Opinion
F086151
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. IROC GALLEGOS, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. PCF372403 Robert Anthony Fultz, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Petitioner Iroc Gallegos petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for voluntary manslaughter (§ 192, subd. (a)). The trial court denied the petition at the prima facie stage.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion, except where otherwise noted.
At issue in this appeal is whether petitioner's plea to voluntary manslaughter after the effective date of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), but before the effective date of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill No. 775), renders petitioner ineligible for resentencing as a matter of law.
We conclude it does not. Accordingly, we reverse.
PROCEDURAL HISTORY
On October 31, 2018, the Tulare County District Attorney filed a complaint charging petitioner with the murder of X.T. (§ 187, subd. (a); count 1), and the attempted murder of M.M. (§§ 187, subd. (a), 664; count 2). The complaint also alleged firearm and gang allegations as to both counts (§§ 186.22, subd. (b)(5), 12022.53. subds. (b)-(d)).
On May 10, 2019, as part of a negotiated disposition, the prosecutor orally amended the complaint to charge voluntary manslaughter on count 1, and to amend the associated gang allegation to reflect a violation of section 186.22, subdivision (b)(1)(C). Petitioner then entered a plea of no contest to voluntary manslaughter on count 1 and admitted the gang allegation. The remaining count and allegations were dismissed. Petitioner was sentenced to a stipulated term of 11 years.
On June 28, 2022, petitioner filed a petition for resentencing pursuant to section 1172.6. Counsel was appointed. Petitioner then filed a second petition for resentencing on August 18, 2022. On December 12, 2022, the People filed a "Notice of Ineligibility for Resentencing" (some capitalization omitted), asserting that petitioner could not have been convicted pursuant to a natural and probable consequences theory because he entered his plea after the effective date of Senate Bill No. 1437.
The matter was heard on March 20, 2023, and the court denied the petition "based upon the response filed by the People."
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "to amend the felony murder rule and the natural and probable consequences doctrine . . . 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); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) Relevant here, the bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The bill also amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at p. 708.) Finally, the bill added former section 1170.95, now section 1172.6, which created a procedure for persons convicted under the former law to seek vacatur of the conviction and resentencing. (Strong, at p. 708; Gentile, at p. 843.)
The section 1172.6 petition process "begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)) ...." (Strong, supra, 13 Cal.5th at p. 708.) First, "A complaint, information, or indictment 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 other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine"; second, "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"; and, third, "The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3).)
As originally enacted, former section 1170.95 expressly permitted a petition only from petitioners who were convicted of murder under a felony murder or natural and probable consequences theory. (Former § 1170.95.) However, effective January 1, 2022, Senate Bill No. 775 amended former section 1170.95 to expand the categories of offenders eligible to petition for resentencing. Now, persons convicted of "attempted murder under the natural and probable consequences doctrine, or manslaughter" may file a petition for resentencing. (§ 1172.6, subd. (a); see former § 1170.95, subd. (a).) One purpose of the bill was to clarify "that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1, subd. (a).)
We review the court's prima facie inquiry de novo. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
II. Analysis
The question in this appeal is whether a defendant convicted of manslaughter after Senate Bill No. 1437 became effective can obtain resentencing under section 1172.6.
In People v. Reyes (2023) 97 Cal.App.5th 292, 296 (Reyes), a panel of this court determined the section 1172.6 petition procedure did not apply to a defendant convicted of murder after the effective date of Senate Bill No. 1437. The court reviewed the eligibility requirements stated in section 1172.6, subdivision (a) and concluded they did not apply to a defendant convicted after the effective date of Senate Bill No. 1437. Relevant here, the court noted, "[i]n order to be resentenced, a petitioner must allege that he could not presently be convicted of murder (or its attempt) 'because of changes' brought by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) This language demonstrates that [the defendant]'s petition was properly denied. [The defendant] was not convicted under the prior law, which permitted a theory of murder based on imputed malice. Instead, he entered his change of plea in 2021 with the advice and consent of legal counsel. When [the defendant] entered his change of plea, the now invalid theories of murder liability had already been eliminated. Consequently, [the defendant] has already received the benefits of Senate Bill No. 1437." (Reyes, at p. 298.)
Here, petitioner entered his plea in 2019, after the effective date of Senate Bill No. 1437, and after the now-invalid theories of murder liability were eliminated. Thus, as in Reyes, petitioner cannot show that he "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3); accord, Reyes, supra, 97 Cal.App.5th at p. 298.)
But, unlike the petitioner in Reyes, petitioner in the instant case also was facing a charge of attempted murder. At the time petitioner entered his plea to manslaughter, the law was unsettled as to the impact of Senate Bill No. 1437 on the offense of attempted murder. (Compare People v. Lopez (Aug. 21, 2019, B271516) opn. ordered nonpub. Nov. 10, 2021, S258175 ["The Legislature's obvious intent to exclude attempted murder from the ambit of the Senate Bill [No.] 1437 reform is underscored by the language of [former] section 1170.95, the provision it added to the Penal Code to permit individuals convicted before Senate Bill [No.] 1437's effective date to seek the benefits of the new law from the sentencing court."]; with People v. Medrano (Dec. 3, 2019, F068714, F069260) opn. ordered nonpub. Jan. 26, 2022, S259948 ["Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder."].) This split of authority was not resolved until January 1, 2022, the effective date of Senate Bill No. 775. (See People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)
In light of the foregoing, petitioner could have faced attempted murder liability under a now-invalid theory had he proceeded to trial in lieu of entering a plea to voluntary manslaughter in 2019. Thus, petitioner has met his prima facie burden of alleging he could not be convicted of attempted murder due to "changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).)
Nonetheless, the People argue petitioner is ineligible for resentencing because he entered his plea to voluntary manslaughter in lieu of a charge of murder, not attempted murder. The People are correct that petitioner entered a plea to voluntary manslaughter on count 1, as a lesser offense of the original charge of murder. Were this the only charge alleged against petitioner, we would agree with the People that no invalid theories of prosecution were available at the time petitioner entered his plea, thus rendering him ineligible for resentencing as a matter of law. (See Reyes, supra, 97 Cal.App.5th at p. 298.) However, count 2 alleged petitioner was guilty of attempted murder, and this count was dismissed as a result of petitioner's negotiated plea. Section 1172.6 requires that a 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." (§ 1172.6, subd. (a)(2), italics added.) Petitioner's plea satisfies this requirement based on the plain language of the statute: he entered a plea to voluntary manslaughter in lieu of a trial at which he could have been convicted of attempted murder under a now-invalid theory.
Based on the foregoing, we conclude the court erred in denying the petition based on petitioner's plea having been entered after the effective date of Senate Bill No. 1437. Accordingly, we will reverse the order denying the petition. Because the parties below did not argue, and the court did not determine, whether petitioner otherwise stated a prima facie case for resentencing, we will remand for the court to conduct a prima facie inquiry and to determine whether to issue an order to show cause. (§ 1172.6, subd. (c).)
DISPOSITION
The order denying the petition is reversed and the matter is remanded for further proceedings pursuant to section 1172.6, subdivision (c).
[*] Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.