People v. Herrera CA2/7 ( 2021 )

Filed 5/18/21 P. v. Herrera CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301607
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA066571)
v.
ANTHONY HERRERA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Patrick E. Connolly, Judge. Affirmed.
Cynthia L. Barnes, 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, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
________________
Anthony Herrera appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.95,1 contending the superior court erred in ruling
section 1170.95 did not apply to attempted murder and
summarily denying his petition without first appointing counsel.
We rejected Herrera’s first argument in People v. Lopez (2019)
38 Cal. App. 5th 1087, review granted November 13, 2019,
S258175 (Lopez), and his second argument in People v. Verdugo
(2020) 44 Cal. App. 5th 320, review granted March 18, 2020,
S260493 (Verdugo). Because Herrera has advanced no
persuasive reason for us to reconsider our decision in either case,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial established that Herrera, acting
alone, robbed Federico Mendez at gunpoint and then shot him
when he said he had no more mony. Mendez required surgery for
the gunshot wound to his stomach.
Herrera was convicted by a jury of attempted murder
(§§ 664, 187) and second degree robbery (§ 211). The jury also
found true special allegations Herrera had used a firearm during
the offenses (§ 12022.53, subds. (b) & (d)). Following a remand by
this court to correct sentencing error (People v. Herrera (Feb. 14,
2006, B173384) [nonpub. opn.]) the trial court sentenced Herrera
to an aggregate indeterminate state prison term of 40 years to
life. We affirmed the judgment. (People v. Herrera (Dec. 18,
2007, B194531) [nonpub. opn.].)
On August 22, 2019 Herrera, representing himself, filed a
petition for resentencing under section 1170.95. Checking boxes
1 Statutory references are to this code.
2
on the preprinted form petition, Herrera declared under penalty
of perjury that he had been convicted of first or second degree
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine. Herrera requested appointment
of counsel during the resentencing process.
The superior court summarily denied the petition on
September 3, 2019, ruling Herrera was ineligible for resentencing
as a matter of law because he had not been convicted of murder.
Herrera filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437, the Section 1170.95 Petition
Procedure and the Right To Counsel
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal. 5th 830, 842-843 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal. App. 5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal. App. 5th 1077, 1080.)
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
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 because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.)
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If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process 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. The superior court
properly proceeds under subdivision (c) 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.” (People v. Verdugo (2020) 44 Cal. App. 5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; accord, People
v. Soto (2020) 51 Cal. App. 5th 1043, 1054, review granted
Sept. 23, 2020, S263939; People v. Drayton (2020) 47 Cal. App. 5th
965, 975; but see People v. Cooper (2020) 54 Cal. App. 5th 106, 118,
review granted Nov. 10, 2020, S264684 [section 1170.95,
subdivision (c), contemplates only one prima facie review before
an order to show cause issues].)
As to the first step, we explained in Verdugo, “[B]ecause a
petitioner is not eligible for relief under section 1170.95 unless he
or she was convicted of first or second degree murder based on a
charging document that permitted the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the
court must at least examine the complaint, information or
indictment filed against the petitioner; the verdict form or factual
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basis documentation for a negotiated plea; and the abstract of
judgment. Based on a threshold review of these documents, the
court can dismiss any petition filed by an individual who was not
actually convicted of first or second degree murder.” (Verdugo,
supra, 44 Cal.App.5th at pp. 329-330, review granted.)
A petitioner is entitled to appointment of counsel, we held,
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. (Verdugo, supra, 44 Cal.App.5th at p. 332,
review granted; accord, People v. York (2020) 54 Cal. App. 5th 250,
262-263, review granted Nov. 18, 2020, S264954; People v. Lewis
(2020) 43 Cal. App. 5th 1128, 1140, review granted Mar. 18, 2020,
S260598.) The court in People v. Cooper, supra, 54 Cal. App. 5th
106, review granted, disagreed that section 1170.95,
subdivision (c), contemplates two separate steps and held a
petitioner is entitled to counsel upon the filing of a facially
sufficient petition for relief that requests counsel be appointed.
(Cooper, at p. 123.)
