Opinion
B307148
07-19-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GONZALEZ, SR., Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Los Angeles County No. PA056995, Hayden A. Zacky, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General for Plaintiff and Respondent.
FEUER, J.
Daniel Gonzalez, Sr., appeals from the postjudgment order summarily denying his petition for resentencing under Penal Code section 1170.95 as to his prior convictions of attempted willful, deliberate, and premeditated murder. Gonzalez contends the superior court erred in summarily denying his petition and not appointing counsel because section 1170.95 applies to convictions of attempted murder. He also argues the court's denial of his petition violated his right to equal protection under the federal and California Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), his right to due process, and his right to counsel. We affirm.
Further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010 a jury convicted Gonzalez of two counts of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664; counts 2 & 4) and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 1 & 3) arising from a gang-related shooting of two men. The jury also found true multiple firearm and gang enhancement allegations. The trial court sentenced Gonzalez on count 2 to a life term, with an additional 25 years to life for the firearm enhancement, and on count 4 to a consecutive life term, plus an additional 20 years for the firearm enhancement. The court stayed the sentences on the remaining counts and enhancements. (People v. Blanco (Aug. 15, 2012, B227650) [nonpub. opn.].)
On June 29, 2020 Gonzalez, representing himself, filed a form petition for resentencing seeking to vacate his attempted murder conviction and be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. Gonzalez requested the court appoint him counsel. On July 9 the trial court summarily denied Gonzalez's petition on the basis Gonzalez was ineligible for resentencing as a matter of law because he was not convicted of murder.
Gonzalez timely appealed.
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder through the amendment of sections 188 and 189. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) Under section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory may petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see Gentile, at p. 847.)
If the section 1170.95 petition contains all the required information, section 1170.95, subdivision (c), prescribes a procedure for the court to determine whether to issue an order to show cause and hold an evidentiary hearing to consider if the murder conviction should be vacated and the petitioner resentenced on any remaining counts. As we explained in People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted March 18, 2020, S260493, section 1170.95, subdivision (c), provides for the court's review to proceed in two steps: ‘“one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95-that is, that the petitioner may be eligible for relief-and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief.” (Accord, People v. DeHuff (2021) 63 Cal.App.5th 428, 436-437; People v. Rodriguez (2020) 58 Cal.App.5th 227, 237, review granted Mar. 10, 2021, S266652; People v. Perez (2020) 54 Cal.App.5th 896, 903, review granted Dec. 9, 2020, S265254; but see People v. Cooper (2020) 54 Cal.App.5th 106, 123 , review granted Nov. 10, 2020, S264684 [once the trial court determines the petition contains the required information, the court performs a single prima facie review, and if the defendant makes a prima facie showing of entitlement to relief, the court issues an order to show cause].)
The Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598, granted review on the following questions: “(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)[?]”
In determining whether the petitioner has made a prima facie showing he or she is entitled to relief under section 1170.95, subdivision (c), “[t]he trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law-for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing.... However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion....” (People v. Drayton (2020) 47 Cal.App.5th 965, 980; accord, People v. Perez, supra, 54 Cal.App.5th at pp. 903-904, review granted.)
B. The Trial Court Did Not Err in Denying Gonzalez's Petition for Resentencing
Gonzalez contends that the Legislature intended Senate Bill 1437 and its resentencing provision in section 1170.95 to apply to convictions of attempted murder. However, we concluded in People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105 (Lopez), review granted November 13, 2019, S258175, that Senate Bill 1437 does not provide relief for defendants convicted of attempted murder. (Accord, People v. Love (2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 2020, S265445.) Other courts have disagreed with our conclusion in Lopez that Senate Bill 1437 did not eliminate the natural and probable consequences doctrine as a basis for accomplice liability for attempted murder. (See, e.g., People v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001, 1012-1016, review granted March 11, 2020, S259948.) However, in light of the plain language of section 1170.95, by its terms applying to “[a] person convicted of felony murder or murder under a natural and probable consequences theory” (§ 1170.95, subd. (a)), the appellate courts have consistently held that section 1170.95 does not provide relief to a petitioner seeking relief from a final conviction of attempted murder. (See, e.g., People v. Harris (2021) 60 Cal.App.5th 557, 566, review granted Apr. 21, 2021, S267529 (Harris) [“We join the other appellate courts that have concluded that relief under section 1170.95 is not available to those convicted of attempted murder.”]; Love, at p. 292 [“Thus, even if Senate Bill 1437 reached attempted murder convictions on a prospective basis, it does not provide for retroactive relief for such convictions whether final or not.”]; Larios, at p. 969 [“No language in section 1170.95 references relief to persons convicted of attempted murder.”].)
