People v. Burns CA2/2 ( 2021 )

Filed 10/12/21 P. v. Burns CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B308077
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA348603)
v.
DONVAY LAMARR BURNS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Frederick N. Wapner, 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 Pitney, Assistant
Attorney General, Jonathan J. Kline and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Donvay LaMarr Burns (appellant) filed this appeal to
challenge the denial of his Penal Code section 1170.951 petition
for resentencing. He claims that the trial court erred when it
followed People v. Cervantes (2020) 44 Cal.App.5th 884, 886
(Cervantes) and ruled that he was ineligible for relief because the
statute applies to murder convictions but not voluntary
manslaughter convictions based on no contest pleas.
Alternatively, he contends that section 1170.95 violates equal
protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and
substantive due process. We affirm the trial court’s order
because the statute, by its clear terms, applies to murder, not
voluntary manslaughter, and it does not violate any
constitutional principles.
FACTS
Appellant was charged with multiple crimes, including
murder (§ 187) and assault with a firearm (§ 245, subd. (a)(2)), in
an amended information containing various enhancement
allegations.2 On May 3, 2012, appellant pleaded no contest to
voluntary manslaughter (§ 192, subd. (a)) and assault with a
firearm. He admitted gang allegations (§ 186.22, subd. (b)(1)(C))
and gun allegations (§ 12022.5, subd. (a)). The trial court
sentenced him to an aggregate determinate prison term of 25
years, and an additional concurrent prison term of three years.
On April 29, 2019, appellant filed his petition for
resentencing. In subsequent briefing, he argued that section
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 In the original petition, he was charged with committing
murder with a codefendant.
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1170.95 is ambiguous and should be construed as applying to all
homicides, including manslaughter. Also, he argued that it
violates equal protection to treat defendants convicted of
manslaughter more harshly than defendants convicted of murder
by making only the second group eligible for section 1170.95
relief.
At the prima facie review hearing under section 1170.95,
subdivision (c), appellant’s counsel argued that the Legislature
intended for a defendant to be eligible for relief if he was facing a
murder charge based on the natural and probable consequences
theory and then pleaded guilty to voluntary manslaughter in lieu
of trial. The trial court disagreed based on Cervantes and denied
the petition.
This appeal followed.
DISCUSSION
The statutory interpretation, equal protection and
substantive due process questions raised by appellant are subject
to de novo review. (In re Efstathiou (2011) 200 Cal.App.4th 725,
728; Ruiz v. Musclewood Property Investments (2018) 28
Cal.App.4th 15, 20–21.)
Section 1170.95, subdivision (a) provides that a “person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when,” inter alia, the “petitioner was convicted of first
degree murder or second degree murder following a trial or
accepted a plea in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder,” and the
“petitioner could not be convicted of first or second degree murder
3
because of changes to Section 188 or 189 made effective January
1, 2019.”3 We reject appellant’s contention that the reference to
petitioners who “accepted a plea in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder” is ambiguous and could encompass a petitioner who
pleaded no contest to voluntary manslaughter. By its opening
language, which is precise and plain, the statute applies to
petitioners who were convicted of felony murder or murder under
a natural and probable consequences theory. It does not apply to
defendants convicted of voluntary manslaughter, whether by a
jury or plea agreement. The language of the statute is not
susceptible to any other rational interpretation. (People v.
Hillhouse (2003) 109 Cal.App.4th 1612, 1618 [courts must follow
a statute’s plain meaning unless it would lead to an absurdity
that the Legislature could not have intended].)
Our analysis is consistent with case law. (People v. Turner
(2020) 45 Cal.App.5th 428, 438 [“the legislative history confirms
that 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 [section 1170.95 applies to murder, not voluntary
manslaughter]; Cervantes, supra, 44 Cal.App.5th at p. 886
[“section 1170.95 applies only to murder convictions”]; 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. Paige (2020) 51
Cal.App.5th 194, 201–204 (Paige); People v. Harris (2021) 60
3 Section 1170.95 was added by Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (SB 1437) (Stats. 208, ch. 1015, § 4).
4
Cal.App.5th 557, 567–569, review granted Apr. 21, 2021,
S267529 (Harris).)
We also conclude that section 1170.95 does not violate
equal protection under the federal and state Constitutions. Even
assuming defendants convicted of murder and voluntary
manslaughter are similarly situated, there is a rational
relationship between the disparity of the treatment and a
legitimate and conceivable governmental purpose. (Harris,
supra, 60 Cal.App.5th at pp. 569–570 [identifying the elements of
an equal protection analysis when there is no suspect class or
fundamental right involved].) The Legislature could have
concluded that punishment for voluntary manslaughter was
appropriate but that the punishment for murder based on the
natural and probable consequences doctrine could be excessive
and reform was needed. (Id. at p. 570, citing Sanchez, supra, 48
Cal.App.4th at p. 921.)
Once again, case law is in lockstep. (Cervantes, supra, 44
Cal.App.5th at p. 886 [excluding the defendant who pleaded no
contest to voluntary manslaughter from section 1170.95 “does not
violate his right to equal protection”]; Paige, supra, 51
Cal.App.5th at pp. 205–206 [rejecting the equal protection
challenge to section 1170.95 by a person convicted of voluntary
manslaughter]; Sanchez, supra, 48 Cal.App.5th at pp. 920–921
[section 1170.95 does not violate equal protection by excluding
defendants who pleaded guilty to a homicide offense in order to
avoid trial on a murder charge premised on natural and probable
consequences]; Harris, supra, 60 Cal.App.5th at p. 571 [“Because
a rational basis supports the Legislature’s decision to exclude
those convicted of . . . voluntary manslaughter from the ambit of
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section 1170.95, the legislative line-drawing between offenses in
section 1170.95 withstands” equal protection scrutiny].)
Finally, section 1170.95 does not violate substantive due
process, which only demands that there be 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. 888.) Here, the legislative goal when enacting
SB 1437 was to eliminate murder convictions in instances where
a defendant was not the actual killer, did not act with intent to
kill, and did not act with reckless indifference to human life while
committing a felony listed in section 189, subdivision (a). (See
People v. Solis (2020) 46 Cal.App.5th 762, 781–782 [explaining
the reach of SB 1437].) A second goal was to provide a method for
vacating such convictions and resentencing defendants. This
latter goal was rationally achieved by the section 1170.95 petition
procedure to vacate those murder convictions. (See Cervantes,
supra, at p. 888.)
All other issues are moot.
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DISPOSITION
The order denying appellant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
LUI
____________________________, J.
CHAVEZ
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