Opinion
B297848
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. PAUL DEVLIN, Defendant and Appellant.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Charles S. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA039719) APPEAL from a judgment of the Superior Court of Los Angeles County, Steven Vansicklen, Judge. Affirmed. Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Paul Devlin filed a petition in the superior court for resentencing under Penal Code section 1170.95 and requested the appointment of counsel. The court found that he failed to allege facts necessary for relief under that statute and was not eligible for relief as a matter of law because he had not been convicted of murder. The court therefore denied the petition without appointing counsel or holding an evidentiary hearing. Devlin contends that section 1170.95 should apply to convictions for attempted murder, and that holding otherwise violates due process and his right to be free from cruel and unusual punishment.
Undesignated statutory references will be to the Penal Code.
Respondent's motion to take judicial notice of our prior opinion in Devlin's direct appeal in this matter is granted.
BACKGROUND
In 2001, a jury convicted Devlin of attempted murder, residential robbery, criminal threats, and unlawfully driving or taking a vehicle, and the trial court found he had committed two prior serious or violent felonies. He was sentenced to 50 years to life in prison.
On February 13, 2019, Devlin filed petition for resentencing pursuant to section 1170.95, which offers resentencing to those convicted of murder under specified theories. The trial court summarily denied the petition without appointing counsel, finding Devlin was ineligible for relief because he had not been convicted of murder.
DISCUSSION
Devlin contends section 1170.95 should apply to convictions for attempted murder. Every court that has considered this issue has rejected it. (See People v. Lopez (2019) 38 Cal.App.5th 1087, 1105, review granted Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019, S258234; People v. Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001, 1017-1018, review granted Mar. 11, 2020, S259948.) We agree with these decisions on this point and therefore reject the argument.
Devlin further contends that the exclusion of attempted murder from eligibility for relief under section 1170.95 violates due process and the state and federal proscriptions against cruel and unusual punishments. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17.) This is so, he argues, because a punishment scheme that treats similarly situated individuals differently based on arbitrary or capricious factors violates due process and constitutes cruel and unusual punishment. (Devlin raises no Equal Protection concern.) The argument is without merit.
A statutory scheme that might in some circumstances levy greater punishment on a lesser offense, such as attempted murder, than on a greater offense, such as murder, is not necessarily arbitrary or irrational. " 'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends" ' [citations], or 'because it may be "to some extent both underinclusive and overinclusive." ' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887.) "Under the laws then in effect, defendant received a valid indeterminate sentence. There was nothing unusual about his sentence, as it was not one 'that in the ordinary course of events is not inflicted.' " (People v. Smith (2015) 234 Cal.App.4th 1460, 1468 [affirming denial of a petition for resentencing under Proposition 36].) The Legislature's passage of a law making a procedure for resentencing available to other defendants that is not available to Devlin "does not retroactively convert defendant's otherwise lawful sentence into a constitutionally 'unusual' one." (Ibid.)
Devlin contends the court erred by denying him counsel and a hearing on his petition. The right to counsel under section 1170.95, however, does not attach until the petitioner makes a prima facie showing of eligibility under the statute (People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598; cf. People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 2020, S260493). Devlin failed to demonstrate eligibility under the statute.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------