Opinion
G057573
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DIANA CAROLINA LOPEZ, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF1703) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 2015, the prosecution charged defendant Diana Carolina Lopez and codefendant Jasper Bear Belknap with felony murder. Lopez pleaded guilty to voluntary manslaughter as an aider and abettor. The trial court imposed a negotiated sentence of 11 years in state prison.
In 2018, the Legislature limited accomplice liability for murder. Generally, aiders and abettors can no longer be convicted of murder under the felony-murder rule or the natural and probable consequences doctrine. The Legislature also enacted a statute allowing eligible aiders and abettors previously convicted of murder to petition trial courts to vacate their prior convictions and be resentenced. (Pen. Code, § 1170.95, as added by Stats. 2018, ch. 1015, § 4, eff. Jan 1, 2019.)
All further undesignated statutory references are to the Penal Code.
In 2019, Lopez filed a petition under section 1170.95. The trial court found no prima facie basis to grant relief because Lopez was not convicted of murder; therefore, the court summarily denied Lopez's petition.
On appeal, Lopez argues the trial court's summary denial of her petition constituted reversible error because it violated the legislative intent of Senate Bill No. 1437 (2017-2018 Reg. Sess.), her right to appointment of counsel as set forth in section 1170.95, subdivision (c), her right to due process, and her right to equal protection of the law. We disagree and affirm the court's order.
I
FACTS AND PROCEDURAL HISTORY
On June 23, 2015, Lopez and Belknap engaged in a robbery which resulted in the death of Felipe L. That same month, the prosecution filed a felony complaint, alleging one felony count of special circumstances murder. On May 18, 2016, an information was filed charging the same crime.
On October 2, 2017, Lopez pleaded guilty to one count of voluntary manslaughter, based upon a plea agreement with the prosecutor. With the assistance of her attorney, Lopez completed and signed a seven-page form titled "Advisement and Waiver of Rights For a Felony Guilty Plea" (plea form). On its first page, Lopez initialed a paragraph stating the following: "I understand that I am pleading guilty, and admitting the following offenses, special punishment allegations, and prior convictions carrying the possible penalties as follows: [¶] Ct: 1; Charge: 187(a); Sentencing Range: 25 yr. [sic] to life - 190.2(a); Enhancements: 17 - life [felony murder]; [¶] Ct: 2; Charge: 192(a); Sentencing Range: 3/6/11 [circle indicating 11]." The trial court convicted Lopez of voluntary manslaughter and imposed an upper term sentence of 11 years in prison. (§ 193, subd. (a).)
On March 26, 2019, defendant filed a section 1170.95 petition. Lopez declared: "I pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule of the natural and probable consequences doctrine." Lopez further stated: "I request that this court appoint counsel for me during this re-sentencing process."
On April 3, 2019, the trial court conducted a hearing on Lopez's section 1170.95 petition. Neither the parties nor a court reporter were present. The court summarily denied the petition. According to the court's minute order: "The petition does not set forth a prima face [sic] case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder . . . ."
II
DISCUSSION
Lopez makes four contentions challenging the trial court's summary denial of her petition. First, Lopez contends the Legislature intended her conviction to be eligible under section 1170.95, given she had been charged with felony murder. Second, Lopez also contends the court failed to appoint her counsel as required by section 1170.95, subdivision (c). Third, Lopez contends the court's summary denial amounted to a violation of due process. Finally, Lopez contends that Senate Bill No. 1437 violates equal protection principles. Because each contention is based upon statutory interpretation, we review them de novo. (See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) A. Principles of Statutory Interpretation
When construing a statute, our goal is to ascertain legislative intent to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) The words of a statute are to be given their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.) If the statutory language is unambiguous, "we presume the Legislature meant what it said, and the plain meaning of the statute governs." (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
Courts may neither insert words nor delete words in an unambiguous statute; the drafting of statutes is solely a legislative power. (People v. Hunt (1999) 74 Cal.App.4th 939, 945-946.) "In construing this, or any, statute, our office is simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language." (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)
"Statutory language is not considered in isolation. Rather, we 'instead interpret the statute as a whole, so as to make sense of the entire statutory scheme.'" (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) We must also "interpret legislative enactments so as to avoid absurd results." (People v. Torres (2013) 213 Cal.App.4th 1151, 1158.) B. The Statutory Framework and Language of Section 1170 .95
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Though under the felony-murder rule, a defendant can be convicted of murder without malice if a victim is killed during a designated inherently dangerous felony. (See CALCRIM No. 540A ["A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent"].)
Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. (§ 31.) An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) Liability for intentional, target offenses is known as "direct" aider and abettor liability; liability for unintentional, nontarget offenses is known as the ""'natural and probable consequences" doctrine.'" (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
Effective January 1, 2019, the Legislature enacted Senate Bill No. 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) As a result, the Legislature amended section 188 (defining malice), by statutes 2018, chapter 1015, section 2, effective January 1, 2019, and section 189 (defining the degrees of murder), by statutes 2019, chapter 497, section 192, effective January 1, 2020.
Section 1170.95 provides a procedure for aiders and abettors to challenge their previous murder convictions under prior statutes and legal theories. Section 1170.95 designates: 1) the threshold requirements for relief; 2) the requirements of the petition; and 3) the procedural requirements.
1. The Threshold Requirements for Relief
"(a) 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 when all of the following conditions apply:
"(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), italics added.)
2. The Requirements of the Petition
"(b)(1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney . . . , and on the attorney who represented the petitioner in the . . . county where the petitioner was convicted. . . . The petition shall include all of the following:
"(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).
"(B) The . . . court case number and year of the petitioner's conviction.
"(C) Whether the petitioner requests the appointment of counsel.
"(2) If any of the information required by this subdivision is missing from the petition . . . , the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(1),(2), italics added.)
3. The Procedural Requirements
"(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days . . . and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.
"(d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner . . . , provided that the new sentence, if any, is not greater than the initial sentence. . . .
"(2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner.
"(3) At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, . . . the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1170.95, subds. (c) & (d).) C. Analysis
1. Ineligible Conviction
Senate Bill No. 1437 affects murder convictions; it does not apply to convictions for voluntary manslaughter. None of the added or amended sections make any reference to voluntary manslaughter. (§§ 188, 189, 1170.95.) "If the plain language of the statute is clear and unambiguous, [the courts'] inquiry ends, and [one] need not embark on judicial construction." (People v. Johnson (2002) 28 Cal.4th 240, 244.)
Another appellate court recently held that Senate Bill No. 1437 does not apply to the crime of attempted murder, based upon reasoning that is equally apt here. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175 (Lopez).) In Lopez, the appellate court concluded the language of section 1170.95 itself evidenced the Legislature's intent to limits its application to murder convictions. (Lopez, at pp. 1104-1105, accord People v. Medrano (2019) 42 Cal.App.5th 1001, 1016-1017.) The Lopez court noted the Legislature consistently referred to relief being available to only those defendants charged with first or second degree felony murder or murder under the natural and probable consequences doctrine, and to only those defendants sentenced to first or second degree murder. (Lopez, at p. 1105.) The court also observed: "The plain language meaning of Senate Bill [No.] 1437 as excluding any relief for individuals convicted of attempted murder [, i.e., not murder] is fully supported by its legislative history." (Ibid.)
We agree with the analysis of the Lopez court. (See accord People v. Munoz (2019) 39 Cal.App.5th 738, 753-754, review granted Nov. 26, 2019, S258234 (Munoz).) Thus, as Lopez was not convicted of murder in this case, the trial court did not err by summarily denying her section 1170.95 petition for relief.
