Opinion
G057575
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DUNG TIEN NGUYEN, Defendant and Appellant.
David P. Lamplin, 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, Assistant Attorney General, Idan Ivri and Charles S. Lee, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11WF0955) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. David P. Lamplin, 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, Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Dung Tien Nguyen was convicted of voluntary manslaughter. Defendant appeals from the trial court's order denying his petition for resentencing under Penal Code section 1170.95. Because section 1170.95 applies only to defendants convicted of murder, not voluntary manslaughter, we affirm the trial court's order.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant, along with several codefendants, was charged in an information with murder (§ 187, subd. (a) [count 1]), attempted murder (§§ 664, subd. (a), 187, subd. (a) [count 2]), shooting at an occupied motor vehicle (§ 246 [count 3]), and street terrorism (§ 186.22, subd. (a) [count 5]). The information alleged as sentencing enhancements that in committing the first three counts, defendant was a gang member who had vicariously discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), and had committed those crimes for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)).
As part of a plea agreement, defendant signed the following factual basis statement: "In Orange County, California, on March 20, 2011: I aided and abetted in the unlawful killing of John Doe, without malice. I committed the killing for the benefit of, at the direction of, and in association with Tiny Rascal & Hellside Gang (TRG), with the specific intent to promote, further, and assist in criminal conduct by members of that gang." Under the plea agreement, defendant pleaded guilty to voluntary manslaughter (with which the information was amended by interlineation) and admitted the criminal street gang enhancement as to that offense. All other counts and enhancements were dismissed. The trial court sentenced defendant to a total of 16 years in prison: six years for voluntary manslaughter, and 10 years for the criminal street gang sentencing enhancement.
In March 2019, defendant filed a resentencing petition pursuant to section 1170.95. The trial court denied defendant's petition: "The petition does not set forth a prima facie 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 or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors." Defendant timely appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted in 2018 "to limit application of the felony-murder rule and murder based on the natural and probable consequences doctrine by modifying the mens rea element of those crimes." (People v. Solis (2020) 46 Cal.App.5th 762.) In addition to amending sections 188 and 189 regarding the elements of murder, the legislation also added section 1170.95 (added by Stats. 2018, ch. 1015, § 4); that statute created a procedure by which a defendant previously convicted of murder under either of those theories could file a petition for resentencing. (Ibid.)
Defendant argues that the trial court erred in finding he was not entitled to seek relief under section 1170.95. Defendant contends that the statute is ambiguous as to who may seek relief under its provisions, and that ambiguity should be resolved to allow resentencing for those who were charged with felony murder or murder under the natural and probable consequences doctrine, but who pled guilty to voluntary manslaughter. Three recent cases have reached the opposite conclusion. We agree with their analyses and holdings, and therefore affirm the trial court's postjudgment order.
People v. Cervantes (2020) 44 Cal.App.5th 884 rejected an argument similar to defendant's argument here, based on the plain language of the statute. "Here the language of the statute unequivocally applies to murder convictions. There is no reference to the crime of voluntary manslaughter. To be eligible to file a petition under section 1170.95, a defendant must have a first or second degree murder conviction. The plain language of the statute is explicit; its scope is limited to murder convictions." (Id. at p. 887.)
The court also rejected the defendant's argument that the failure to allow those convicted of voluntary manslaughter to seek relief under section 1170.95 violated equal protection and/or substantive due process (People v. Cervantes, supra, 44 Cal.App.5th at pp. 888-889), an argument that is not pursued in the present case.
People v. Flores (2020) 44 Cal.App.5th 985 (Flores) also concluded that the express terms of section 1170.95 apply to those convicted of murder, not voluntary manslaughter. (Flores, supra, at p. 993.) "Through its repeated and exclusive references to murder, the plain language of section 1170.95 limits relief only to qualifying persons who were convicted of murder. Section 1170.95 does not mention, and thus does not provide relief to, persons convicted of manslaughter, which, 'while a lesser included offense of murder, is clearly a separate offense . . . .' [Citation.] Had the Legislature intended to make section 1170.95 available to defendants convicted of manslaughter, it easily could have done so. [Citation.] The absence of any reference to manslaughter implies the omission was intentional." (Ibid.)
In Flores, supra, 44 Cal.App.5th at pages 994 to 995, the defendant argued that section 1170.95 must be read to apply to those who plead guilty to voluntary manslaughter rather than face trial for felony murder or murder under a natural and probable consequences theory. The defendant noted that a petitioner seeking relief under section 1170.95, subdivision (a)(2) must establish, among other things, that he or she "'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.'" The appellate court rejected this argument for two reasons.
First, the court noted that the defendant's interpretation of section 1170.95 "place[d] outsized importance on a single clause to the exclusion of the provision's other language" (Flores, supra, 44 Cal.App.5th at p. 995), particularly the many other references throughout Senate Bill No. 1437 regarding murder, not voluntary manslaughter. (Flores, supra, at p. 995.)
Second, the court rejected the defendant's argument because "the statutory language on which [the defendant] relies does not 'necessarily suggest' that section 1170.95 is available to persons convicted of voluntary manslaughter because criminal defendants can, and do, plead guilty to the crime of murder." (Flores, supra, 44 Cal.App.5th at p. 995.)
In People v. Turner (2020) 45 Cal.App.5th 428 (Turner), the defendant also made an argument that the language of section 1170.95, subdivision (a)(2) can apply to a person who accepted a plea offer for voluntary manslaughter. The appellate court rejected that argument because the introductory language of section 1170.95, subdivision (a) applies only to those "convicted of felony murder or murder under a natural and probable consequences theory." (Turner, supra, at p. 436.)
The appellate court then conducted a thorough review of the legislative history of both Senate Bill No. 1437 and Senate Concurrent Resolution No. 48, which preceded Senate Bill No. 1437 and highlighted the need for reform "to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under [the] 'natural and probable consequences' doctrine." (Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018 Reg. Sess.) res. ch. 175, p. 1.) The court reached the following conclusions, based on the legislative history: "First, the Legislature understood the distinction between murder and manslaughter and focused its efforts on revising accomplice liability under a felony murder or natural and probable consequences theory. Second, nearly every committee report and analysis made note of the life sentences imposed for defendants convicted of first or second degree murder. One report based cost estimates on the number of inmates serving terms for first or second degree murder. Finally, the petitioning procedure was restricted by amendment to apply to persons convicted of felony murder or murder under a natural and probable consequences theory. Viewed together, the legislative history confirms that a defendant who faces murder liability under the natural and probable consequences doctrine, but pleads guilty to manslaughter in lieu of trial, is not eligible for resentencing under section 1170.95." (Turner, supra, 45 Cal.App.5th at p. 438.)
Here, as in Flores and Turner, defendant argues that section 1170.95 is ambiguous as to whether a person who pleads guilty to voluntary manslaughter, rather than proceed to trial charged with felony murder or murder under the natural and probable consequences doctrine, may file a resentencing petition. Defendant relies on the language of section 1170.95, subdivision (a)(2), which is italicized post:
"(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, underscoring and italics added.)
However, the first clause of section 1170.95, subdivision (a) makes clear that only a person convicted of murder may file a petition for resentencing. This clear language resolves any alleged ambiguity in the italicized language of section 1170.95, subdivision (a)(2).
The trial court did not err by denying defendant's petition for resentencing under section 1170.95.
DISPOSITION
The postjudgment order is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.