Opinion
G057618
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JULIAN JUAREZ, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Robin Urbanski, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 04CF0986) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Robin Urbanski, Deputy Attorney General for Plaintiff and Respondent.
On August 13, 2010, appellant Albert Julian Juarez pled guilty to two counts of attempted unpremeditated murder, three counts of street terrorism, two counts of felon in possession of a firearm, a count of sale of a controlled substance, and a count of first degree robbery. He admitted firearm use enhancements to the attempted murder and first degree robbery charges. Pursuant to plea agreement, he was sentenced to the agreed-upon term of 30 years imprisonment.
On March 1, 2019, appellant filed a petition seeking to vacate his attempted murder convictions pursuant to subsequently-enacted Penal Code section 1170.95. That petition was denied by the trial court on the basis that it did not "set forth a prima facie case for relief under the statute." The statute provides for relief for petitioners convicted of murder under a felony murder or natural and probable consequences theory. Since the complaint filed against petitioner was not based upon either of those theories, the court ruled he was not entitled to relief.
All further statutory references are to the Penal Code.
The petition erroneously stated he had been charged, prosecuted, and pled guilty to murder. --------
Appellant appealed, and we appointed counsel to represent him. Counsel filed a brief which set forth the procedural facts of the case (the facts of the crime itself are largely irrelevant because the argument is solely directed at appellant's plea and the application to it of § 1170.95). Counsel did not argue against his client, but advised us he could find no issues to argue on appellant's behalf. Appellant was invited to express his own objections to the proceedings against him and did so.
Appellant's own brief is largely taken up with complaints that could have been raised in his original appeal and are both time-barred by the passage of a decade and unreachable in a motion pursuant to section 1170.95. But he did raise a section 1197.5 issue, which appointed counsel had determined - correctly as it turned out - was unfounded. We were not sure this was not an issue on which appellant might possibly succeed, so we sought letter briefs from both sides.
Appellate counsel, to his credit, vigorously argued his client's right to section 1170.95 relief, and the Attorney General responded with a concise statement of the position he has taken on this issue throughout the state. The question is currently before the California Supreme Court.
With the aid of this briefing, we reconsidered the application of section 1170.95 to appellant's case and have also scoured the record for any other mistakes, as we are required to do when appellate counsel reports an inability to find an appellate issue. (People v. Wende (1979) 25 Cal.3d 436.) The passage of time since we ordered additional briefing has resulted in considerable discussion of this issue by our appellate colleagues. We now have the benefit of both their work and our own over the last 90 days in analyzing this question. All of it has convinced us appellant does not fall within the ambit of the statute because he was not convicted of murder; he pled guilty to attempted murder. He admitted to this in his Tahl form, and there is no relief available under section 1170.95 for someone who attempts murder.
We understand the arguments of counsel that this limitation leads to "unfair" and "absurd" results - arguments that have persuaded some of our colleagues who have written in the cases cited by appellant. But we feel those are arguments to be applied to statutes with language that is ambiguous. The language here is not ambiguous. The statute clearly and explicitly limits its application in its first words: "A person convicted of felony murder . . . 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 . . . ." (§ 1170.95.) That limitation disqualifies appellant; he was not convicted of murder and has no murder conviction to be vacated.
We find ourselves in agreement with the courts that have so held. As was stated almost 30 years ago in a similar challenge to a new statute, "We do not find the statute ambiguous. It expressly identifies the offenses within its scope, all of which are completed offenses. Had the Legislature meant to include attempts among the covered offenses, it could easily have done so . . . ." (People v. Jillie (1992) 8 Cal.App.4th 960, 963.)
We have been unable to find any other issues that might be argued in appellant's behalf. Our review is limited to issues pertaining to his section 1170.95 petition, and we can find no flaw in the handling of that. The order is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. GOETHALS, J.