People v. Mateo CA2/4 ( 2021 )

Filed 4/20/21 P. v. Mateo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND AP PELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305965
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA414092)
v.
MILTON MATEO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Affirmed.
James Koester, 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, Idan Ivri, and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Milton Mateo was convicted of attempted
premeditated murder in July 2014. We affirmed his conviction in
February 2016 (see People v. Mateo (Feb. 10, 2016, B258333)
[nonpub. opn.]), and appellant sought review in the Supreme
Court. The Supreme Court granted review (May 11, 2016,
S232674), then remanded the case to this court with instructions
to reconsider it in light of changes to the Penal Code enacted with
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch.
1015) (Senate Bill 1437), which went into effect on January 1,
2019. In July 2019 we again affirmed appellant’s conviction, and
held that his request for relief under Penal Code section 1170.951
must be presented to the superior court in the first instance. (See
People v. Mateo (July 9, 2019, B258333) [nonpub. opn.] (Mateo
II).) Appellant again sought review in the Supreme Court, which
was denied.
In March 2020, appellant filed a petition for resentencing
under section 1170.95 in the superior court. The court denied the
petition without holding a hearing, finding that appellant was
ineligible for relief as a matter of law because he had been
convicted of attempted murder. Appellant now appeals that
ruling.
We affirm. Relief under a petition filed under section
1170.95 is limited to qualifying petitioners convicted of murder.
Appellant was convicted of attempted murder, and is therefore
ineligible for relief under that section.
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
As stated in our previous opinions, in March 2013,
appellant initiated a fistfight with rival gang member Edwin
Cuatlacuatl outside a Los Angeles grocery store. Gunni
Scroggins—appellant’s companion, fellow gang member, and
codefendant—entered the fray and stabbed Cuatlacuatl twice in
the neck before fleeing the scene with appellant. A jury found
Scroggins guilty of attempted premeditated murder (§§ 187, subd.
(a), 664, subd. (a)), and found appellant guilty of the same offense
as an aider and abettor. (See Mateo II, supra, B258333.) The jury
also found true allegations that appellant and Scroggins
committed the offense for the benefit of a criminal street gang.
(§ 186.22, subd. (b)(1)(C).) In Mateo II we affirmed appellant’s
conviction, and held that appellant’s contentions regarding the
applicability of Senate Bill 1437 must be presented to the trial
court in the first instance.
On March 9, 2020, appellant filed a petition for
resentencing under section 1170.95. The form petition includes
statements to establish a petitioner’s eligibility under section
1170.95, which the petitioner may select by checking boxes.
Appellant used an altered form, so instead of stating, for
example, “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine,” appellant’s form stated, “At trial, I was
convicted of ATTEMPTED murder pursuant to the felony murder
rule or the natural and probable consequences doctrine.”
On April 2, 2020, the superior court denied appellant’s
petition. In a written order, the court stated, “The petition is
summarily denied because the petitioner is not entitled to relief
as a matter of law, for the following reason: [¶] The petitioner
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was convicted of attempted murder. A review of the petition and
the court file including the jury instructions, confirms this fact. . .
. [¶] Penal Code § 189(e) as recently amended provides potential
relief only to those individuals convicted of murder who were not
the actual killer or a major participant in the act and where the
prosecution relied upon either the felony murder rule or the
natural and probable consequences doctrine. The relief afforded
by this statute is not available to individuals, like the petitioner,
who were convicted of attempted murder.”
Appellant timely appealed.
DISCUSSION
“In 2018, the Legislature enacted Senate Bill No. 1437 . . .
after determining that there was further ‘need for statutory
changes to more equitably sentence offenders in accordance with
their involvement in homicides.’ (Stats. 2018, ch. 1015, § l, subd.
(b).)” (People v. Gentile (2020) 10 Cal.5th 830, 838-839 (Gentile).)
Senate Bill 1437 added section 1170.95, which allows “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” under certain conditions. (§ 1170.95,
subd. (a).)
Appellant asserts that the trial court erred in summarily
denying his section 1170.95 petition “because there is currently a
split of authority regarding whether the ameliorative provisions
of [Senate Bill] 1437 apply to defendants who have been
convicted of attempted murder.” Because appellant challenges
the superior court’s interpretation of the relevant statutes, our
review is de novo. (See, e.g., People v. Gonzalez (2017) 2 Cal.5th
1138, 1141.)
