Opinion
A160489
07-16-2021
THE PEOPLE, Plaintiff and Respondent, v. MANNY KAMA LIU, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC55569C
Margulies, Acting P. J.
Defendant Manny Kama Liu appeals the trial court's order denying his petition for resentencing pursuant to Penal Code section 1170.95. Because defendant is ineligible for relief as a matter of law, we affirm the trial court's order.
All statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged in an amended multi-defendant information with murder (§ 187, subd. (a); count 1); five counts of attempted murder (§§ 187, subd. (a), 664; counts 2, 8-11); being an accessory to murder (§§ 187, subd. (a), 32; count 14); and 11 counts of robbery (§ 212.5, subd. (c); counts 3-7, 12-13, 15-18). The information further alleged multiple firearm and arming enhancements.
Pursuant to a negotiated agreement, defendant pleaded no contest to the attempted murder charges, the robbery charges, being an accessory to murder, and the arming allegations related to most of the offenses. The remaining counts and allegations were dismissed.
On July 13, 2005, the trial court sentenced defendant to 36 years 4 months in state prison.
In January 2019, defendant filed a resentencing petition under section 1170.95. The trial court issued an order to show cause and held a hearing on defendant's section 1170.95 petition. The trial court denied defendant's petition, reasoning that section 1170.95 did not apply to defendant because he was convicted of attempted murder, not murder.
II. DISCUSSION
A. Eligibility for Resentencing Under Section 1170.95
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that a principal act with malice aforethought. Under the new law, “[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 section 189 to provide that a defendant who was not the actual killer and did not have the intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).)
Senate Bill 1437 also added section 1170.95, which authorizes “[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 and to be resentenced on any remaining counts” if three conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) 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. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).) Any petition that fails to make “a prima facie showing that the petitioner falls within the provisions of [section 1170.95]” may be denied without a hearing. (§ 1170.95, subds. (c) & (d).)
B. Analysis
Defendant first contends we must reverse the trial court's denial of his section 1170.95 petition because his five attempted murder convictions are not “categorically ineligible” for relief. Specifically, defendant argues he should be resentenced because Senate Bill 1437 abrogates accomplice liability for attempted murder under the natural and probable consequences doctrine.
Appellate courts disagree as to whether Senate Bill 1437 applies to attempted murder, whether it applies only prospectively, or whether it applies both prospectively and retrospectively to nonfinal convictions. (People v. Harris (2021) 60 Cal.App.5th 557, 565 (Harris), review granted Apr. 21, 2021, S267529; People v. Love (2020) 55 Cal.App.5th 273, 278-279, review granted Dec. 16, 2020, S265445 [summarizing the split of authority].) The issue is currently before the California Supreme Court. (See People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, S258175.) We need not weigh in on the controversy here, however, because “[defendant's] attempted murder conviction is final, ” and “[n]o court has held that Senate Bill 1437 applies retroactively to final convictions of attempted murder.” (Harris, at p. 565.) Pending guidance from our high court, we agree with the unanimous consensus of the California Courts of Appeal that Senate Bill 1437 does not apply retroactively to final convictions of attempted murder.
We reach this conclusion based on the plain language of section 1170.95, which allows a “person convicted of felony murder or murder under a natural and probable consequences theory” to file a petition to have his or her “murder conviction vacated.” (§ 1170.95, subd. (a), italics added.) Subdivision (d)(1) of section 1170.95 permits the trial court to conduct a hearing “to determine whether to vacate the murder conviction” and subdivision (d)(2) similarly refers only to a “murder conviction.” Because the statute does not refer to attempted murder, the plain language refutes defendant's contention that the Legislature intended section 1170.95 to apply to attempted murder. (See Lopez, supra, 38 Cal.App.5th at pp. 1104-1105, rev. granted; People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review granted Mar. 11, 2020, S259948.)
Defendant acknowledges that courts have reached this conclusion based on the plain language of the statute but urges us to “part ways” with these decisions because the construction they endorse leads to absurd consequences and violates equal protection. We reject defendant's invitation.