We are not persuaded by Lopez's arguments for a contrary interpretation of section 1170.95. Among them, Lopez asserts that "[t]o avoid ambiguity and fully effectuate the intent of the legislature, [Senate Bill No.] 1437 and the resentencing provisions in section 1170.95 should be interpreted to apply to all homicide convictions, including voluntary manslaughter, when those convictions result from a guilty plea in lieu of a trial on felony-murder charges." (Italics added.) While we acknowledge the broad wording of section 1170.95, subdivision (a)(2), cited by Lopez, we do not read the subdivision in isolation. (Bonnell v. Medical Board, supra, 31 Cal.4th at p. 1261.)
Instead, interpreting the statute as a whole (Bonnell v. Medical Board (2003) 31 Cal.4th at p. 1261), we point out that the preceding subdivision—section 1170.95, subdivision (a)—plainly specifies that a person authorized to file a petition for resentencing is "[a] person convicted of felony murder or murder under a natural and probable consequences theory." In other words, the operative effect of subdivision (a) renders the proffered reading of subdivision (a)(2) moot with respect to petition eligibility. By the plain language of section 1170.95, subdivision (a), Lopez's conviction of voluntary manslaughter—established for the trial court by the record underlying Lopez's petition—was not eligible for resentencing. Accordingly, her contention that she presented a prima facie case is without merit and the trial court did not err in summarily denying her petition on that ground.
2. Appointment of Counsel
Lopez argues the trial court erred in not appointing counsel for her. Specifically, Lopez asserts: "Because [she] requested the appointment of counsel, the trial court was required by [section 1170.95] to appoint an attorney for her, and to include that attorney's participation in the resentencing process. Additionally, the prosecutor was required to file a response to appellant's petition. [Lopez's] appointed attorney could then file a reply to any opposition filed by the prosecutor. The parties' attorneys must be involved in the process." Lopez cites to the Legislative Counsel's Digest to Senate Bill No. 1437 and discusses section 1170.95's two instances of the word "shall" to argue that appointment of counsel was mandatory regardless of the court's determination about prima facie merit. We are not persuaded.
As mentioned above, under section 1170.95, subdivision (a), "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court . . . ." (Italics added; see ante, pt. II. C.1.) Within the section 1170.95 petition, the petitioner may further request the appointment of counsel. (§ 1170.95, subd. (b)(1)(C).) But once a petitioner has filed a section 1170.95 petition—whether the petition includes a request for counsel or not—the statute provides: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions . . . ." (§ 1170.95, subd. (c), italics added.) Thus, a trial court is not first required to appoint counsel for the petitioner before reviewing the petitioner's section 1170.95 petition and making the threshold prima facie determination as to whether the petitioner falls within the provisions of the statute.
Further, the Legislature must have intended that when a person files a section 1170.95 petition, the court may look beyond the four corners of the petition—to the underlying case and the record of conviction—in order to determine whether the petitioner actually falls within the provisions of the statute. (See Meyer v. Glenmoor Homes, Inc. (1966) 246 Cal.App.2d 242, 251 ["'Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence'"]; see also In re Estate of Woodson (1939) 36 Cal.App.2d 77, 80 ["Prima facie evidence is not conclusive evidence; it simply denotes that the evidence may suffice as proof of a fact until or unless contradicted and overcome by other evidence"].)
In sum, we find that the Legislature intended trial courts to implement the procedural provisions of section 1170.95 exactly as the court did in this case. That is, the court reviewed Lopez's petition, compared it to Lopez's underlying case, and determined that she was not actually a person that had been convicted of murder, as Lopez had claimed in her section 1170.95 petition.
Lopez's proposed interpretation of section 1170.95—that the court must appoint an attorney for every person that asks for one (and prior to making the prima facie determination)—would violate the statutory framework and would lead to absurd results. For instance, suppose a person convicted of making criminal threats (§ 422) filed a section 1170.95 petition and asked for an attorney. Under the plain meaning of the statute, the court would simply need to review its records in order to summarily deny the petition. But according to Lopez's proposed interpretation of the statute, the court would first need to make an unwarranted appointment of counsel before ruling that the petitioner did not make a prima facie showing. The Legislature could not have intended such an absurd waste of time and resources. Thus, the trial court did not commit error by making its prima facie determination without first appointing Lopez counsel.
