Opinion
B308432
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ROBLES, JR., Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA390804, James R. Dabney. Affirmed.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
LAVIN, Acting P.J.
INTRODUCTION
Petitioner Armando Robles, Jr. (Robles) was convicted of two counts of attempted murder and one count of shooting at an occupied vehicle. After Senate Bill No. 1437 (S.B. 1437) was enacted (Stats. 2018, ch. 1015), Robles filed a petition for resentencing of his attempted murder convictions under Penal Code section 1170.95. The trial court denied Robles's petition, finding him ineligible for relief because section 1170.95 doesn't apply to attempted murder. Robles appeals, arguing the court erred in denying his petition without first appointing him counsel or allowing the parties to file briefs. We affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
A jury convicted Robles and a codefendant of two counts each of willful, deliberate, and premeditated attempted murder (§§ 664/187, subd. (a)) and one count each of shooting at an occupied vehicle (§ 246). The jury also found true that Robles and the codefendant committed the crimes for the benefit of a street gang and, as to Robles, that a principal personally used a firearm. The court sentenced Robles to a total term of 63 years to life in prison.
In June 2020, Robles filed a petition for resentencing under section 1170.95. Among other things, Robles alleged that he was convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine and that he couldn't now be convicted of first or second degree murder due to recent changes to sections 188 and 189 following the enactment of S.B. 1437. Robles did not state in his petition that he was convicted of attempted murder. Robles asked the court to appoint counsel to represent him.
The court denied the petition without appointing counsel to represent Robles or requesting briefing from Robles or the People. The court found Robles was ineligible for relief because he was convicted of attempted murder, which doesn't qualify for resentencing under section 1170.95.
Robles appeals.
Discussion
In his opening brief, Robles concedes he was convicted of two counts of attempted murder, not first or second degree murder. He contends the court erred in denying his petition for resentencing without first appointing counsel to represent him or allowing the parties to file briefs addressing his eligibility for resentencing under section 1170.95. As we explain, any error in denying Robles's petition before appointing counsel or receiving briefing from the parties was harmless because Robles concedes he was convicted of attempted murder, a crime that does not qualify for resentencing under section 1170.95.
1. S.B. 1437
S.B. 1437, which took effect on January 1, 2019, changed the law of murder to ensure a “person's culpability for murder [is] premised upon that person's own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
First, S.B. 1437 limited accomplice liability for murder. Under prior California law, every accomplice to an enumerated felony could be convicted of first degree murder if a death occurred during the commission of that felony-regardless of whether the accused killed or intended to kill. (See People v. Dillon (1983) 34 Cal.3d 441, 462-472.) Similarly, “a defendant who aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted not only of the target crime but also of the resulting murder”-regardless of whether he acted with malice aforethought. (In re R.G. (2019) 35 Cal.App.5th 141, 144.)
Now, however, a person may be convicted of murder only if: (1) he was the actual killer; or (2) with the intent to kill, he aided and abetted the actual killer's commission of murder; or (3) he acted as a “major participant” in a felony listed in section 189 and acted with “reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3; § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)
Second, S.B. 1437 abolished second degree felony murder. (Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).) Thus, the felony murder doctrine now applies only to those felonies listed in section 189, subdivision (a), and to accomplices who meet the requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively, S.B. 1437 gave people who had been convicted of murder under one of the now-invalid theories the opportunity to petition for resentencing under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.) In relevant part, section 1170.95 provides: “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 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).)
Any error in denying Robles's petition before appointing counsel or receiving briefing was harmless because he is ineligible for relief under section 1170.95 as a matter of law.
The point at which a court must appoint counsel to represent a defendant petitioning for relief under section 1170.95 is an issue currently under review by the California Supreme Court. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598.) Pending the Supreme Court's resolution of that issue, we need not decide whether the court erred when it summarily denied Robles's petition. That is, even if we were to assume the court erred, that error was harmless under any standard of prejudice because Robles concedes on appeal that he was convicted of two counts of attempted murder, a crime that is not eligible for resentencing under section 1170.95. (See People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18.) In other words, because Robles was ineligible for resentencing as a matter of law, appointed counsel or additional briefing could not have provided any meaningful assistance with respect to his section 1170.95 petition. (People v. Daniel (2020) 57 Cal.App.5th 666, 675, review granted Feb. 24, 2021, S266336 [failure to appoint counsel “upon filing of a facially sufficient petition under section 1170.95 is susceptible to review for prejudice, ” and harmlessness is established if the record conclusively shows the petitioner was ineligible for relief as a matter of law].)
When interpreting a statute, we first look to its words, giving them their ordinary and plain meaning and viewing them in the context of the entire statutory scheme. (People v. Colbert (2019) 6 Cal.5th 596, 603.) If the statutory language is not ambiguous, the plain meaning of the language governs. (Ibid.)