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Courts are in agreement that the procedures in section
1170.95 do not apply to those convicted of attempted murder.
(See, e.g., People v. Medrano (2019) 42 Cal.App.5th 1001, 1018
(Medrano), rev. granted Mar. 11, 2020, S259948 [“the 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. Larios (2019) 42
Cal.App.5th 956, 970, rev. granted Feb. 26, 2020, S259983
[same]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1105 (Lopez),
rev. granted Nov. 13, 2019, S258175 [Section 1170.95, subdivision
(a)’s references to murder reflect “[t]he Legislature’s obvious
intent to exclude attempted murder from the ambit of the SB
1437 reform”]; People v. Scott (2020) 58 Cal.App.5th 1127, 1132,
[“Section 1170.95 does not authorize relief for those convicted of
attempted murder”]; People v. Flores (2020) 44 Cal.App.5th 985,
993 [“the plain language of section 1170.95 limits relief only to
qualifying persons who were convicted of murder”.) We agree
that the plain language of section 1170.95 does not authorize
relief for those convicted of attempted murder.
Appellant contends that even if he is not entitled to relief
under the procedures set out in section 1170.95, “there are
equitable considerations” that should be considered due to the
procedural posture of this case, and therefore “this court may
consider the merits of appellant’s petition under a habeas corpus
type review.” He argues that we should consider his conviction in
light of Senate Bill 1437’s changes to section 188,2 because “[t]he
2“Senate Bill 1437 amended Penal Code section 188 to
provide that ‘[e]xcept as stated in subdivision (e) of Section 189
[governing felony murder], in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice
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amendment to section 188 has effectively eliminated a natural
and probable consequences theory of aiding and abetting as a
means of convicting an individual of murder.”
Appellant asserts reasoning similar to that relied upon in
Medrano, supra, 42 Cal.App.5th 1001. There, the court discussed
Senate Bill 1437 in light of “the Estrada rule,” arising from In re
Estrada (1965) 63 Cal.2d 740, 744-745, which holds that newly
enacted legislation decreasing criminal punishment or reducing
criminal liability may apply to convictions that are not yet final
at the time of the legislation’s effective date. The Medrano court,
considering the applicability of Senate Bill 1437, stated that the
Estrada rule “requires us to consider [the defendants’] claim on
direct appeal, given that Senate Bill 1437 resulted in an
ameliorative change to the criminal law applicable to their
convictions.” (Medrano, supra, 42 Cal.App.5th at p. 1018.)
Here, appellant acknowledges that his case is no longer on
direct appeal, but states that he asserted these contentions in his
direct appeal and we failed to address them in Mateo II because
we required him to present his petition to the superior court in
the first instance. He asserts, “It would be a sad irony that,
having followed this Court’s recommendation, consideration of
appellant’s claim should be foreclosed because some appellate
courts are now deciding that section 1170.95 petition relief does
not apply to attempted murder convictions.” He therefore urges
this court to “consider appellant’s [Senate Bill] 1437 [petition]
within a[n] In re Estrada, supra, 63 Cal.2d 740 type review.”
Appellant fails to acknowledge the Supreme Court’s recent
opinion in Gentile, supra, 10 Cal.5th 830, which was issued before
shall not be imputed to a person based solely on his or her
participation in a crime.’” (Gentile, supra, 10 Cal.5th at p. 839.)
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briefing on this case was complete. In Gentile, the Supreme
Court considered and rejected the application of the Estrada rule
to Senate Bill 1437, stating, “The ameliorative provisions of
Senate Bill 1437 do not apply on direct appeal to nonfinal
convictions obtained before the law became effective. Such
convictions may be challenged on Senate Bill 1437 grounds only
through a petition filed in the sentencing court under section
1170.95.” (Gentile, supra, 10 Cal.5th at pp. 851-852.)
Because section 1170.95 is the only available avenue for
relief for the provisions enacted through Senate Bill 1437, and
section 1170.95 does not apply to those convicted of attempted
murder, the provisions of Senate Bill 1437 are not available to
appellant, who was convicted of attempted murder. The superior
court therefore did not err in summarily denying appellant’s
petition.
DISPOSITION
The denial of appellant’s petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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