We do not find persuasive the Cooper court’s interpretation
of section 1170.95, subdivision (c). Unless we receive different
instructions from the Supreme Court, we adhere to the analysis
set forth in Verdugo and the cases that have followed it.
Accordingly, because the record of conviction established as a
matter of law that Herrera was not convicted of first or second
degree murder, the superior court properly denied his petition
without first appointing counsel.
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2. The Superior Court Did Not Err in Summarily Denying
Herrera’s Petition for Resentencing
In Lopez, supra, 38 Cal.App.5th at page 1104, review
granted, we held Senate Bill 1437 did not modify the law
regarding accomplice liability for attempted murder, explaining
there was nothing ambiguous in the language of the legislation,
which, in addition to omitting any reference to attempted
murder, specifically identified its purpose as 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).)
We added that the Legislature’s intent to exclude crimes other
than murder was underscored by the language of section 1170.95,
subdivision (a), which authorizes only those individuals
“convicted of felony murder or murder under a natural and
probable consequences theory” to petition for relief and requires
the petition be directed to “the petitioner’s murder conviction.”
(Lopez, at pp. 1104-1105; accord, People v. Love (2020)
55 Cal. App. 5th 273, 279, review granted Dec. 16, 2020, S265445
[Senate Bill 1437 does not eliminate the natural and probable
consequences theory for attempted murder].)
As Herrera points out in his reply brief, our colleagues in
the Fifth District in People v. Larios (2019) 42 Cal. App. 5th 956,
review granted February 26, 2020, S259983, People v. Medrano
(2019) 42 Cal. App. 5th 1001, review granted March 11, 2020,
S259948, and People v. Sanchez (2020) 46 Cal. App. 5th 637,
review granted June 10, 2020, S261768 reached a contrary
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conclusion, holding Senate Bill 1437’s amendment to
section 188’s definition of malice applied not only to murder but
also to attempted murder under the natural and probable
consequences theory of liability. (Larios, at pp. 966-967;
Medrano, at p. 1015; Sanchez, at p. 642.)
However this split in authority regarding the breadth of
Senate Bill 1437’s prospective modification of the law of
accomplice liability may be resolved,2 no court has held the
remedial provisions of section 1170.95 apply to a petitioner
seeking resentencing for a final conviction of attempted murder.
(See, e.g., People v. Harris (2021) 60 Cal. App. 5th 557, 565-566,
review granted Apr. 28, 2021, S267802 [“[w]e join the other
appellate courts that have concluded that relief under section
1170.95 is not available to those convicted of attempted murder”];
People v. Love, supra, 55 Cal.App.5th at p. 292, review granted
[section 1170.95’s “mechanism for retroactive relief applies only
to persons seeking to vacate a conviction for ‘murder’; it says
nothing about attempted murder”]; People v. Larios, supra,
42 Cal.App.5th at p. 970, review granted [“No language in
2 In granting review in Lopez, supra, S258175, the Supreme
Court directed that briefing and argument be limited to the
following issues: “(1) Does Senate Bill No. 1437 (Stats. 2018,
ch. 1015) apply to attempted murder liability under the natural
and probable consequences doctrine? (2) In order to convict an
aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should People v. Favor (2012) 54 Cal. 4th
868 be reconsidered in light of Alleyne v. United States (2013)
570 U.S. 99 and People v. Chiu (2014) 59 Cal. 4th 155?”
7
section 1170.95 references relief to persons convicted of
attempted murder. And, as noted in Lopez, the legislative history
of Senate Bill 1437 supports the conclusion section 1170.95 was
intended to apply only to persons convicted of murder”].) This
unanimity is not surprising given the express language of
section 1170.95, subdivision (a), which, as we emphasized in
Lopez, supra, 38 Cal.App.5th at pages 1104 through 1105, review
granted, authorizes resentencing relief only for individuals
convicted of murder.
The checked box in Herrera’s petition notwithstanding,
there is no dispute his commitment offense was attempted
murder, a fact confirmed by the record of conviction. Accordingly,
his ineligibility for resentencing under section 1170.95 was
established as a matter of law. The court did not err in
summarily denying the petition.
DISPOSITION
The order denying Herrera’s petition for resentencing is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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