As a preliminary matter, we note that this court and several others have already held that section 1170.95, by its plain terms, does not apply to attempted murder. (See e.g., People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019, S258234 (Munoz); People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105, review granted Nov. 13, 2019, S258175 (Lopez); Harris, supra, 60 Cal.App.5th at pp. 565-571.) This issue is also pending review before the Supreme Court. Until the Supreme Court resolves this issue, we see no reason to depart from the reasoning of the decisions cited above.
There is currently a split among the appellate courts as to whether S.B. 1437 applies generally to attempted murder convictions. (See People v. Harris (2021) 60 Cal.App.5th 557, 565, review granted Apr. 21, 2021, S267529 (Harris) [acknowledging split in authority].) Our analysis in this opinion is limited only to whether section 1170.95's sentencing relief procedures apply to final convictions for attempted murder.
Section 1170.95 expressly identifies only two classes of offenses that are eligible for resentencing-felony murder and murder under a natural and probable consequences theory. (§ 1170.95, subds. (a), (d).) And S.B. 1437 identifies as its purpose the need 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.” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.) Nowhere does section 1170.95 mention attempted murder. (See § 1170.95.) Had the Legislature intended to allow defendants convicted of attempted murder to petition for resentencing, it easily could have said so in section 1170.95. (Lopez, supra, 38 Cal.App.5th at p. 1104.) Thus, the plain language of the statute makes clear it does not apply to attempted murder. (Munoz, supra, 39 Cal.App.5th at p. 754.)
Robles contends that construing section 1170.95 to exclude attempted murder would lead to absurd results. (See People v. Morales (2019) 33 Cal.App.5th 800, 806 [literal reading of statute should be avoided if it would lead to an absurd result].) Specifically, Robles argues that allowing defendants convicted of murder, but not defendants convicted of attempted murder, to seek resentencing relief would lead to the absurd result of those convicted of the more serious offense-murder-obtaining reduced sentences while those convicted of the less serious offense-attempted murder-would not be eligible for such relief.
This argument fails for a couple of reasons. First, as we just explained, it is clear from the language of section 1170.95 that the Legislature intended to provide sentencing relief only to those convicted of murder under a felony murder or natural and probable consequences theory. (See Munoz, supra, 39 Cal.App.5th at p. 757.) The Legislature's exclusion of attempted murder was not simply an oversight.
Second, as the court in Harris explained, the natural and probable consequences doctrine is a general theory of accomplice liability; it doesn't just apply to murder and attempted murder. (Harris, supra, 60 Cal.App.5th at p. 568.) Thus, even after S.B. 1437's enactment, the natural and probable consequences doctrine remains a valid theory of accomplice liability for a variety of other crimes. (Harris, at pp. 568-569.) “We cannot infer from the alleged absurdity of such disparate treatment that the Legislature actually intended to provide relief as to the lesser crimes as well. ‘When the Legislature reforms one area of the law, it is not required to reform other areas of the law. [Citation.] It may elect to make reforms “ ‘ “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”' ”' [Citation.]” (Id. at p. 569.)
Robles relies on People v. King (1993) 5 Cal.4th 59 (King), People v. Barrajas (1998) 62 Cal.App.4th 926 (Barrajas), and People v. Franske (2018) 28 Cal.App.5th 955 (Franske) to argue a literal reading of section 1170.95 would create absurd results in the statute's application. Robles's reliance on these cases is misplaced.
King addressed a sentencing anomaly created over time by a series of legislative amendments and court decisions through which juveniles convicted of first degree murder were eligible for placement in the California Youth Authority (CYA), while juveniles convicted of attempted murder were not eligible for such placement but instead had to be sentenced to prison. (King, supra, 5 Cal.4th at pp. 62-63.) After reviewing the legislative history that triggered the anomaly, the court concluded, “The clear legislative intent to make first degree murderers under the age of 18-and by extension those who attempt but fail to commit the crime-eligible for CYA should prevail over any irrational result caused by the amendment of different statutes in separate codes at different times for unrelated purposes. ‘[T]he “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.' ” (Id. at p. 69.)
A similar situation does not exist here. As Lopez explained, S.B. 1437 is a single piece of legislation, and the statute's language and statements of purpose make clear that the Legislature intended “to provide a benefit to one category of aiders and abettors prosecuted under the natural and probable consequences doctrine-those facing the lengthiest prison sentences-and not to others.” (Lopez, supra, 38 Cal.App.5th at p. 1107; see also Munoz, supra, 39 Cal.App.5th at p. 759.)
In Barrajas, the court held that a remedial statute, which allowed defendants charged with certain drug offenses to enter a diversion program, also applied to defendants charged with attempts to commit the same offenses, even though the statute did not expressly identify attempts as qualifying offenses. (Barrajas, supra, 62 Cal.App.4th at p. 929.) The court explained that there was “no apparent reason consistent with this purpose to treat persons who attempted a divertible offense differently from those who completed it.” (Id. at p. 930.)
