Opinion
F076583
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL VASQUEZ, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CM0397C)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
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Jose Manuel Vasquez (appellant) appeals from his resentencing following our prior remand. Specifically, appellant contends the trial court improperly imposed a stayed sentence enhancement under Penal Code section 667, subdivision (a), on his conviction for possession of a firearm by a convicted felon because his underlying conviction does not qualify as a serious felony. In supplemental briefing, appellant contends retroactive amendments to the felony-murder rule contained in Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), now section 1170.95, render his sentence improper. The People concede appellant's sentence enhancement should be stricken in this matter and that Senate Bill 1437 may retroactively apply to appellant, but argue the proper vehicle for resolving issues under section 1170.95 is the petition mandated in that statute. For the reasons set forth below, we agree with the People. We therefore strike appellant's sentence enhancement and order the abstract of judgment be amended accordingly. We reject appellant's request we review his felony-murder conviction. Appellant's proper remedy under section 1170.95 is a petition under that statute.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to appellant's original conviction are set forth in our nonpublished opinion (People v. Vasquez (Mar. 2, 2017, F070033)). As they are not contested in this appeal, we incorporate them by reference. In summary, appellant was involved with David Bonner, Jr. and Benjamin Martinez in a plan to steal a truck from one Eric Gomez. Gomez was shot and killed by Bonner during the execution of that plan. Appellant was ultimately convicted of several offenses, including felony murder (§ 187, subd. (a); count 1), based on a theory of aiding and abetting under special circumstances involving a failed carjacking attempt. Relevant to this appeal, appellant was charged with count 3 for being a felon in possession of a firearm (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)]). The factual basis for count 3 was appellant's admission that he had gone target shooting several days before the robbery, not any events that occurred during the robbery itself.
In the prior appeal, this court concluded the evidence did not support a conclusion that the felony-murder conviction satisfied the special circumstances requirements of section 190.2, subdivision (a)(17). This resulted in a remand for resentencing on count 1, the felony-murder conviction, with no changes ordered for any other convictions. With respect to count 3, appellant had previously been sentenced to a consecutive six-year term plus a stayed five-year enhancement based on a prior conviction.
Appellant was resentenced on October 24, 2017, receiving a new sentence of 25 years to life with a five-year prior conviction enhancement on count 1. His sentence on count 3 was a consecutive term of six years with a stayed five-year enhancement based on a prior conviction and imposed pursuant to section 667, subdivision (a). Appellant then timely appealed.
While this appeal was pending, Senate Bill 1437 was signed into law. Appellant requested, and was granted, the right to file a supplemental brief on the effects of that newly signed law.
DISCUSSION
The People concede appellant's sentence enhancement on count 3 is improper. They further admit the change in law brought about by Senate Bill 1437 is retroactive and potentially applicable to appellant. The only issue they contest is whether appellant's claim under the new law can be resolved through this appeal or whether it must be resolved through the petitioning process set forth in the statute.
The People's Concession on the Enhancement is Proper
Under section 667, subdivision (a), a person "convicted of a serious felony who previously has been convicted of a serious felony" shall receive a five-year sentence enhancement for each prior conviction. (§ 667, subd. (a)(1).) As noted, appellant was convicted in count 3 of being a felon in possession of a firearm. The People concede count 3 is not a "serious felony" under section 667, subdivision (a), and thus cannot support a sentence enhancement.
Section 667, subdivision (a)(4), defines a serious felony as one of the 42 offenses listed in section 1192.7, subdivision (c). As the People correctly note, possession of a firearm by a felon is not listed therein. We therefore accept the People's concession and strike the stayed enhancement on count 3.
Section 1170.95 Requires Appellant File a Petition for Review
On September 30, 2018, the Governor signed Senate Bill 1437, which, effective January 1, 2019, added section 1170.95 (Stats. 2018, ch. 1015, § 4). This new law states that "[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 three specific conditions are met. (§ 1170.95, subd. (a).) If the petition provides a prima facie showing of entitlement to relief, an order to show cause will issue (§ 1170.95, subd. (c)) and the sentencing court will hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts" (§ 1170.95, subd. (d)). This procedure can be shortened by stipulation. (§ 1170.95, subd. (d)(2).)
Appellant contends this new law is retroactive and because the facts of this case are undisputed, his felony-murder conviction is unauthorized and subject to challenge on direct appeal. The People agree the law is retroactive but argue the petition specifically required by the statute is the only proper mechanism by which to invoke the law. We agree with the People.
This issue was recently and extensively analyzed in People v. Martinez (2019) 31 Cal.App.5th 719. In that case, the court concluded the proper avenue for invoking section 1170.95 is the petition process, explaining: "Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal.
"The remainder of the procedure outlined in section 1170.95 underscores the legislative intent to require those who seek retroactive relief to proceed by way of that statutorily specified procedure. The statute requires a petitioner to submit a declaration stating he or she is eligible for relief based on the criteria in section 1170.95, subdivision (a). (§ 1170.95, subd. (b)(1)(A).) Where the prosecution does not stipulate to vacating the conviction and resentencing the petitioner, it has the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner, too, has the opportunity to present new or additional evidence on his or her behalf. (§ 1170.95, subd. (d)(3).) Providing the parties with the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95's resentencing process rather than avail themselves of Senate Bill 1437's ameliorative benefits on direct appeal." (People v. Martinez, supra, 31 Cal.App.5th at pp. 727-728.)
We, in line with several other courts that have viewed this issue, are persuaded by the analysis set forth in Martinez. (See, e.g., People v. Anthony (2019) 32 Cal.App.5th 1102, 1157-1158 [following Martinez]; In re R.G. (2019) 35 Cal.App.5th 141, 151 [interpreting Sen. Bill 1437 to apply to juveniles, & following Martinez & Anthony].) The specific statutory provisions set forth a petitioning process and constitute the Legislature's direct confirmation that such a process is the proper mechanism for resolving any issues arising under the statute. Accordingly, appellant's arguments in the current appeal are improperly raised.
DISPOSITION
We strike the stayed serious felony sentence enhancement under section 667, subdivision (a), as to count 3 and order the abstract of judgment be amended accordingly. We affirm the judgment in all other respects.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
SMITH, J.