Opinion
F078866
06-08-2021
THE PEOPLE, Plaintiff and Respondent, v. RONNIE JOSEPH ZUNIGA, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, Eric L. Christoffersen and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF211993B Gary L. Paden, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, Eric L. Christoffersen and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
INTRODUCTION
In 2010, a jury convicted defendant Ronnie Joseph Zuniga of three counts of attempted murder and one count of shooting at an occupied motor vehicle, and found true various enhancement allegations. Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to Penal Code section 1170.95, asserting he was entitled to resentencing under the new laws. (Undesignated statutory references are to the Penal Code.) The court denied defendant's petition, concluding he was categorically ineligible for relief because he was not convicted of murder. Defendant appeals the denial of his petition.
We affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, a jury convicted defendant of three counts of attempted murder (§§ 664, 187; counts 1-3) and one count of shooting at an occupied vehicle (§ 246; count 4). The jury also found true allegations that a principal personally and intentionally discharged a handgun during the attempted murders in violation of section 12022.53, subdivisions (c) and (e)(1).
Defendant petitioned the court for resentencing in 2019 using a preprinted form. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of first degree felony murder but could not now be convicted because he was not the actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; and he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. He also checked a box stating, “I request that this court appoint counsel for me during this re-sentencing process.”
A week after defendant filed his petition, the court denied it, concluding defendant “was convicted of Three (3) counts of Attempted Murder (in violation of Penal Code Section 664/187) and is unable to establish a prima facie basis of eligibility for relief.”
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the court's denial.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
Specifically, newly enacted section 1170.95 permits those “convicted of felony murder or murder under a natural and probable consequences theory [to] 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 ….” (Id., subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met:
“(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[;] [¶] [and] (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)(1)-(3).)
A trial court receiving 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).) If the petitioner has made such a showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must then hold a hearing “to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
2. Analysis
Defendant asserts the court erred in denying his section 1170.95 petition as to his three attempted murder convictions. He contends it is “absurd” he cannot seek relief pursuant to section 1170.95 because he was not found guilty of murder and argues such a conclusion violates equal protection. He asserts he “is similarly situated to a defendant who petitions for relief pursuant to … section 1170.95” in that they were both convicted of doing an act that could cause death. He argues his equal protection claim should be subject to a strict scrutiny analysis because it pertains to a loss of liberty. He further contends the court violated section 1170.95's mandate by failing to appoint him an attorney to assist him in the prosecution of his petition. He asserts the failure to appoint him counsel resulted in a violation of his Sixth Amendment right to counsel during a critical stage of the proceedings and his federal right to due process. He argues the error in failing to appoint him counsel is “unquantifiable and indeterminate” and, accordingly, should be viewed as structural error requiring per se reversal. The People respond defendant is excluded from relief under section 1170.95 for his attempted murder convictions, which have long been final, based on the statute's legislative history and plain language. Relying on People v. Lopez (2010) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175, and People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S258234, they assert individuals convicted of murder and attempted murder are not similarly situated for purposes of Senate Bill 1437 such that only permitting relief under section 1170.95 to those convicted of murder violates equal protection. Additionally, even if these individuals are similarly situated for purposes of Senate Bill 1437, rational basis scrutiny applies and there is a rational basis for not permitting relief to attempted murderers under section 1170.95. Finally, they assert the court was not required to appoint defendant counsel until it determined the petition was not frivolous, i.e., that defendant falls within the provisions of section 1170.95. Irrespective, they assert the denial of right to counsel at this stage was harmless and did not amount to structural error.
We reject defendant's contention he is entitled to relief under section 1170.95 from his attempted murder convictions and find any alleged error by the court in failing to appoint him counsel was harmless. We have previously noted that “[t]he plain language of section 1170.95, subdivision (a) limits relief to persons ‘convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court ….' No language in section 1170.95 references relief to persons convicted of attempted murder.” (People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review granted Mar. 11, 2020, S259948; see People v. Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983 [“section 1170.95 is limited to certain murder convictions and excludes all other convictions”].) Indeed, as we held in Medrano, the legislative history of Senate Bill 1437 also supports a conclusion the relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder. (Medrano, supra, at p. 1017.) And we have found no case reaching the opposite conclusion, that is, one not convicted of murder is eligible for resentencing under section 1170.95's statutory language.
We also cannot conclude section 1170.95's limited avenue for relief to those convicted of felony-murder or murder under a natural and probable consequences theory violates equal protection principles. In so holding, we reject defendant's assertion his equal protection claim is subject to a strict scrutiny analysis. Rather, we conclude a rational basis review applies here because a criminal defendant does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. (See People v. Wilkinson (2004) 33 Cal.4th 821, 838; People v. Munoz, supra, 39 Cal.App.5th at p. 762, review granted.)
We further conclude, even assuming, arguendo, defendants convicted of attempted murder under a natural and probable consequences theory could establish they are “similarly situated” to those convicted of murder under a natural and probable consequences theory for purposes of Senate Bill 1437, there is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions. As our sister courts have reasoned:
“There may well be sound policy reasons for the Legislature to adopt ameliorative provisions like those in Senate Bill 1437 for individuals charged with, or convicted of, attempted murder under the natural and probable consequences doctrine. But the Legislature's decision to limit sentencing reform at this time to offenders in cases of murder is certainly rational. First, the gap between a defendant's culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense is greater in cases where the nontarget offense is murder, than where the nontarget offense is attempted murder or, in the prosecutor's discretion, aggravated assault. The Legislature could have reasonably concluded reform in murder cases ‘was more crucial or imperative.' …
“Second, the process created in section 1170.95 for those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate that conviction and to be resentenced is not cost free. The staff of the Senate Appropriations Committee estimated, if 10 percent of the inmates eligible for relief under Senate Bill 1437 petitioned the courts for resentencing, additional court workload costs would approximate $7.6 million. The committee's report expressed concern that this increase in workload ‘could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.' (Sen. Com. Appropriations Report, p. 3.) Additional expenditures would also be required to transport petitioners in custody to and from court hearings. (Ibid.)
