People v. Lopez CA2/4 ( 2021 )

Filed 9/14/21 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307654
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.TA145893)
v.
JIMMY LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Shultz, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan, Assistant Attorney
General, Amanda Lopez and Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.
On May 23, 2018, the People filed an information charging
appellant Jimmy Lopez and two codefendants with murder.
(Pen. Code, § 187, subd. (a).1) The information further alleged
that the crime was committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(C)), and that a principal used a
firearm in the commission of the offense (§§ 12022, subd. (a)(1),
12022.53, subds. (b), (c), (d), (e)(1).) Pursuant to a plea offer, in
July 2018 appellant pled no contest to voluntary manslaughter
(§ 192, subd. (a)) and admitted the firearm allegation under
section 12022, subdivision (a)(1). He was sentenced to 12 years
in prison.
In April 2020, appellant filed a petition for resentencing
under section 1170.95. On the form petition, he checked the box
stating, “I pled guilty or no contest to 1st or 2nd degree murder in
lieu of going to trial because I believed I could have been
convicted of 1st or 2nd degree murder at trial pursuant to the
felony murder rule or the natural and probable consequences
doctrine.” The trial court summarily denied the petition, stating
that appellant was not entitled to relief as a matter of law
because he had been convicted of voluntary manslaughter, not
murder.
Appellant timely appealed.
DISCUSSION
Under section 1170.95, subdivision (a), “A person convicted
of felony murder or murder under a natural and probable
consequences theory may file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
1All further statutory references are to the Penal Code
unless otherwise indicated.
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(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.”
Appellant asserts that he is entitled to resentencing under
section 1170.95 because he accepted a plea offer in lieu of a trial
at which he could have been convicted of first degree or second
degree murder. He contends the trial court’s order denying his
petition was erroneous and violated his constitutional rights to
equal protection and due process. The People contend the
petition was properly denied.
The proper interpretation of a statute is a question of law
we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
To interpret a statute, “[w]e begin by examining the words of the
statute, affording them ‘their ordinary and usual meaning and
viewing them in their statutory context.’” (People v. Colbert
(2019) 6 Cal.5th 596, 603.) If the statutory language is not
ambiguous, the plain meaning governs. (Ibid.)
Section 1170.95 explicitly states that it applies to “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory,” and it allows “the petitioner’s
murder conviction” to be vacated. (§ 1170.95, subd. (a).) The
People assert that the provision’s references to murder exclude
persons convicted of voluntary manslaughter, and therefore
appellant was not entitled to relief. Appellant contends that such
a “narrow interpretation” of section 1170.95 would render
subdivision (a)(2)’s reference to a plea offers superfluous.
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We agree with the many cases holding that the plain
language of section 1170.95 bars relief for defendants convicted of
voluntary manslaughter. (See, e.g., People v. Paige (2020) 51
Cal.App.5th 194, 204 (Paige) [“defendants charged with felony
murder but convicted of voluntary manslaughter pursuant to a
plea agreement are not eligible for relief under section 1170.95”];
People v. Turner (2020) 45 Cal.App.5th 428, 438 (Turner) [“a
defendant who faces murder liability under the natural and
probable consequences doctrine, but pleads guilty to
manslaughter in lieu of trial, is not eligible for resentencing
under section 1170.95”]; 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”]; People v.
Sanchez (2020) 48 Cal.App.5th 914, 920 (Sanchez) [“section
1170.95 relief is not available to those offenders who pled guilty
to voluntary manslaughter”]; People v. Cervantes (2020) 44
Cal.App.5th 884, 887 (Cervantes) [“The plain language of the
statute is explicit; its scope is limited to murder convictions.”].)
Appellant acknowledges this case law, but asserts that
these cases were wrongly decided and should not be followed. He
asserts that if the Legislature “intended to limit eligibility for
relief under section 1170.95 to defendants convicted of first or
second degree murder,” subdivision (a)(2) would say so explicitly.
He argues that the “more specific provision” of subdivision (a)(2)
controls over the more general language in the “introductory
provision” of the statute.
