Opinion
B304593
02-03-2021
THE PEOPLE, Plaintiff and Respondent, v. URSULA GOMEZ, Defendant and Appellant.
Jonathan E. Demson, 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, Assistant Attorney General, Idan Ivri and Wyatt E. Bloomfield, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA057522) APPEAL from an order of the Superior Court for the County of Los Angeles. Jesse I. Rodriguez, Judge. Affirmed. Jonathan E. Demson, 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, Assistant Attorney General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
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SUMMARY
Defendant Ursula Gomez is serving a 21-year prison term after pleading guilty to voluntary manslaughter. She petitioned for resentencing under Penal Code section 1170.95. (Unidentified section references are to the Penal Code.) Section 1170.95 allows persons convicted of felony murder, or murder under a natural and probable consequences theory, to petition for resentencing. The trial court summarily denied defendant's petition without appointing counsel for defendant.
We affirm the trial court's order. Courts of Appeal have thus far uniformly held only defendants convicted of murder are eligible for relief under the plain language of section 1170.95. We agree with those decisions. We also agree with decisions holding the right to counsel does not attach immediately upon the filing of a resentencing petition.
FACTS
In February 2010, defendant pleaded guilty to voluntary manslaughter. Her plea followed the reversal of her first degree murder conviction, based on inadequate jury instructions on felony murder and provocative act murder. (People v. Gomez (Oct. 30, 2006, B180504) [nonpub. opn.].) The court sentenced defendant to 21 years in state prison (the upper term of 11 years, plus 10 years for a gang enhancement).
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), amending the felony-murder rule and the natural and probable consequences doctrine for murder. Senate Bill No. 1437 also added section 1170.95, which specifies a procedure under which a person "convicted of felony murder or murder under a natural and probable consequences theory" may petition the sentencing court "to have the petitioner's murder conviction vacated" and to be resentenced on any remaining counts. (§ 1170.95, subd. (a).) The petition must show, among other things, 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." (§ 1170.95, subd. (a)(2).)
In November 2019, defendant filed a resentencing petition, asking the court to "issue an Order to Show Cause in this matter and appoint counsel." On January 2, 2020, the trial court summarily denied the petition. The court found defendant was not entitled to relief as a matter of law because she was not convicted of murder, but rather "entered into a plea agreement to plea to Count 4, a violation of [section] 192 [manslaughter]."
Defendant filed a timely appeal.
DISCUSSION
1. Eligibility for Resentencing
Defendant contends she is eligible for resentencing because she "accepted a plea offer in lieu of a trial at which [she] could be convicted for first degree or second degree murder" within the meaning of section 1170.95, subdivision (a)(2). We disagree, as have all other Courts of Appeal that have construed section 1170.95.
The first case to conclude that only defendants convicted of murder are eligible for relief under section 1170.95 was People v. Cervantes (2020) 44 Cal.App.5th 884, 887 (Cervantes) ("the language of the statute unequivocally applies to murder convictions. There is no reference to the crime of voluntary manslaughter"). Several other cases to the same effect followed. (People v. Flores (2020) 44 Cal.App.5th 985, 993 (Flores) ["Through its repeated and exclusive references to murder, the plain language of section 1170.95 limits relief only to qualifying persons who were convicted of murder."]; People v. Turner (2020) 45 Cal.App.5th 428, 435-436 [same]; see id. at pp. 436, 436-438 ["even if [the defendant] were correct that an ambiguity exists, the legislative history demonstrates he is not entitled to relief"]; see also People v. Sanchez (2020) 48 Cal.App.5th 914, 918-919 (Sanchez); People v. Paige (2020) 51 Cal.App.5th 194, 201-202.)
Defendant insists the cited decisions were wrongly decided and should not be followed. But her arguments for a different conclusion have been answered in those cases, as we briefly describe below.
Defendant argues that the statutory clause just quoted—referring to a defendant who "accepted a plea offer in lieu of a trial"—is ambiguous and should be interpreted to include defendants who pleaded to voluntary manslaughter as well as those who pleaded to murder. That contention is answered in detail, for example, in Flores, supra, 44 Cal.App.5th at pages 994-995 (concluding the contention "violates well-settled rules of construction" and "the remaining portions of section 1170.95 repeatedly and exclusively refer to murder, not manslaughter") and Sanchez, supra, 48 Cal.App.5th at pages 918-919 (explaining that "[s]pecifying that section 1170.95 applies to murder convictions both by trial and by guilty plea clarifies that it does not matter how the murder conviction was obtained for section 1170.95 to apply").