We reject Lopez's arguments for a contrary conclusion. Among them, Lopez asserts that the Legislature's use of the word "shall" in section 1170.95, subdivision (c), denotes an absolute duty to appoint counsel independent of prima facie eligibility. We disagree. The subdivision's initial sentence first establishes the court's duty to determine prima facie eligibility, using the same word, "shall," that is relied upon by Lopez. This initial instance of "shall" plainly precedes the subsequent instances cited by Lopez, regarding attorney appointment and participation. Accordingly, reading the statutory language as a whole (Bonnell v. Medical Board (2003) 31 Cal.4th at p. 1261), Lopez does not persuade us that a trial court commits error by first determining prima facie eligibility, under the initial "shall" of section 1170.95, subdivision (c), before moving on to any remaining procedure contemplated by the subdivision. Moreover, Lopez's proffered construction of subdivision (c), as establishing an absolute duty to appoint counsel solely because it is requested, not only would allow a waste of time and resources, it would contradict the purpose of Senate Bill No. 1437 to address eligible murder convictions and not ineligible manslaughter convictions. (See ante, at pt. II.C.1; see also Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 ["Our fundamental task in interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose"].)
3. Due Process Claim
Lopez further argues that the "summary, sua sponte process employed by the trial court to dismiss petition denied [her of] her rights to procedural due process of law and to counsel as guaranteed by both the California and federal constitution." In her opening brief on appeal, Lopez generally cites to article 1, section 15 of the California Constitution and to the 5th, 6th and 14th Amendments to the United States Constitution. However, Lopez does not specify any clause within those authorities and, more importantly, provides no meaningful analysis as to how they apply to her claims. In her reply brief, she addresses the Attorney General's citation to People v. McKee (2010) 47 Cal.4th 1172, 1191, and then cites to case law to argue that the procedural framework of section 1170.95, subdivision (c), "create[d] a liberty interest for petitioners."
Based upon the above briefing, we treat Lopez's due process claim as waived. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793; see Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 ["'Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument'"].) Notwithstanding, in regard to Lopez's belated assertion that section 1170.95, subdivision (c), created a liberty interest that triggered due process protection, we note the assertion would fail because it is derivative of her claim to a statutory right to counsel that we find unpersuasive. (See ante, at pt. II.C.2.) In sum, Lopez has not met her burden to show a violation of her right to due process.
4. Equal Protection
Finally, Lopez argues that section 1170.95 violates equal protection principles. We disagree. "'"Persons convicted of different crimes are not similarly situated for equal protection purposes." [Citations.] "[I]t is one thing to hold, as did [citation] that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally."'" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)
Here, through Senate Bill No. 1437 and section 1170.95, the Legislature has determined that accomplices convicted of murder are to be treated differently than those convicted of other crimes. This legislative judgment simply does not implicate equal protection principles. (See Munoz, supra, 39 Cal.App.5th at p. 760 ["The remedy for any potentially inequitable operation of section 1170.95 lies with the Legislature. If the Legislature concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill [No.] 1437's reach, it has only to amend the law"].)
We reject Lopez's attempt to characterize section 1170.95 as a law that distinguishes between criminal defendants based upon the charges brought against them. "'[A] threshold requirement of any meritorious equal protection claim "is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]" [Citation.] "This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'"'" (People v. Cruz (2012) 207 Cal.App.4th 664, 674.) As discussed above, section 1170.95 clearly bases its treatment of individuals based upon their convictions and not the charges that were brought against them. (See ante, at pt. II. C.1.) In any case, even if equal protection principles were implicated, we agree with the Attorney General that "the Legislature, in order to maintain the efficient use of state resources, had a rational basis to choose who will benefit from Senate Bill [No.] 1437 and who will not." In sum, section 1170.95 did not violate Lopez's state and federal rights to equal protection under the law.
III
DISPOSITION
The trial court's order denying the section 1170.95 petition is affirmed.
MOORE, ACTING P. J WE CONCUR: IKOLA, J. THOMPSON, J.