have reasonably concluded reform in murder cases 'was more crucial or imperative.' [Citation.] . . . [¶] Second, the process created in section 1170.95 for those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate that conviction and to be resentenced is not cost free. The staff of the Senate Appropriations Committee estimated, if 10 percent of the inmates eligible for relief under [S.B.] 1437 petitioned the courts for resentencing, additional court workload costs would approximate $7.6 million. [Fn. omitted] The committee's report expressed concern that this increase in workload 'could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.' [Citation.] Additional expenditures would also be required to transport petitioners in custody to and from court hearings. [Citation.] [¶] In a world of limited resources, it is reasonable for the Legislature to limit the scope of reform measures to maintain the state's financial integrity. [Citations.]" (Lopez, supra, 38 Cal.App.5th at pp. 1111-1112.)
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. [Citations.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887.) We find no equal protection violation.
Finally, as to Ton's claim his plea to voluntary manslaughter changes the equal protection analysis, again we disagree. Offenders who commit different crimes are not similarly situated for equal protection purposes. (Lopez, supra, 38 Cal.App.5th at p. 1110.) Again, Ton is not similarly situated to those convicted of murder because section 1170.95's objective is not to provide relief to those charged with murder but to provide relief to a subset of those convicted of murder. Ton did not suffer a murder conviction.
DISPOSITION
The postjudgment order is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.