Defendant argues absurd consequences result from construing section 1170.95 to apply only to murder convictions, but all the cases we have cited explain why that is not the case. (E.g., Sanchez, supra, 48 Cal.App.5th at pp. 919-920; see also Cervantes, supra, 44 Cal.App.5th at p. 887 [plain reading of the statute is consistent with the legislative goal to correct the unfairness of the felony murder rule].)
Defendant argues that People v. Page (2017) 3 Cal.5th 1175 supports her position, but that case is about a different statute (section 1170.18) and does not control this case.
Defendant argues that construing section 1170.95 to exclude manslaughter convictions violates her constitutional rights to equal protection and due process. Defendant is mistaken, as explained in Sanchez, supra, 48 Cal.App.5th at pages 920-921 (equal protection) and Cervantes, supra, 44 Cal.App.5th at pages 888-889 (equal protection and substantive due process). Distinguishing between persons with murder convictions and persons with voluntary manslaughter convictions is not arbitrary, capricious, irrational, or unpredictable.
Defendant argues that "the more comprehensive and nuanced analysis" in In re R.G. (2019) 35 Cal.App.5th 141 supports her construction of section 1170.95, but it does not. R.G.—decided by the same division that later decided Cervantes—held that section 1170.95's petitioning procedure applies to juveniles, even though the text does not refer to juveniles and uses language not generally applicable in juvenile proceedings. (R.G., at pp. 144, 146-147.) R.G.'s holding was premised on several considerations specific to the juvenile law (see R.G., at pp. 148-151), and those considerations do not apply here.
2. Appointment of Counsel
Defendant also contends the trial court's denial of her petition without appointing counsel violated section 1170.95 and her state and federal constitutional rights to due process and the assistance of counsel. We disagree, as we explained in People v. Falcon (2020) 57 Cal.App.5th 272, 277-279, review granted January 27, 2021, S266041 (Falcon).
Falcon concerned a defendant who entered a plea of no contest to second degree murder. We held that appointment of counsel is mandatory only after the court has determined that a prima facie showing has been or can be made. (Falcon, supra, 57 Cal.App.5th at pp. 278-279, citing cases and adopting the persuasive analyses in those cases.) Here, no prima facie showing was or could be made because defendant was not convicted of murder and is ineligible for relief as a matter of law.
Falcon and the cases we cited involved convictions, by jury or plea, for murder, not manslaughter. The Supreme Court has granted review in all the cited cases, limiting the issues to (1) whether the superior court may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief, and (2) when the right to appointed counsel arises. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598; see also People v. Tarkington (2020) 49 Cal.App.5th 892, review granted Aug. 12, 2020, S263219; People v. Verdugo (2020) 44 Cal.App.5th 320, review granted Mar. 18, 2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, review granted Mar. 18, 2020, S260410.) After the opening brief was filed in this case, Cooper disagreed with the cited cases, concluding the right to counsel attaches "upon the filing of a facially sufficient petition that alleges entitlement to relief." (People v. Cooper (2020) 54 Cal.App.5th 106, 109, review granted Nov. 10, 2020, S264684.) We are unpersuaded by the Cooper analysis.
In Falcon, we further rejected the claim that denial of appointment of counsel violated the defendant's constitutional rights. (Falcon, supra, 57 Cal.App.5th at p. 279 ["Here we find section 1170.95 is an act of lenity. If the trial court acted erroneously in declining to appoint counsel, that error does not constitute a violation of [the defendant's] constitutional rights."]; see also People v. Daniel (2020) 57 Cal.App.5th 666, 676, 675 ["a petitioner's right to counsel under section 1170.95[, subdivision] (c) is not protected by the federal Constitution"; "failure to appoint counsel upon the filing of a facially sufficient petition under section 1170.95 is susceptible to review for prejudice," and "harmlessness is established if the record 'conclusively demonstrate[s] that [the petitioner] was ineligible for relief as a matter of law' "].)
In short, even if failure to appoint counsel was error—and we hold it was not—any error was harmless because a defendant convicted of manslaughter is ineligible for relief as a matter of law.
DISPOSITION
The order is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.