Opinion
G057588
10-04-2019
THE PEOPLE, Plaintiff and Respondent, v. JORGE ALBERTO PIMENTEL, Defendant and Appellant.
Jorge Alberto Pimentel, in pro. per.; and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 01CF0502) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Jorge Alberto Pimentel, in pro. per.; and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jorge Alberto Pimentel appeals from the postjudgment order denying his petition for resentencing under Penal Code section 1170.95. (All further statutory references are to the Penal Code.) Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel identified a potential issue to assist us in our independent review. We provided Pimentel 30 days to file written argument on his own behalf; he did so.
We have examined the entire record, appointed counsel's Wende/Anders brief, and Pimentel's supplemental letter brief; we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
As set forth in our prior opinion People v. Pimentel et al. (Sept. 12, 2003, G030730) [nonpub. opn.] (Pimentel I), Pimentel was found guilty by a jury of attempted deliberate, premeditated murder, street terrorism, and possession of a firearm while on probation. The jury also found Pimentel committed the attempted murder for the benefit of a criminal street gang, and in so doing, vicariously discharged a firearm, causing great bodily injury. The trial court imposed, inter alia, a life term with the possibility of parole for the attempted murder offense, plus a consecutive term of 25 years to life for the firearm sentencing enhancement as to that offense.
In Pimentel I, supra, G030730 we affirmed the judgment of conviction. We rejected Pimentel's arguments of instructional error, insufficiency of the evidence to support the finding that the attempted murder was committed for the benefit of a criminal street gang, and abuse of discretion by the trial court in ordering Pimentel and his co-defendant to pay direct restitution in the amount of $10,469.49 to the victim of the shooting. We remanded with directions to the trial court to calculate the number of custody credits to be awarded to Pimentel and his co-defendant, based on their serving 476 actual days in presentence custody. (The trial court had believed they had spent only 459 days in presentence custody.)
More than 15 years after Pimentel I, supra, G030730 in January 2019, Pimentel filed a petition seeking resentencing under section 1170.95. Pimentel did not request the appointment of counsel in his petition and the record does not otherwise reflect that he requested counsel under section 1170.95, subdivision (b)(1)(C). The trial court denied the petition, stating in its minute order: "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." Pimentel appealed.
ANALYSIS
In the Wende/Anders brief filed in the instant appeal, appellate counsel suggests we consider whether Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which took effect on January 1, 2019, applies to the crime of attempted murder, and, if it does, further consider whether Pimentel's attempted murder conviction was tried under a theory of natural and probable consequences and/or felony murder. As we explain, Senate Bill No. 1437 does not apply to the crime of attempted murder.
Senate Bill No. 1437 "was enacted 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).) Substantively, Senate Bill [No.] 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability." (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The legislation also created section 1170.95, which permits defendants "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the [sentencing] court . . . to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." (Id., subd. (a).)
Section 1170.95 establishes three requirements for relief: "(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." (Id., subd. (a)(1)-(3).) "A trial court that receives a petition under section 1170.95 '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.' (§ 1170.95, subd. (c).)" (People v. Martinez, supra, 31 Cal.App.5th at p. 723.)
Here, Pimentel was not convicted of murder, but of attempted murder. Senate Bill No. 1437 affects murder convictions; it does not apply to convictions for attempted murder. By its plain terms, it applies only to felony murder or murder under a natural and probable consequences theory. None of the sections added or amended by Senate Bill No. 1437 makes any reference to attempted murder. (§§ 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.)
In People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, the appellate court held that Senate Bill No. 1437 does not mention the crime of attempted murder, much less modify accomplice liability for that crime. The court concluded the "Legislature's obvious intent to exclude attempted murder from the ambit of the Senate Bill [No.] 1437 reform" was evidenced by the language of section 1170.95 itself, as it limits its application to murder convictions. (People v. Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.) The appellate court also observed: "The plain language meaning of Senate Bill [No.] 1437 as excluding any relief for individuals convicted of attempted murder is fully supported by its legislative history." The court noted the Legislature consistently referred to relief being available to those charged with first or second degree felony murder or murder under the natural and probable consequences doctrine, and to those sentenced to first or second degree murder. (Id. at p. 1105; see People v. Munoz (Sep. 6, 2019, B283921) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 843, *34-35] ["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"].)
As Pimentel was not eligible for relief provided under Senate Bill No. 1437, the trial court did not err by denying his petition under section 1170.95.
In his supplemental letter brief, in addition to raising the Senate Bill No. 1437 issue, which is not an arguable issue for the reasons stated ante, Pimentel asks: "And does (People v. Chiu) (2014) 59 Cal.4th 155 on jury instruction on aiding and abetting? On the gang allegations People v. Sanchez? Also [a]m I entitled to a Franklin hearing?" The questions posed by Pimentel relate to his underlying judgment of conviction from which he appealed in 2002, we affirmed in 2003, and is now final. The instant appeal is from the postjudgment order denying his petition under section 1170.95. Pimentel's questions in his supplemental letter brief are therefore outside the scope of the appeal before us and we do not address them further.
We have reviewed the record in accordance with our obligations under Wende and Anders, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
DISPOSITION
The postjudgment order is affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.