People v. Taylor CA2/1 ( 2021 )

Filed 9/23/21 P. v. Taylor CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B306691
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA214317)
v.
JERMAINE TAYLOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and J. Michael Lehmann, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
We deem petitioner Jermaine Taylor’s petition for writ of
habeas corpus to be a petition for resentencing pursuant to Penal
Code section 1170.95.1 We affirm the trial court’s order denying
the petition to resentence Taylor on two counts of attempted
murder. Section 1170.95 does not provide relief for defendants
convicted of attempted murder.
BACKGROUND
The following facts from the appellate opinion following the
judgment of conviction are undisputed.
1. People v. Taylor et al.
Taylor had tattoos suggesting that he was a member of the
Crip gang and admitted membership in the Crip gang. (People v.
Taylor (Nov. 25, 2002, B152885) [nonpub. opn.] (Taylor I).) The
Crip gang was “at war” with the Hollyhood Bloods. (Ibid.)
On October 24, 1998, as Raymond Brown was leaving the
house of a Hollyhood Bloods gang member, Taylor and his
confederate, Terrell Curry, shot multiple times at Raymond
Brown.
Sheriff’s Deputies Jacob Sanchez and Jacob Scuoler heard
the gunshots and followed Taylor, who was driving Curry in a
Buick. Eventually Taylor spun out of control and turned to face
the deputies’ patrol car. “The deputies saw two muzzle flashes
coming from the Buick as shots were fired at them. Both
deputies returned fire. The Buick then began accelerating
toward the deputies’ patrol car. It passed the car and continued
driving away. When it reached the intersection of Myrrh Street
and Atlantic Avenue, it spun out of control again and crashed
1 Undesignated statutory citations are to the Penal Code.
2
into a pole. When defendant Taylor was unable to drive it any
further, he and defendant Curry got out of the Buick and began
running down Atlantic Avenue.” (Taylor I, supra, B152885.)
Taylor left an Uzi assault rifle on the Buick’s driver’s seat.
Deputy sheriffs found seven casings near Brown’s
neighbor’s house, two from an Uzi assault rifle. Investigators
found 16 Uzi shell casings in the Buick.
2. Taylor’s conviction
A jury convicted Taylor of assault with a semiautomatic
firearm on Raymond Brown and of two counts of willful,
deliberate, and premeditated attempted murder of a peace officer
(deputies Jacob Sanchez and Terrence Scuoler). The jury also
convicted Taylor of two counts of assault on a peace officer with a
semiautomatic firearm. The jury also found Taylor guilty of
possession of a firearm by a felon. The jury found true the
allegations that Taylor was armed with an Uzi assault rifle and
the allegations regarding the gang enhancement. The jury found
true the allegation that Taylor personally and intentionally
discharged a firearm in the assault. The jury, moreover, found
true allegations that Taylor had suffered a prior serious felony
conviction and a prior felony conviction for which he served a
state prison term. The jury found not true the allegation that
Taylor personally used or discharged a firearm in the commission
of the attempted murders.
The trial court imposed sentence on October 23, 2002. In
this court’s opinion modifying and affirming the judgment, this
court rejected Taylor’s argument that he could not be vicariously
liable for attempted premediated murder. We concluded, “[T]he
trial court did not err in failing to instruct the jury that
defendant personally had to deliberate and premeditate in order
3
to sustain the attempted murder convictions . . . .” (Taylor I,
supra, B152885.)
3. Taylor’s petition for habeas corpus
Using a standard form, Taylor filed a petition for writ of
habeas corpus on May 21, 2020. Taylor indicated that he was
convicted of attempted murder. In his grounds for relief, Taylor
stated: “Trial court imposed an illegal sentence and conviction of
crime is now illegal.” (Some capitalization omitted.) Taylor
stated that he was convicted by a jury instructed on the natural
and probable consequences doctrine. Taylor cited Senate Bill
No. 1437 as authority supporting relief. In an argument section
attached to the form habeas petition, Taylor stated: “Recently
Senate Bill 1437 was enacted and made changes to the Penal
Code which says malice may not [be] imputed to a person solely
based on his participation in a crime. [¶] In this instant case
clear evidence supports petitioner was the driver of the vehicle
where the passenger was the shooter . . . .” (Some capitalization
omitted.)
4. Trial court order
On June 2, 2020, the trial court denied Taylor’s petition for
writ of habeas corpus, indicating that an illegal sentence was not
imposed. Taylor timed appealed.
DISCUSSION
We deem Taylor’s petition for writ of habeas corpus to be a
petition for resentencing pursuant to section 1170.95. (Cf.
People v. Swanson (2020) 57 Cal.App.5th 604, 610 [trial court
construed petition for writ of habeas corpus to be section 1170.95
petition], review granted Feb. 17, 2021, S266262.) Taylor’s
4
petition relied on Senate Bill No. 1437 which added
section 1170.95. The Attorney General suffers no prejudice from
treating Taylor’s petition as one pursuant to section 1170.95.
Additionally, this court is in as a good a position as the trial
court to resolve the determinative legal question—whether
section 1170.95 encompasses convictions for attempted murder.
A. Background on Section 1170.95
To be convicted of murder, a jury must ordinarily find that
the defendant acted with the requisite mental state, known as
“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172,
1181, quoting § 187, subd. (a).) Until recently, the felony murder
rule provided an exception that made “a killing while committing
certain felonies murder without the necessity of further
examining the defendant’s mental state.” (Chun, at p. 1182.)