Gonzalez contends in the alternative that any exclusion of attempted murder from the relief provided by section 1170.95 would violate equal protection principles. “The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.] ‘“The 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. Morales (2016) 63 Cal.4th 399, 408; accord, Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; Lopez, supra, 38 Cal.App.5th at p. 1111, review granted.) We rejected an equal protection challenge to Senate Bill 1437 with respect to attempted murder in Lopez, at pages 1109 to 1110, concluding persons convicted of murder and attempted murder are not similarly situated for purposes of Senate Bill 1437 because they are charged with separate crimes with different penal consequences. We also found there was a rational basis for excluding offenders in attempted murder cases from Senate Bill 1437, including the need to address the greater gap in culpability inherent in a murder conviction based on aiding and abetting liability. (Id. at pp. 1111-1112; accord, Harris, supra, 60 Cal.App.5th at p. 570, review granted [“Assuming for the sake of argument that all these offenders are similarly situated for purposes of section 1170.95, construing section 1170.95 to apply only to murder convictions does not violate equal protection, because we can conceive of at least one rational reason for the Legislature to limit relief under section 1170.95 to those convicted of murder.”]; Love, supra, 55 Cal.App.5th at p. 288, review granted [“Even if we assume for the sake of argument that persons convicted of murder and persons convicted of attempted murder are similarly situated [citation], construing Senate Bill 1437 to reach murder but not attempted murder does not violate equal protection.”].) Gonzalez has presented no persuasive reason for us to depart from our decision in Lopez.
Because Gonzalez failed to make the initial prima facie showing for relief under section 1170.95, subdivision (c), he was not entitled to appointed counsel or a hearing. (People v. Harris, supra, 60 Cal.App.5th at p. 569, review granted [“petitioner is entitled to appointment of counsel... only if the superior court does not determine he or she is ineligible for relief as a matter of law at this first subdivision (c) prima facie review”]; People v. Tarkington (2020) 49 Cal.App.5th 892, 901-902, review granted Aug. 12, 2020, S263219 [because the court summarily denied the petition at the first prima facie review stage, “the appointment of counsel was not statutorily required by section 1170.95”]; People v. Verdugo, supra, 44 Cal.App.5th at pp. 332-333, review granted [“If, as here, the court concludes the petitioner has failed to make the initial prima facie showing required by subdivision (c), counsel need not be appointed.”]; People v. Lewis, supra, 43 Cal.App.5th at p. 1140, review granted [“Given the overall structure of the statute, we construe the requirement to appoint counsel as arising in accordance with the sequence of actions described in section 1170.95 subdivision (c); that is, after the court determines that the petitioner has made a prima facie showing that petitioner ‘falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made ‘a prima facie showing that he or she is entitled to relief.'”]; cf. People v. Cooper, supra, 54 Cal.App.5th at p. 123, review granted [“a petitioner is entitled to counsel upon the filing of a facially sufficient petition for relief that requests counsel be appointed”].)
Gonzalez's contention the superior court violated his constitutional right to counsel likewise fails because “‘the retroactive relief... afforded by Senate Bill 1437... constituted an act of lenity that does not implicate defendants' Sixth Amendment rights.'” (Lopez, supra, 38 Cal.App.5th at pp. 1114 1115, review granted; accord, People v. Daniel (2020) 57 Cal.App.5th 666, 676, review granted Feb. 24, 2021, S266336 [“petitioner's right to counsel under section 1170.95, [subdivision (c), ] is not protected by the federal Constitution”].) For the same reason, Gonzalez's argument the court's failure to appoint counsel violated his right to due process lacks merit.
DISPOSITION
The order denying Gonzalez's petition for resentencing under section 1170.95 is affirmed.
We concur: PERLUSS, P. J., SEGAL, J.