Opinion
2d Crim B327808
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE FERNANDO VILLAGOMEZ, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County No. 1481236 of Santa Barbara John F. McGregor, Judge
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
CODY, J.
Appellant Jose Fernando Villagomez appeals from the denial of his petition for resentencing pursuant to Penal Codesection 1172.6. He contends section 1172.6 authorizes a court to reduce a first degree murder conviction to second degree murder, then resentence on the reduced conviction under the revised homicide laws. We disagree and will affirm.
Further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and an associate, Victor Martinez, broke into the home of a 64-year-old woman while she was sleeping. Appellant went upstairs and observed Martinez fighting the woman. He observed Martinez on top of the woman, striking her and choking her. He saw "blood like pouring paint." Martinez had a hammer and appellant thought Martinez was going to sexually abuse her. He heard the woman quietly asking for help. At Martinez's direction, appellant went to a window and looked out, but didn't see anything. The woman survived the attack but later died of a blood clot lodged in her lungs.
Appellant and Martinez were both arrested. DNA evidence confirmed Martinez was the woman's attacker. Martinez and appellant were tried together but appellant pleaded guilty to one count of first degree murder (§ 187, subd. (a)). In connection with the plea, the prosecution dismissed felony murder special circumstance allegations based on the underlying felonies of robbery, burglary, and rape by instrument (§ 190.2, subd. (a)(17)(A), (G) &(K). Appellant was sentenced to a term of 25 years to life in prison. Martinez was convicted of murder by a jury and his conviction was affirmed on appeal. (People v. Martinez (Aug. 24, 2020, B291678) [nonpub. opn.].)
Following the enactment of Senate Bill 1437, appellant filed a pro per petition for resentencing pursuant to section 1172.6. The trial court appointed counsel for appellant and the People filed a response conceding appellant's prima facie case for relief. The trial court issued an order to show cause and set an evidentiary hearing. The People and appellant filed multiple motions and briefs and stipulated to evidence they would present.
After the hearing, the trial court found appellant could not be convicted of first degree felony murder under current laws because evidence did not establish beyond a reasonable doubt that he was the actual killer, harbored an intent to kill, or was a major participant in the underlying felony. Appellant could, however, be found guilty of second degree implied malice murder because he directly aided and abetted the murder by "acting as a lookout" with the "intent to further [Martinez's] act." Accordingly, his petition was denied.
DISCUSSION
Appellant asserts section 1172.6 authorizes a trial court to reduce a first degree murder conviction to second degree murder and resentence accordingly. He argues recent holdings analyzing this issue (People v. Didyavong (2023) 90 Cal.App.5th 85 (Didyavong); and People v. Gonzalez (2023) 87 Cal.App.5th 869 (Gonzalez)) were incorrectly decided. We disagree.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended sections 188 and 189 "to more equitably sentence offenders in accordance with their involvement in homicides" (People v. Reyes (2023) 14 Cal.5th 981, 986) by eliminating "natural and probable consequences liability for murder as it applies to aiding and abetting, and by limiting the scope of the felony-murder rule. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 2, 3.)" (People v. Lewis (2021) 11 Cal.5th 952, 957.) The amendments prohibit imputing malice to a person based solely on their participation in a crime. (Pen. Code, § 188, subd. (a)(3); see also People v. Turner (2020) 45 Cal.App.5th 428, 433.)
Senate Bill 1437 also created a procedural mechanism for those convicted of murder under the former law to seek retroactive relief under the amended laws. (People v. Strong (2022) 13 Cal.5th 698, 708.) Formerly numbered section 1170.95, the legislature later renumbered the statute to section 1172.6 without making any further substantive changes. (People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3.) We refer to the section by its new numbering only.
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) removed all references to first and second degree murder and expanded the class of defendants who may petition for resentencing to those convicted of attempted murder under the natural and probable consequences doctrine (§ 1172.6, subd. (a)(1)) and/or attempted murder or manslaughter following a trial or acceptance of a plea offer in lieu of a trial where petitioner could have been convicted of murder or attempted murder. (Id., subd. (a)(2); see People v. Delgadillo, supra, 14 Cal.5th at p. 223, fn. 3, [identifying changes in Sen. Bill 775].)
An issue of statutory interpretation is reviewed de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961.) Our role in interpreting a statute is to determine the legislature's intent to ensure correct application of the law. The language of a statute is generally the most reliable factor in determining its intent. We review the language for its plain meaning and if there is no ambiguity, we presume the legislature meant what it said. (People v. Johnson (2002) 28 Cal.4th 240, 244.)
Section 1172.6 does not provide a mechanism for the trial court to reduce a conviction from first to second degree murder. (See Didyavong, supra, 90 Cal.App.5th at p. 89 [statute governing petition provided no mechanism for trial court to reduce first degree murder conviction to second degree]; see also Gonzalez, supra, 87 Cal.App.5th 869 [reducing a conviction for first degree murder, to a conviction for second degree murder, is not an option when adjudicating a petition for resentencing based on ameliorative changes in law].) Appellant argues a conviction for first degree murder necessarily includes a charge of second degree murder. He contends since section 1172.6, subdivision (d)(3) provides for vacating a "prior conviction" and for resentencing "on the remaining charges" (§ 1172.6, subd. (d)(3)) the trial court was required to vacate his first degree murder conviction and resentence on the remaining second degree murder conviction. We disagree.
The statute requires "the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3), italics added.) Here, the trial court found the prosecution proved beyond a reasonable doubt appellant was guilty of murder under amended sections 188 and 189. Appellant was not entitled to relief and the court had no authority to redesignate his conviction for resentencing purposes.
Appellant urges us to consider the principle of "parallel construction" (People v. Frierson (2017) 4 Cal.5th 225, 236), the risks of adopting a contrary interpretation of a statute, the intent underlying Senate Bill No. 1437, and the holding in People v. Tirado (2022) 12 Cal.5th 688. Tirado is not persuasive here. It held the plain language of the statute in question provided the relief sought by Tirado. (Id. at p. 700.) That is not true here.
Senate Bill Nos. 1437 and 775 evidence the legislature's intent to change the ameliorative effects of the law as well as its intention not to apply the doctrine of parallel construction to resentencing petitions under section 1172.6. Senate Bill 1437's original construction of section 1172.6 only authorized a court to resentence if 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." (Sen Bill No. 1437 (2017-2018 Reg. Sess.) § 4, italics added.) Senate Bill 775 removed all references to first and second degree murder, authorizing a court to vacate a conviction and resentence only if a "petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (Sen. Bill No. 775 (2021-2022 Reg. Sess.) § 2.)
Section 1172.6 is unambiguous. If the legislature intended to authorize a court to reduce a conviction from first to second degree murder, it would have said so. The removal of all references to first and second degree murder from 1172.6 demonstrate our holding does not adopt a contrary interpretation of the statute but preserves Senate Bill 1437's underlying intent.
DISPOSITION
Judgment is affirmed.
We concur: GILBERT, P. J., BALTODANO, J.