Opinion
G057529
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN BRIZENO RODRIGUEZ, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF1288) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Adrian Brizeno Rodriguez was at a taqueria with a friend when two belligerent men confronted them. Defendant and his friend were gang members, though not in the same gang, and the two belligerent men were members of a different gang. The four took it outside where a fight ensued. Defendant's companion pulled out a gun and shot defendant's opponent dead. Although defendant was not the shooter, he was convicted of second degree murder on the theory that murder was a natural and probable consequence of the fight. He was also convicted of street terrorism. In a prior appeal, we reversed on both counts. As to the murder, we found the court had failed to properly instruct the jury on self-defense. As to street terrorism, we found the evidence was insufficient because defendant and his companion were not members of the same gang.
On remand, the People amended the information to add a charge of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) Pursuant to a plea deal, defendant pleaded guilty to the voluntary manslaughter count, and the murder count was dismissed. The court sentenced defendant to the upper term of 11 years for voluntary manslaughter (§ 192, subd. (a)), plus one year for a gun enhancement (§ 12022, subd. (a)(1), plus one year for a prison prior (§ 667.5, subd. (b)), for a total term of 13 years in state prison.
All statutory references are to the Penal Code.
Effective January 1, 2019, the Legislature enacted Senate Bill 1437 (2017-2018 Reg. Session) (SB 1437) (Stats. 2018, ch. 1015), which amended sections 188 and 189 to effectively eliminate the doctrine of natural and probable consequences as applied to murder. (Stats. 2018, ch. 1015, §§ 1, subd. (f) & 2.) SB 1437 also created a retroactive resentencing provision, section 1170.95, for defendants convicted of either felony murder or murder under a natural and probable consequences theory. (Stats. 2018, ch. 1015, § 4.) That statute provides a mechanism for vacating a murder conviction where, under the current law, the defendant could not have been convicted of murder.
Here, defendant filed a petition under section 1170.95, which the court denied on the ground that defendant was not convicted of murder, since he had pleaded guilty to voluntary manslaughter. Defendant appealed, contending that his plea in lieu of murder qualifies. Under the plain language of the statute, the trial court got it right. We affirm.
DISCUSSION
Because the underlying facts are not relevant to the issue on appeal, we omit a statement of facts. Instead, we refer the reader to our prior unpublished opinion People v. Rodriguez (Sept. 8, 2015, G049977).
Interpretation of Section 1170 .95
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Prior to the passage of SB 1437, the malice element of murder could be satisfied by imputation: If someone else committed murder, but that murder was a foreseeable consequence of a different crime that the defendant committed, then the defendant could be convicted of murder as an aider and abetter under the doctrine of natural and probable consequences. (People v. Larios (2019) 42 Cal.App.5th 956, 964-965.) SB 1437 changed that. It amended section 188 to add the following provision: "Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Since malice can no longer be proven by imputation, and malice is a necessary element of murder, this amendment eliminated the doctrine of natural and probable consequences as applied to murder.
The statute makes an exception for certain types of felony murder, which is not relevant here. (See § 189, subd. (e).)
In addition to changing the substantive law, SB 1437 introduced a new statute, section 1170.95, which provides a mechanism for retroactive resentencing of defendants convicted of murder under a natural and probable consequences theory. The issue in this appeal turns on the interpretation of section 1170.95. That section provides as follows:
"(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."
Defendant contends he qualifies for relief under this statute because he satisfies each of subdivisions (a)(1) through (a)(3), and in particular subdivision (a)(2), in that he "accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder." (§ 1170.95, subd. (a)(2).) However, we never reach subdivisions (a)(1) through (a)(3) until the predicate condition is satisfied: "A person convicted of . . . murder . . . under a natural and probable consequences theory may file a petition . . . ." (Id., subd. (a), italics added.) Defendant was not convicted of murder, and thus by its plain language, he may not file a petition under section 1170.95. (See People v. Johnson (2002) 28 Cal.4th 240, 244 ["If the plain language of the statute is clear and unambiguous, [the courts'] inquiry ends, and [one] need not embark on judicial construction"].) Moreover, the relief to be granted a petitioner under section 1170.95 is to vacate his "murder conviction." (§ 1170.95, subds. (a), (d). Defendant does not have a murder conviction to vacate. This result is consistent with the substantive changes to the law made by SB 1437. It redefined malice. Malice, however, is not an element of voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 462-463.) SB 1437 simply does not apply to voluntary manslaughter.
Defendant's contention otherwise rests largely on the legislative history of SB 1437. One of the expressed purposes of the Legislature was to "more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) It cited the "bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability." (Stats. 2018, ch. 1015, § 1, subd. (d).) However, it went on to conclude, "It is necessary 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), italics added.) Moreover, the People note that earlier versions of the bill did not contain the restriction that a petitioner had to be convicted of murder, suggesting that the narrowing was intentional, and that the cost estimates the Senate relied on were calculated based on inmates serving sentences for murder, not other crimes.
