Opinion
G057593
07-06-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE LYNN JOHNSON, Defendant and Appellant.
Rex Adam Williams, 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, William H. Shin, and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14NF2447) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Rex Adam Williams, 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, William H. Shin, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, Michelle Lynn Johnson was convicted of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) Johnson appeals from the trial court's order denying her petition for resentencing under section 1170.95. Because section 1170.95 applies only to murder convictions, the court properly denied Johnson's petition. We affirm the court's postjudgment order.
All further statutory references are to the Penal Code. --------
FACTS
In June 2014, the prosecution charged Johnson and a codefendant with first degree murder (§ 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and participating in a criminal street gang (§ 186.22, subd. (a); count 3.) In 2018, the prosecution amended the complaint to allege Johnson committed voluntary manslaughter (§ 192, subd. (a)), with a street gang enhancement (§ 186.22, subd. (b); count 4.)
In May 2018, Johnson pleaded guilty to the added charge of voluntary manslaughter and admitted the gang enhancement. According to the factual basis for the plea, Johnson aided and abetted another "who used honest but unreasonably deadly force killing" the victim, and committed the offense for the benefit of a criminal street gang. After accepting the plea, the court dismissed the remaining counts and allegations and sentenced Johnson to 13 years in prison.
In 2019, Johnson filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition, finding Johnson failed to state a prima facie case for relief because she was not convicted of murder.
DISCUSSION
Johnson asserts section 1170.95 applies to those whose manslaughter convictions resulted from a plea to manslaughter in lieu of murder, and therefore, she was entitled to a resentencing hearing. We disagree, and affirm the trial court's order denying her petition. I. Senate Bill No. 1437 (S.B. 1437) and Section 1170 .95
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 to "amend 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).)
Under section 1170.95, if the petitioner makes a prima facie showing, 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).)
II. Analysis
Johnson contends she made a prima facie showing under section 1170.95 because the statute must be construed to apply to defendants convicted of voluntary manslaughter. Not so.
"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." (Ibid.)
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 . . . ." (Ibid.) Section 1170.95 exclusively and repeatedly references murder. It makes no mention of manslaughter. By its clear language, 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.)
Lopez, supra, 38 Cal.App.5th at p. 1087, addressed an analogous situation. Lopez determined 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.) In support of its conclusion, the court referenced 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.) This reasoning is convincing.
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.' Additionally, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to determine whether to vacate 'the murder conviction.'" (Ibid.) Section 1170.95 refers exclusively to murder offenses and is silent on the crime of voluntary manslaughter. 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. Therefore, section 1170.95's resentencing provisions are inapplicable to the crime of voluntary manslaughter.
DISPOSITION
The court's March 11, 2019, postjudgment order denying Johnson's petition for resentencing is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. IKOLA, J.