Unlike the statutory scheme at issue in Barrajas, S.B. 1437 “does not preclude an attempted murderer from being sentenced to a lesser term than a murderer. To the extent a disparity might exist in an individual case, that circumstance is not sufficient to render the plain language of the statute absurd.” (Munoz, supra, 39 Cal.App.5th at pp. 759-760.) If the Legislature later determines that it is unwise or unfair to exclude attempted murderers from section 1170.95's scope, “it has only to amend the law.” (Munoz, at pp. 759-760.)
Franske addressed whether, under the facts giving rise to the defendant's second degree robbery conviction, he was entitled to postconviction relief under section 1170.18, which was added by Proposition 47. (Franske, supra, 28 Cal.App.5th at pp. 958-959.) Section 1170.18 created a mechanism by which defendants convicted of a variety of theft-related crimes that had been reduced from felonies to misdemeanors could petition the trial court to have their convictions reduced if they could show they would only have been guilty of a misdemeanor had Proposition 47 been in effect at the time they were convicted. (Franske, at pp. 958-959; see also § 1170.18.) The reviewing court held the defendant qualified for resentencing because, under the facts of that particular case, the defendant's theft of a store employee's wallet and cigarettes qualified as misdemeanor shoplifting as that offense was defined in section 459.5. (Franske, at pp. 958-959.)
Here, by contrast, section 1170.95 unequivocally provides relief to defendants convicted of only two classes of crimes-felony murder and murder under a natural and probable consequences theory. Because attempted murder, under any set of facts, cannot qualify as felony murder or murder under the natural and probable consequences doctrine, the analysis in Franske does not apply in this case.
We also reject Robles's contention that reading section 1170.95 to exclude attempted murder violates his state and federal equal protection rights.
As a threshold matter, defendants convicted of attempted murder are not similarly situated to those convicted of murder. As S.B. 1437 makes clear, the purpose of the legislation is to “ ‘more equitably sentence offenders in accordance with their involvement in homicides.' ” (Lopez, supra, 38 Cal.App.5th at p. 1109, quoting Stats. 2018, ch. 1015, § 1, subd. (b).) Murder, a homicide offense, and attempted murder, a non-homicide offense, are not the same crime, and a person convicted of murder is generally subject to more severe punishment than a person convicted of attempted murder. (See § 190, subd. (a) [defining punishment for persons convicted of first or second degree murder]; § 664 [defining punishment for attempted murder and willful, deliberate, and premeditated attempted murder].) These differences in the nature of the offenses and forms of punishment necessarily mean a person convicted of attempted murder is not similarly situated to a person convicted of murder. (Lopez, supra, 38 Cal.App.5th at p. 1109; Munoz, supra, 39 Cal.App.5th at pp. 760-761.) For that reason alone, Robles's equal protection challenge fails. (Lopez, at p. 1110.)
But, even if we were to assume defendants convicted of attempted murder are similarly situated to those convicted of murder, section 1170.95's disparate treatment of those two groups does not implicate a suspect class or fundamental right. (Harris, supra, 60 Cal.App.5th at pp. 569-570; see also Lopez, supra, 38 Cal.App.5th at p. 1111 [“a defendant ‘ “does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives”' ”].) Thus, the statute is subject to rational basis review. (Harris, at p. 570; see also Munoz, supra, 39 Cal.App.5th at p. 762 [“[C]ourts have repeatedly held that the rational basis test applies to equal protection claims based on sentencing disparities.”].) “ ‘To mount a successful rational basis challenge, a party must “ ‘negat[e] every conceivable basis' ” that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its “ ‘wisdom, fairness, or logic.' ”' [Citation.]” (Harris, at p. 570.)
A rational basis exists for section 1170.95's disparate treatment of defendants convicted of murder and those convicted of attempted murder. As we already noted, the punishment for murder is generally more severe than the punishment for attempted murder. (Harris, supra, 60 Cal.App.5th at p. 570.) Thus, the Legislature could have reasonably concluded that the punishment for murder based on the felony murder rule or the natural and probable consequences doctrine was too excessive, while the punishment for attempted murder remained appropriate, and, as such, reform was only needed to change the manner in which those forms of murder were punished. (Ibid.) The Legislature also could have determined that there would be too severe an increase in court costs and workloads if defendants convicted of felony murder or murder under the natural and probable consequences doctrine and defendants convicted of attempted murder were allowed to petition the courts for resentencing. (Lopez, supra, 38 Cal.App.5th at p. 1112.) In light of the increased punishment for defendants convicted of murder, the Legislature reasonably could have decided to limit section 1170.95's application to only that class of defendants “to maintain the state's financial integrity.” (Ibid.)
In short, section 1170.95's application to only defendants convicted of murder, and not those convicted of attempted murder, does not violate equal protection. Because Robles is ineligible for relief as a matter of law under section 1170.95, any error in the court's summary denial of his resentencing petition was harmless.
DISPOSITION
The order denying Robles's section 1170.95 petition is affirmed.
WE CONCUR: EGERTON, J. KALRA, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.