We cannot agree that the exclusion of attempted murder from section 1170.95's resentencing procedure results in absurd consequences that the Legislature could not have intended. Contrary to defendant's contention that there is “no logical reason” for such a choice, our courts have articulated several plausible rationales. (See, e.g., People v. Larios (2019) 42 Cal.App.5th 956, 970 (Larios), review granted Feb. 26, 2020, S259983 [Legislature's decision to exclude relief for attempted murder convictions can be rationalized “based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 225 [“Because the punishment for murder is so much more severe than the punishment for attempted murder, the Legislature may have wished to limit Senate Bill 1437's ameliorative reforms to those instances where it perceived the disconnect between culpability and punishment to be most glaring.”]; Lopez, supra, 38 Cal.App.5th at pp. 1111-1112, rev. granted [disparity in culpability and financial costs are rational reasons for limiting sentencing reform to murder convictions]; People v. Munoz (2019) 39 Cal.App.5th 738, 765 (Munoz), review granted Nov. 26, 2019, S258234 [“balancing the costs involved, the fact the penalties for attempted murder are less severe than for murder, and the length of prison terms mandated for many potentially relevant felonies, ” Legislature could have rationally decided to extend relief to those convicted of murder, but not attempted murder].)
We similarly reject defendant's argument that limiting eligibility for section 1170.95 relief to those defendants convicted of felony murder or murder under a natural and probable consequences theory violates federal and state equal protection principles.
To sustain a federal or state equal protection claim, the first inquiry in the analysis is whether the legislative classification affects two or more similarly situated groups in an unequal manner. (People v. Noyan (2014) 232 Cal.App.4th 657, 666.) Second, where, as here, the legislative classification does not reach a suspect class or fundamental right, the classification does not violate equal protection if it bears a rational relationship to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201; People v. Wilkinson (2004) 33 Cal.4th 821, 836-838 [applying rational basis review to equal protection challenge regarding disparities in criminal sentencing statutes]; Munoz, supra, 39 Cal.App.5th at p. 762, rev. granted [since a “criminal defendant does not have a fundamental interest in a specific term of imprisonment.... the rational basis test applies to equal protection claims based on sentencing disparities”].)
Defendant's equal protection argument fails on both prongs. First, he is not similarly situated to defendants convicted of murder, because murder and attempted murder are separate crimes subject to separate punishments. (Munoz, supra, 39 Cal.App.5th at pp. 760-761, rev. granted; Lopez, supra, 38 Cal.App.5th at pp. 1109-1110, rev. granted.) But even assuming the two groups of offenders are similarly situated, there is a rational basis, as discussed above, for limiting section 1170.95's scope to encompass only certain murder convictions and to exclude convictions for attempted murder, based on the financial costs as well as the disparity in culpability and penalties for murder and attempted murder. (Lopez, at pp. 1111-1112; Munoz, at pp. 762-768; Larios, supra, 42 Cal.App.5th at p. 970, rev. granted.) Thus, limiting sentencing relief under section 1170.95 to certain defendants convicted of murder and excluding defendants convicted of attempted murder does not violate equal protection under either the United States or California Constitutions.
Defendant argues that the financial costs rationale discussed by the Lopez court ignores the “enormous savings which would necessarily result from resentencing people like [defendant] who are currently serving lengthy state prison sentences for attempted murder....” As the Munoz court explained, however, the possibility of cost savings resulting from reduced incarceration expenses “does not compel a finding of irrationality.” (Munoz, supra, 39 Cal.App.5that p. 766, rev. granted.) Further, “in balancing the costs involved, ... the Legislature could rationally have determined that extending Senate Bill 1437 relief to attempted murderers would put too great a strain on state resources, while resultingin most cases-in insignificant decreases in the sentences served for attempted murder convictions.” (Id. at p. 765, italics added.)
Finally, defendant argues that because section 1170.95, subdivision (a)(2) allows the filing of a petition by a petitioner who “accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder, ” he should be eligible for resentencing. Again, we reject this argument because it contravenes the plain language of the statute. As previously discussed, the text of the statute makes clear that resentencing relief is available only to defendants convicted of murder. (People v. Paige (2020) 51 Cal.App.5th 194, 200-202.) The introductory language of section 1170.95, subdivision (a) provides that relief is only available to those “convicted of... murder” to have their “murder conviction vacated.” Under subdivision (d), the court holds a hearing “to determine whether to vacate the murder conviction” and the parties may stipulate the petition “is eligible to have his or her murder conviction vacated.” (§ 1170.95, subd. (d)(1) & (2).) “[R]ead in the context of the statute as a whole, considering both its structure and its language, subdivision (a)(2) cannot reasonably be understood to encompass persons who accept a plea offer in lieu of trial for a crime other than murder.” (Paige, at p. 202.)
In sum, because defendant was convicted of attempted murder, not murder under a felony-murder or natural and probable consequences theory, he is ineligible for relief under Senate Bill 1437.
III. DISPOSITION
The trial court's order denying defendant's section 1170.95 petition is affirmed.
WE CONCUR: Banke, J., Sanchez, J.