Also, until recently, the natural and probable consequences
doctrine permitted a “ ‘ “person who knowingly aids and abets
[the] criminal conduct [of another person] is guilty of not only the
intended crime . . . but also of any other crime the [other person]
actually commits . . . that is a natural and probable consequence
of the intended crime.” ’ [Citation.]” (People v. Chiu (2014)
59 Cal.4th 155, 161; see also People v. Gentile (2020) 10 Cal.5th
830, 845–846.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.), which became
effective January 1, 2019, raised the level of culpability required
for murder liability to be imposed under a felony murder or
natural and probable consequences theory. (See Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended section 189, which
defines the degrees of murder, to limit murder liability based on
felony murder or a natural and probable consequences theory for
a person who: (1) was the actual killer; (2) though not the actual
5
killer, acted “with the intent to kill” and “aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer” in the commission of first degree murder; or
(3) was “a major participant in the underlying felony and acted
with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Senate Bill
No. 1437 also amended the definition of malice in section 188 to
provide that “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
In addition to amending sections 188 and 189, the Legislature
enacted section 1170.95. (Stats. 2018, ch. 1015, § 4, eff. Jan. 1,
2019.) That provision authorizes a person convicted of felony
murder or murder under a natural and probable consequences
theory to file with the sentencing court a petition to vacate the
conviction and be resentenced. (§ 1170.95, subd. (a).)
B. Section 1170.95 Does Not Apply to This Case Because
Taylor Was Not Convicted of Murder
We assume without deciding that the trial court should
have appointed counsel to represent Taylor. (See People v. Lewis
(2021) 11 Cal.5th 952, 962–963 [petitioner’s right to counsel
attaches upon filing of facially valid resentencing petition].)
This assumed error did not prejudice Taylor. (See Lewis, at
pp. 973–974 [denial of statutory right to counsel evaluated under
standard of prejudice described in People v. Watson (1956)
46 Cal.2d 818].)
Taylor is ineligible for resentencing as a matter of law.
Although there are cases prospectively applying the new murder
definitions in sections 188 and 189 to attempted murder, we have
found no case holding that a defendant convicted of attempted
murder is eligible for resentencing under section 1170.95. (See,
6
e.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1104–1107,
review granted Nov. 13, 2019, S258175; People v. Larios (2019)
42 Cal.App.5th 956, 969–970, review granted Feb. 26, 2020,
S259983; People v. Love (2020) 55 Cal.App.5th 273, 292, review
granted Dec. 16, 2020, S265445; People v. Alaybue (2020)
51 Cal.App.5th 207, 222–223.) The plain language of the statute
permits resentencing for murder only. It states “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition” for
resentencing. (§ 1170.95, subd. (a).) Further, the petitioner
must have been “convicted of first degree or second degree
murder . . . .” (§ 1170.95, subd. (a)(2).) On its face, the statute
does not apply to convictions for attempted murder. Contrary to
Taylor’s argument, the statute is not ambiguous.
Pending guidance from our high court, we agree with the
authority holding that section 1170.95 does not apply to
attempted murder. We also agree with the conclusion that there
“is a rational basis for the Legislature’s decision to grant relief
pursuant to section 1170.95 only to murder convictions and
exclude attempted murder convictions based on judicial economy
and the financial costs associated with reopening both final
murder and final attempted murder convictions.” (People v.
Larios, supra, 42 Cal.App.5th at p. 970, review granted; see also
People v. Lopez, supra, 38 Cal.App.5th at pp. 1111–1113, review
granted.) Additionally, “[b]ecause the punishment for murder is
so much more severe than the punishment for attempted murder,
the Legislature may have wished to limit Senate Bill 1437’s
ameliorative reforms to those instances where it perceived the
disconnect between culpability and punishment to be most
glaring. It is not our place to judge the wisdom, fairness, or logic
7
of the Legislature’s decision to omit attempted murder from
Senate Bill 1437’s ambit. We do not find the plain meaning of
Senate Bill 1437 to be absurd, much less so absurd in its results
that we would be permitted to disregard the literal language used
in the statute.” (People v. Alaybue, supra, 51 Cal.App.5th at
p. 225.)
Taylor’s reliance on Civil Code section 3536 does not compel
a different result. That statute provides: “The greater contains
the less.” (Civ. Code, § 3536.) Taylor, however, fails to show that
the Civil Code statute applies to override the plain meaning of
section 1170.95, a statute in the Penal Code. Taylor’s reliance on
In re R.G. (2019) 35 Cal.App.5th 141 also is misplaced because
the R.G. court considered whether section 1170.95 applied to a
juvenile convicted of murder on a natural and probable
consequences theory. (R.G., at p. 144.) The R.G. court did not
consider whether section 1170.95 applied to attempted murder.
In sum, Taylor, who suffered two attempted murder convictions,
was not eligible for resentencing.2
2 We are aware that Senate Bill No. 775 (2021–2022
Reg. Sess.), if enacted, would amend section 1170.95 to permit
persons convicted of attempted murder under a theory of felony
murder or natural and probable consequences to obtain
resentencing relief.
8
DISPOSITION
Taylor’s petition for writ of habeas corpus is deemed a
petition for resentencing pursuant to Penal Code section 1170.95.
The order denying the petition is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
9