We need not resolve the parties' competing arguments over legislative history, as the text of the statute is unambiguous. (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1264 ["when statutory language is clear and unambiguous, resort to the legislative history is unwarranted"].) Because only those convicted of murder may file a petition, the "plea" referenced in subdivision (a)(2) necessarily means a plea to murder. As the People point out, defendants often plead to murder "to avoid increased penalties from special circumstances or enhancements." Thus, the plain language of the statute produces a perfectly rational interpretation. Our task is complete.
Equal Protection
Next, defendant contends that if section 1170.95 is interpreted to not include those who, like himself, pleaded to voluntary manslaughter in lieu of a murder trial, then it violates his right to equal protection under the California and United States constitutions. We disagree.
"The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, '"[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."' [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. Brown (2012) 54 Cal.4th 314, 328, italics omitted.)
If two similarly situated groups are treated differently, the next question is whether the disparity in treatment is warranted. "The extent of justification required to survive equal protection scrutiny in a specific context depends on the nature or effect of the classification at issue. Unequal treatment based on a suspect classification such as race is subject to '"the most exacting scrutiny."'" (People v. Chatman (2018) 4 Cal.5th 277, 288.) "So is treatment affecting a fundamental right." (Ibid.)
"Yet where the law challenged neither draws a suspect classification nor burdens fundamental rights, the question we ask is different. We find a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose. [Citation.] This core feature of equal protection sets a high bar before a law is deemed to lack even the minimal rationality necessary for it to survive constitutional scrutiny. Coupled with a rebuttable presumption that legislation is constitutional, this high bar helps ensure that democratically enacted laws are not invalidated merely based on a court's cursory conclusion that a statute's tradeoffs seem unwise or unfair." (People v. Chatman, supra, 4 Cal.5th at pp. 288-289.)
Our colleagues in the Second Appellate District recently analyzed essentially the same argument as defendant makes here in People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz), where the defendant argued that omitting those convicted of attempted murder from section 1170.95 violated his equal protection right. The Munoz court concluded it did not. We find the Munoz court's extensive analysis of the issue both persuasive and directly on point here.
Beginning with step one of an equal protection analysis, the Munoz court found that those convicted of murder and those convicted of attempted murder are not similarly situated. "Attempted murder and murder are different offenses. [Citations.] Significantly, attempted murder is punished less harshly than murder." (Munoz, supra, 39 Cal.App.5th at p. 761.) The same is plainly true of voluntary manslaughter. A defendant convicted of second degree murder must serve a minimum sentence of 15 years to life. (§ 190, subd. (a).) The punishment for voluntary manslaughter, on the other hand, is a prison term of 3, 6, or 11 years. (§ 193, subd. (a).)
"These different penal consequences necessarily mean, for purposes of sentencing reform, an individual charged with, or convicted of, murder under the natural and probable consequences doctrine is not similarly situated to an individual confronting a charge of" voluntary manslaughter. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1110.) "The Legislature is permitted to treat these two groups of criminals differently." (Ibid.)
Moreover, assuming defendant is similarly situated to someone convicted of second degree murder, defendant cannot satisfy the second element of an equal protection violation either because the disparate treatment survives scrutiny. Again, the Munoz court: "Rational basis review applies here. A criminal defendant does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. [Citations.] For that reason, courts have repeatedly held that the rational basis test applies to equal protection claims based on sentencing disparities." (Munoz, supra, 39 Cal.App.5th at p. 762.)
The Munoz court noted that while SB 1437 was primarily focused on ensuring a defendant's sentence was commensurate with culpability, it also aimed to "'assist[] in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.'" (Munoz, supra, 39 Cal.App.5th at p. 763.) Reducing prison overcrowding is plainly a legitimate aim of the Legislature. And to that end, the difference in sentences between second-degree murder and voluntary manslaughter are plainly relevant. Far greater gains will be realized in addressing defendants convicted of murder than those convicted of voluntary manslaughter, particularly since the potential target offenses underlying voluntary manslaughter to which a petitioner would be resentenced may carry a sentence only moderately shorter than voluntary manslaughter. At the same time, the petitioning mechanism under section 1170.95 entails significant costs to the state, which were recognized in some of the legislative history of SB 1437. (Munoz, at pp. 763-764.) "Thus, 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, 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 resulting—in most cases—in insignificant decreases in the sentences served for attempted murder convictions. The Legislature could reasonably conclude its aims could be achieved by limiting relief to persons convicted of murder, but not attempted murder." (Id. at p. 765.) The same reasoning applies to voluntary manslaughter. Accordingly, denying defendant's petition under section 1170.95 did not violate his equal protection rights.
DISPOSITION
The postjudment order denying defendant's petition under section 1170.95 is affirmed.
The People's motion for judicial notice of various pieces of legislative history concerning SB 1437 is granted. --------
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.