We do not agree with this interpretation of the statute. As
the court stated in Paige, supra, section 1170.95, subdivision
(a)(2) sets out only “one of three conditions—all of which must
also apply before the person convicted of felony murder or natural
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and probable consequences murder may seek relief under section
1170.95. Given the structure of the statute and the language in
the first paragraph of section 1170.95, subdivision (a), the
reference to a person who ‘accepted a plea offer’ in subdivision
(a)(2) must necessarily mean a person who accepted a plea to,
and was convicted of, first or second degree murder in lieu of a
trial at which he could have been convicted of either of those
charges.” (Paige, supra, 51 Cal.App.5th at p. 202; see also
Turner, supra, 45 Cal.App.5th at p. 436 [focus on subdivision
(a)(2) “ignores the introductory language in section 1170.95,
subdivision (a) that limits petitions to persons ‘convicted of . . .
murder.’”]; Sanchez, supra, 48 Cal.App.5th at p. 919 [same].)
Appellant argues that such a reading of the statute is
inconsistent with the “purposes” of the statute and the intent of
the Legislature. However, “[i]f the plain language of the statute
is clear and unambiguous, our inquiry ends, and we need not
embark on judicial construction. [Citation.] If the statutory
language contains no ambiguity, the Legislature is presumed to
have meant what it said, and the plain meaning of the statute
governs.” (People v. Johnson (2002) 28 Cal.4th 240, 244.) The
plain language of section 1170.95 states that it applies to persons
convicted of murder, and it allows “the petitioner’s murder
conviction” to be vacated. (§ 1170.95, subd. (a).) We therefore
need not engage in further judicial construction.
Appellant also contends that section 1170.95 violates his
right to equal protection under the United States and California
constitutions. Again, we agree with the cases that have rejected
similar challenges. “The first step in an equal protection analysis
is to determine whether the defendant is similarly situated with
those who are entitled to the statutory benefit.” (Cervantes,
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supra, 44 Cal.App.5th at p. 888.) As in Cervantes, appellant here
“was convicted of voluntary manslaughter, a different crime from
murder, which carries a different punishment. Normally
‘offenders who commit different crimes are not similarly situated’
for equal protection purposes.” (Ibid.; see also Paige, supra, 51
Cal.App.5th at pp. 205-206; Sanchez, supra, 48 Cal.App.5th at
pp. 920-921.)
Appellant further asserts that the superior court’s ruling
violated “guarantees of substantive due process.” We disagree.
“‘[S]ubstantive due process requires a rational relationship
between the objectives of a legislative enactment and the
methods chosen to achieve those objectives.’” (Cervantes, supra,
44 Cal.App.5th at p. 889.) In section 1170.95, “there was such a
relationship. The legislative goal was to eliminate the sentencing
disparity caused by the felony murder rule.” (Ibid.) Thus,
appellant’s substantive due process rights were not violated.
Finally, appellant asserts that the superior court erred in
summarily denying his petition without appointing counsel or
allowing briefing on the issues. He asserts this was structural
error requiring automatic reversal, or in the alternative, that the
error was prejudicial under any standard. The People assert that
appellant was not entitled to counsel, and even if he was, any
error was harmless.
After briefing in this case was complete, the Supreme Court
held that under section 1170.95, “petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition (see § 1170.95, subds. (b), (c)) and that only after the
appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine
whether ‘the petitioner makes a prima facie showing that he or
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she is entitled to relief.’ (§ 1170.95, subd. (c).)” (People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) The court also held that the
deprivation of the right to counsel under section 1170.95 is “state
law error only, tested for prejudice under People v. Watson (1956)
46 Cal.2d 818, 299 P.2d 243 (Watson).” (Ibid.)
Under the standard articulated in Lewis, the superior court
erred in failing to appoint counsel to appellant. Appellant’s
section 1170.95 petition was arguably facially sufficient, because
he incorrectly checked the box stating that he “pled guilty or no
contest to 1st or 2nd degree murder.” Any error was harmless,
however. Because a person convicted of voluntary manslaughter
is not eligible for section 1170.95 relief, appellant cannot
“demonstrate there is a reasonable probability that in the
absence of the error he or she would have obtained a more
favorable result.” (People v. Lightsey (2012) 54 Cal.4th 668, 699.)
DISPOSITION
The denial of appellant’s petition under section 1170.95 is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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