People v. Albarran CA4/1 ( 2021 )

Filed 6/9/21 P. v. Albarran CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077893
Plaintiff and Respondent,
v. (Super. Ct. No. INF060734)
MARCOS ANTONIO ALBARRAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
John D. Molloy, Judge. Affirmed.
Patricia A. Scott, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for
Plaintiff and Respondent.
In 2013, a jury convicted Marcos Antonio Albarran of first degree
murder (Pen. Code,1 § 187, subd. (a)) and attempted murder (§§ 664 & 187,
subd. (a)), among other offenses. Albarran appealed and this court reversed
the judgment in an unpublished opinion. (People v. Albarran (July 6, 2015,
D067418) [nonpub. opn.].) The case was remanded to the superior court.
On remand, Albarran entered into a plea agreement under which he
pleaded guilty to one count of voluntary manslaughter for the benefit of a
street gang. (§§ 192 & 186.22, subd. (b).) He also admitted three counts of
attempted murder. (§§ 187 & 664.) Albarran was sentenced to a determinate
term of 16 years in prison.
In June 2020, Albarran filed a pro. per. petition for resentencing under
section 1170.95. Although he was not convicted of murder, he contended he
was still entitled to resentencing. The trial court denied the petition, finding
Albarran’s convictions for manslaughter and attempted murder did not
qualify him for relief under section 1170.95.
Albarran appeals, contending his convictions for manslaughter and
attempted murder are eligible for resentencing because he was originally
prosecuted under theories of felony murder and natural and probable
consequences. His briefs on appeal acknowledge existing case law is virtually
unanimous that the essential predicate for relief under this particular statute
is a conviction for either first or second degree murder. He contends that all
of the cases reaching such conclusions were wrongly decided. We will reject
Albarran’s arguments and follow the cases from this court and others which
have soundly rejected his arguments and affirm.
1 All further statutory references are to the Penal Code.
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DISCUSSION
I
The Manslaughter Conviction
Senate Bill No. 1437 “was enacted ‘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.’ ”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
Section 1170.95 was created to permit defendants convicted of felony
murder or murder under a natural and probable consequences theory to file a
petition for resentencing to have the murder conviction vacated and to be
resentenced on any remaining counts. (§ 1170.95, subd. (a).)
The beginning point of the analysis of Senate Bill No. 1437 is that the
defendant must have been convicted of murder or by plea in a case
prosecuted on a felony murder or natural consequences theory. (Martinez,
supra, 31 Cal.App.5th at p. 723.) In this case Albarran was not convicted of
murder, and his conviction did not arise from an offense where malice is an
element of the crime. Thus, Albarran is not a person aggrieved by the former
methods of proving malice that the Legislature has now rejected.
The arguments that the statute applies to persons convicted of
manslaughter after being charged with murder or that the failure to apply
the statute to manslaughter convictions would violate equal protection have
been soundly rejected by the courts of appeal, including the following cases:
1) People v. Harris (2021) 60 Cal.App.5th 557, 565-571 [Fourth Appellate
District, Division Two]; 2) People v. Sanchez (2020) 48 Cal.App.5th 914, 916,
918-921 [Fourth Appellate District, Division Two]; 3) People v. Paige (2020)
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51 Cal.App.5th 194, 197-198 [First Appellate District, Division Two];
4) People v. Turner (2020) 45 Cal.App.5th 428, 435-439 (Turner) [Fourth
Appellate District, Division One]; 5) People v. Flores (2020) 44 Cal.App.5th
985, 992-997 [Fourth Appellate District, Division One]; and 6) People v.
Cervantes (2020) 44 Cal.App.5th 884, 887-888 [Second Appellate District,
Division Six].
We have reviewed the cases listed above, all of which have rejected all
of Albarran’s arguments. We agree with the analysis in each of the cases.
In Turner, supra, 45 Cal.App.5th at pages 435 through 439, this court
analyzed the arguments that are now presented in this appeal. We carefully
considered the same arguments and found them to not be persuasive. We
continue to hold to the views we expressed in Turner. For the reasons set
forth in Turner, we once again hold that a person convicted by plea of
voluntary manslaughter is not eligible for resentencing under
section 1170.95. We further hold that denial of eligibility for relief to persons
convicted of voluntary manslaughter does not violate equal protection.
II
The Attempted Murder Convictions
Senate Bill No. 1437 substantially modifies the definitions on malice in
murder cases. It alters the definitions as far as they involve aiders and
abettors who are prosecuted under felony murder. (See §§ 188 and 189.)
While new definitions of malice affect current prosecutions that are not final
on appeal, the new remedy for past convictions under section 1170.95 applies
only to persons who were previously convicted of murder. (People v. Munoz
(2019) 39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234;
People v. Dennis (2020) 47 Cal.App.5th 838, 844-847, review granted July 29,
2020, S262184; People v. Sanchez (2020) 46 Cal.App.5th 637, 642-644, review
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granted June 10, 2020, S261768; People v. Alaybue (2020) 51 Cal.App.5th
207, 222.)
There are some differences between the courts on the issue of the
impact of the changes in definitions of malice on non-final cases, but the
appellate courts have been in agreement that section 1170.95 does not
provide relief for persons convicted of only attempted murder.
Our Supreme Court has granted review in a number of cases to
determine the effect of Senate Bill No. 1437 on the elements of attempted
murder. The court has framed the issue as “Does Senate Bill No. 1437 (Stats.
2018, ch. 1015) apply to attempted murder liability under the natural and
probable consequences doctrine?” (People v. Lopez (2019) 38 Cal.App.5th
1087, review granted Nov. 13, 2019, S258175.)
Given the number of courts which have rejected Albarran’s arguments,
including this court, we will not revisit the discussions from those cases.
Suffice that we agree with the unanimous rejections of the arguments
Albarran makes here. For the reasons stated in the multiple opinions, we
again reject the contentions and find the trial court correctly found Albarran
was not entitled to relief under section 1170.95.
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DISPOSITION
The order denying Albarran’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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