Opinion
B328672
09-06-2024
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER HICKMAN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SA093406 . William L. Sadler, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Defendant and appellant Jennifer Hickman appeals from the denial, at the prima facie stage, of her petition for resentencing pursuant to Penal Code section 1172.6 (former § 1170.95).
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In August 2017, an information was filed charging defendant with murder (Pen. Code, § 187, subd. (a); count 1) and possession of a firearm by a felon with a prior violent conviction (§ 29900, subd. (a)(1); count 2). Firearm use allegations were alleged as to count 1 (§ 12022.53, subds. (b)-(d)). A gang allegation was alleged as to both counts (§ 186.22, subd. (b)(1)(C)).
In 2018, the Legislature passed Senate Bill 1437 (20172018 Reg. Sess.) amending Penal Code sections 188 and 189 to narrow accomplice liability for felony murder and eliminating the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also added section 1172.6 which set forth a procedure for individuals convicted of felony murder or murder under a natural and probable consequences theory to petition for resentencing. The amendments to sections 188 and 189 went into effect January 1, 2019.
On March 8, 2019, two months after the amendments went into effect, the parties advised the court of a proposed disposition in this case. The prosecutor's request to amend the information to add a count 3 for voluntary manslaughter (Pen. Code, § 192, subd. (a)), along with a gang allegation (§ 186.22, subd. (b)(1)(C)) and a personal firearm use allegation (§ 12022.5), was granted. Defendant pled no contest to voluntary manslaughter and admitted her prior strike conviction, the gang allegation and the firearm use allegation. The court accepted defendant's plea and waivers on the record.
In accordance with the terms of the plea agreement, the court sentenced defendant to a 42-year term in state prison (11-year upper term on manslaughter count, doubled due to the prior strike, plus consecutive 10-year terms for the gang and firearm use enhancements). Defendant was awarded 1,171 days (1,018 actual, 153 conduct) of presentence custody credits. The remaining counts were dismissed.
In 2021, Senate Bill 775 (2021-2022 Reg. Sess.) was passed which, as relevant here, expanded the scope of those entitled to seek relief pursuant to Penal Code section 1172.6 to defendants convicted of voluntary manslaughter.
In August 2022, defendant filed, in propria persona, a form petition for resentencing pursuant to Penal Code section 1172.6 and requested the appointment of counsel. Paragraph 3 of defendant's form petition (which states "I could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019") was left blank. The court appointed counsel for defendant, and the People filed opposition summarizing the facts of the crime and arguing defendant was the actual shooter and not entitled to relief.
A hearing was held on February 2, 2023. Defendant was not present but was represented by her appointed counsel. After entertaining argument from counsel, the court denied defendant's petition, finding that she failed to make a prima facie case and was "not statutorily eligible for relief." The court also noted that defendant was ineligible for relief because she was the actual shooter and had been charged as such and not as an accomplice.
This appeal followed.
DISCUSSION
Defendant argues she established a prima facie case for relief and was entitled to the issuance of an order to show cause and an evidentiary hearing. Defendant says the court, in concluding she was the actual killer to deny relief, must have relied on the factual summary in the prosecutor's opposition brief to make a factual finding against her, which is not allowed at the prima facie stage. Defendant requests we remand for further proceedings on her petition.
We conclude defendant's petition was properly denied as a matter of law at the prima facie stage. (People v. Ervin (2021) 72 Cal.App.5th 90, 101 [appellate court reviews de novo the denial of a resentencing petition at the prima facie stage].)
Penal Code section 1172.6 is a procedure providing retroactive sentencing relief for those defendants who were charged and convicted under a theory that is now invalid under the amended murder statutes that went into effect on January 1, 2019. Defendant pled to voluntary manslaughter and was convicted in March 2019. At the time she pled and was convicted, the new law was in effect. Defendant no longer faced the prospect of being convicted of murder or manslaughter under an invalid theory as the prosecution could not proceed under any such theory in light of the changes effected by Senate Bill 1437.
We agree with People v. Reyes (2023) 97 Cal.App.5th 292, 296 which held that sentencing relief under Penal Code section 1172.6 does not apply to defendants, like defendant here, who were convicted, whether by trial or plea, under current law. Defendant is ineligible for relief as a matter of law. She "is not the type of defendant this retroactive procedure was intended to benefit, and any contrary interpretation of this statute would lead to absurd results. The court did not err in denying the petition for resentencing, and a remand is not appropriate." (Reyes, at p. 299.)
The passage of Senate Bill 775, expanding the scope of relief under Penal Code section 1172.6 to individuals convicted of voluntary manslaughter, after defendant's conviction does not change the analysis.
People v. Lezama (2024) 101 Cal.App.5th 583, 590 (Lezama) recently concluded that a defendant who was charged with murder and pled guilty to voluntary manslaughter pursuant to a plea agreement after the passage of Senate Bill 1437, but before Senate Bill 775, was statutorily ineligible for relief and affirmed the summary denial of the defendant's resentencing petition.
In so doing, Lezama underscored the legislative history of Penal Code section 1172.6, in particular, a Senate Appropriations Committee report which stated the purpose of Senate Bill 775:" 'This bill would allow a person .... who was convicted of manslaughter when the prosecution was allowed to proceed on a theory of felony murder or murder under the natural and probable consequences doctrine to apply to have their sentence vacated and be resentenced if, among other things, the complaint, information, or indictment was filed to allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or attempted murder under the natural and probable consequences doctrine.' (Sen. Com. on Appropriations, Rep. on Sen. Bill No. 775 (2021-2022 Reg. Sess.) as amended Feb. 19, 2021, p. 3.)" (Lezama, supra, 101 Cal.App.5th at pp. 589590, italics added.)
Defendant here was not convicted of voluntary manslaughter at a time when the prosecution was allowed to proceed on any theory of murder invalidated by the amendments effected by the passage of Senate Bill 1437. Like the defendant in Lezama, defendant pled no contest to voluntary manslaughter "at a time when imputed malice theories had already been statutorily eliminated." (Lezama, supra, 101 Cal.App.5th at p. 590.)
We need not resolve defendant's claim her counsel was ineffective for failing to argue any authority for why an order to show cause should issue. As we have explained, defendant was ineligible as a matter of law, and counsel was not ineffective for failing to argue an unwinnable point.
DISPOSITION
The order denying defendant and appellant Jennifer Hickman's petition for resentencing is affirmed.
WE CONCUR: STRATTON, P. J. WILEY, J.