Opinion
A158264
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. RUBEN CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Superior. Ct. No. 177780A)
After a trial in which the jury deadlocked on a murder charge, Ruben Cortez pled no contest to voluntary manslaughter to avoid retrial and was sentenced to 11 years in state prison. Shortly after he began serving his sentence, the Legislature enacted Senate Bill 1437 (Stats. 2018, ch. 1015) (SB 1437), which amended the standards for individual culpability under the felony murder and natural and probable consequences theories of murder and provided a procedure (Pen. Code, § 1170.95, subd. (a)) for resentencing persons convicted under these doctrines. Cortez sought resentencing pursuant to section 1170.95, subdivision (a). The trial court summarily denied relief on the ground that he was ineligible because he was not convicted of murder. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
In 2014, Cortez was involved in a drug deal and armed robbery in which one of the victims was shot to death. Cortez was tried for robbery (§ 211) and murder (§ 187). In 2018, after the jury deadlocked on the murder charge, Cortez pled no contest to voluntary manslaughter in lieu of retrial. He was sentenced to 11 years in state prison. In 2019, Cortez petitioned for resentencing under section 1170.95, subdivision (a). The trial court found no prima facie case for relief and denied the petition. Cortez appeals.
DISCUSSION
Section 1170.95 became effective on January 1, 2019, as part of SB 1437, which 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.' " (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) SB 1437 amended section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. (Ibid.)
SB 1437 also added section 1170.95, subdivision (a) which provides, "A person convicted of felony murder or murder under the 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, subd. (a)(1)-(3).)
Cortez contends that even though he was convicted of manslaughter, not murder, he should be eligible for the resentencing under section 1170.95, subdivision (a). He says, "both the text of 1170.95 and the legislative intent of its enactment support the conclusion that an individual who pleads to manslaughter charges in lieu of facing charges of murder at trial is at least potentially eligible for relief under SB 1437."
Cortez raises an issue of statutory interpretation. As a question of law, we review his claim under the de novo standard of review. (People v. LaDuke (2018) 30 Cal.App.5th 95, 100.) "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)
Several courts have held that the directive in Section 1170.95, subdivision (a) that " '[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition' " means that only those convicted of first- or second-degree murder may seek relief under its provisions, and it does not apply to convictions for attempted murder or voluntary manslaughter. (See People v. Turner (2020) 45 Cal.App.5th 428, 434, 435-436, review den. May 13, 2020 (Turner); People v. Cervantes (2020) 44 Cal.App.5th 884, 886-887 (Cervantes), review den. Apr. 15, 2020 [rejecting petition filed following plea to voluntary manslaughter and concluding "[t]he plain language of the statute is explicit; its scope is limited to murder convictions"]; People v. Flores (2020) 44 Cal.App.5th 985, 992-994 (Flores), review den. Apr. 29, 2020 ["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 . . . ."]; People v. Larios (2019) 42 Cal.App.5th 956, 970 (Larios), review granted Feb. 26, 2020, S259983 ["[T]he relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder."]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1017 (Medrano), review granted Mar. 11, 2020, S259948 [same]; People v. Munoz (2019) 39 Cal.App.5th 738, 751, 753-756, review granted Nov. 26, 2019, S258234 [section 1170.95 not applicable to attempted murder]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1107 (Lopez), review granted Nov. 13, 2019, S258175 [same].) While the potential applicability of SB 1437 to attempted murder will be reviewed by the Supreme Court, review was denied in Cervantes and Flores, and Cortez has cited no case, nor have we found any which has extended section 1170.95, subdivision (a) to provide relief for a manslaughter conviction.
The same argument Cortez makes was most recently addressed in Turner, supra, 45 Cal.App.5th 428, which is particularly instructive. Turner was charged with murder presumably under a felony murder or natural and probable consequences theory and agreed to plead guilty to voluntary manslaughter in lieu of trial. (Id. at pp. 434-435.) On appeal taken from the denial of Turner's petition for resentencing, the court rejected the claim that SB 1437 "extends to individuals who risked a murder conviction under a theory of felony murder or natural and probable consequences murder but agreed to plead guilty to manslaughter instead." (Ibid.)
The Turner court first observed that the language of section 1170.95, subdivision (a) reflects a legislative intent that its application be limited to offenders convicted of murder under the felony murder or natural-and-probable-consequences doctrines: "Subdivision (a) of section 1170.95 allows '[a] person convicted of felony murder or murder under a natural and probable consequences theory' to file a petition 'to have [his or her] murder conviction vacated and to be resentenced on any remaining counts.' " (Turner, supra, 45 Cal.App.5th at p. 435, italics in original.) The Turner court also pointed out that section 1170.95, subdivision (d) defines the available relief as the vacating of a "murder conviction." (Ibid., italics in original.) "[T]he Legislature [also] declared in uncodified portions of Senate Bill 1437 that it sought 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder,' to limit circumstances in which 'murder liability' may be imposed. (Stats. 2018, ch. 1015, § 1, subd. (f)." (Ibid., italics in original.)
Based on the clear statutory language, Turner, Cervantes, and other courts have concluded that section 1170.95, subdivision (a) unambiguously applies to persons convicted of murder but does not offer the possibility of relief to persons convicted of manslaughter. (Turner, supra, 45 Cal.App.5th at pp. 435-436.) These authorities are persuasive and we likewise conclude that Cortez, who was convicted of manslaughter, is not eligible for relief under section 1170.95, subdivision (a).
Cortez relies on section 1170.95, subdivision (a)(2), which refers to a showing by the petitioner that "the petitioner was convicted of first degree murder following a trial or accepted a plea offer in lieu of trial at which the petitioner could be convicted for first degree or second degree murder." (Italics added.) He argues the reference to acceptance of a plea offer in lieu of murder should permit those charged with murder, but convicted by plea of another crime, to invoke section 1170.95, subdivision (a). This argument has been rejected by several of the cases we have cited. (See, e.g., Turner, supra, 45 Cal.App.5th at p. 436.) We agree with the weight of authority that this argument improperly "ignores the introductory language in section 1170.95, subdivision (a) that limits petitions to persons 'convicted of . . . murder.' " (Ibid., italics in original; see also Flores, supra, 44 Cal.App.5th at p. 995 [rejecting argument because it places "outsized importance on a single clause to the exclusion of the provision's other language"].)
Cortez argues that such a narrow interpretation of SB 1437 as we advance here is "probably incorrect, as evidenced by the fact that . . . some courts have already concluded that section 1170.95 may apply to attempted murder, despite the lack of an explicit reference to attempted murder in the statute." He says Larios, supra, 42 Cal.App.5th 956 and Medrano, supra, 42 Cal.App.5th 1001, both on review before our Supreme Court, "have concluded attempted murder falls within the scope of section 1170.95." Whether the cases are correct or not, Cortez overstates their holdings on resentencing eligibility under section 1170.95, subdivision (a). Even though these cases concluded that SB 1437's abrogation of the natural and probable consequences liability applies to attempted murder, both concluded that offenders previously convicted of attempted murder are ineligible for section 1170.95, subdivision (a) relief. (Larios, at pp. 968-970 ["[T]here is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions."]; Medrano, at p. 1016; [same].) Neither of these cases undermines our conclusion that resentencing eligibility is limited to murder convictions and excludes all other crimes.
DISPOSITION
The order denying the petition for resentencing is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Jackson, J.