“In a world of limited resources, it is reasonable for the Legislature to limit the scope of reform measures to maintain the state's financial integrity.” (People v. Lopez, supra, 38 Cal.App.5th at pp. 1111-1112, fn. omitted, review granted; see People v. Munoz, supra, 39 Cal.App.5th at pp. 763-765, review granted; accord, People v. Medrano, supra, 42 Cal.App.5th at p. 1017, review granted; People v. Larios, supra, 42 Cal.App.5th at p. 970, review granted.)
Thus, in light of section 1170.95's unambiguous language, defendant is categorically excluded from seeking relief through its petitioning procedure for his attempted murder convictions, which have long been final. Because there is a rational basis to exclude defendants convicted of attempted murder from the ambit of section 1170.95, we find no equal protection violation.
We also conclude any alleged error by the trial court in failing to appoint defendant counsel was harmless. In so holding, we note our sister courts have adopted conflicting interpretations of whether section 1170.95 requires a trial court to appoint a petitioner counsel immediately upon the filing of a petition for resentencing under section 1170.95. (Compare People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020, S260598 (Lewis) [court does not err by denying petition for resentencing without appointing petitioner counsel because duty to appoint counsel does not arise unless and until the court makes threshold determination petitioner “‘falls within the provisions'” of statute] and People v. Verdugo (2020) 44 Cal.App.5th 320, 332-333, review granted Mar. 18, 2020, S260493 [petitioner was not entitled to appointment of counsel before initial prima facie review of eligibility for relief] with People v. Cooper (2020) 54 Cal.App.5th 106, 112, review granted Nov. 10, 2020, S264684 [“when a petitioner files a facially sufficient petition requesting counsel, … the trial court must appoint counsel and give the parties an opportunity to submit briefing before denying the petition”]; People v. Daniel (2020) 57 Cal.App.5th 666, 673-674, review granted Feb. 24, 2021, S266336 [reiterating conclusion in Cooper that trial court must appoint counsel for petitioner who files facially sufficient petition before court denies petition for failure to make prima facie showing of entitlement to relief].)
But here, we need not decide whether the trial court should have appointed defendant counsel after he filed his petition because we cannot conclude defendant was prejudiced by the lack of counsel. In so concluding, we do not agree with defendant's contention that any alleged error by the trial court in failing to appoint counsel was structural error. Rather, any alleged error by the trial court in failing to appoint defendant counsel after he filed a petition and prior to the issuance of an order to show cause is subject to review for harmless error. (See People v. Cooper, supra, 54 Cal.App.5th at p. 123, review granted [rejecting argument failure to appoint counsel after petition filing requires per se automatic reversal and instead concluding harmless error analysis applies]; People v. Daniel, supra, 57 Cal.App.5th at pp. 674-675, review granted [holding violation of statutory right to counsel upon filing a facially sufficient petition is not structural error, but instead “susceptible to review for prejudice”]; accord, People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.)
Defendant's reliance upon People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse) to argue the failure to appoint counsel was structural error requiring per se reversal is misplaced. In Rouse, an incarcerated defendant filed a petition for resentencing pursuant to section 1170.18 after Proposition 47 reclassified theft of property valued at less than $950 as misdemeanor shoplifting. (Rouse, at pp. 294-295.) At the hearing on his petition, the defendant was not present or represented by counsel. (Id. at p. 296.) The court found the defendant's petition to be “well taken.” (Ibid.) It permitted the People to amend the defendant's commercial burglary charge, granted the defendant's petition, vacated the original sentence, and resentenced the defendant. (Ibid.) The Second District Court of Appeal, Division Eight, concluded the defendant was entitled to the assistance of counsel at the resentencing hearing on his petition under section 1170.18, subdivision (a). (Rouse, at p. 301.) The court therefore reversed and remanded for a new resentencing hearing on that basis. (Ibid.)
The Rouse court did not consider whether a petitioner's right to counsel attaches at some point before a resentencing hearing is held, as is at issue here. And we have found no cases, nor does defendant point us to any, that hold a court's failure to appoint a petitioner counsel before a hearing under section 1170.95 amounts to structural error. Thus, Rouse does not assist defendant.
Here, the trial court's error was “harmless under any standard of review.” (People v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8, 2020, S262481, citing Chapman v. California (1967) 386 U.S. 18, 24 [constitutional error] and People v. Watson (1956) 46 Cal.2d 818, 836 [state law error]; see also People v. Daniel, supra, 57 Cal.App.5th at p. 678, review granted [applying harmless error standard under Watson]; People v. Law, supra, 48 Cal.App.5th at p. 826, review granted [applying harmless beyond a reasonable doubt standard under Chapman].) As discussed, defendant is categorically ineligible for relief pursuant to section 1170.95. Thus, even if counsel had been appointed below, the result would be no different.
DISPOSITION
The court's order denying defendant's section 1170.95 petition for resentencing is affirmed.
Before Levy, Acting P.J., Poochigian, J., and Peña, J.