People v. Wright CA2/3 ( 2021 )

Filed 10/18/21 P. v. Wright CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B311217
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA044175)
v.
DALLAS RAY WRIGHT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Allen G. Weinberg, 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, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 2010, a jury convicted Dallas Ray Wright of two counts
of willful, deliberate, and premeditated attempted murder, with
gang and firearm enhancements. In 2021, after passage of
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437),
Wright petitioned for vacation of his attempted murder
convictions and resentencing pursuant to Penal Code section
1170.95.1 Finding Wright statutorily ineligible for relief, the trial
court denied the petition, and Wright appeals. We affirm the
order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder, Wright’s conviction, and original appeal
On November 25, 2008, Los Angeles County Sheriff’s
Detective Richard Cartmill and Sergeant Allen Harris were at a
Lancaster mobile home park investigating graffiti related to the
Mid Town Criminals (MTC) criminal street gang. They were in
an unmarked vehicle, and were wearing civilian clothing. Harris
pulled the car over on the wrong side of the road while Cartmill
pointed out graffiti on one of the trailers. Cartmill observed
Wright drive past in a Honda Civic, which slowed as it passed the
officers’ vehicle. Cartmill recognized Wright and knew him to be
an MTC member who did not live in the mobile home park.
The officers decided to stop Wright to question him about
the graffiti. They caught up with his car, displayed their badges,
and yelled at him to stop. However, he sped off and led them on a
1 All further undesignated statutory references are to the
Penal Code.
2 We derive the factual and procedural background in part
from our unpublished opinion in this case, of which we take
judicial notice on our own motion. (Evid. Code, §§ 451, 459.)
2
five-to-ten minute pursuit in a “big circle” around east Lancaster.
At one point, Wright appeared to be talking on a cellular
telephone.
The officers followed Wright back to an area near an
apartment complex next to the mobile home park. Wright’s
Honda slowed. Sixteen-year-old MTC gang member Marcos R.
emerged from behind some bushes. Wright pointed at Marcos,
then at the officers. Marcos immediately pulled out a gun and
fired five to six shots at the officers, some of which hit their
vehicle. Wright sped off and Marcos retreated into the mobile
home park. After a search, Marcos was discovered hiding in the
bathroom of a trailer home; a nine-millimeter semiautomatic
pistol was also found in the bathroom. Wright was apprehended
nearby.
After his arrest, Wright told detectives that he was driving
away from the mobile home park when he saw the officers’
vehicle. He believed they were rival gang members. Rival gang
members had previously shot at his car, and when he saw the
deputies’ vehicle speed up, he fled. He telephoned Marcos and
told him he was being chased. Marcos told him, “ ‘Don’t even
trip. I got you.’ ” Marcos suggested that Wright drive near some
apartments near the mobile home park. He did so. After Wright
passed Marcos, Wright heard gunshots. He was startled to learn
the occupants of the vehicle following him were officers. He
admitted knowing that Marcos had a gun, and expected Marcos
to react violently in some fashion when his pursuers drove past.
At Wright’s trial, the court instructed the jury on direct
aiding and abetting and the natural and probable consequences
doctrine. The jury convicted Wright of the willful, deliberate, and
premeditated attempted murders of Harris and Cartmill (§§ 664,
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187, subd. (a)), and two counts of assault with a semiautomatic
firearm (§ 245, subd. (b)), a lesser included offense of assault on a
peace officer with a semiautomatic firearm. As to each offense,
the jury also found true a section 186.22 gang enhancement, and
that a principal personally used and discharged a firearm
(§ 12022.53, subds. (b), (c), & former (e)(1)).3 The trial court
sentenced Wright to 40 years to life in prison.
A different panel of this Division affirmed Wright’s
judgment, with a minor sentence modification, in 2011. (People v.
Wright (Dec. 1, 2011, B226877) [nonpub. opn.].)
2. The section 1170.95 petition
On January 26, 2021, Wright filed a section 1170.95
petition for vacation of his attempted murder convictions and
resentencing. He averred that the jury’s verdicts were premised
on the natural and probable consequences doctrine, and “[b]ased
on [S]enate [B]ill 1437 (P.C. sec. 1170.95) my sentence is invalid
and unlawful.” He appended to his petition a portion of the jury
instructions in the case and the verdict forms. He also requested
the appointment of counsel.
On January 28, 2021, the trial court summarily denied the
petition. Wright was not present, and was not represented by
counsel. The court took judicial notice of the trial court records in
the case, and reasoned as follows. “The record reveals that the
defendant herein was convicted of two counts of attempted
murder, and two counts of assault with a firearm on a peace
officer. He was not charged with, nor was he convicted of,
murder, under any theory. Because the defendant was not
3 The jury did not render a finding on allegations that
Wright knew, or reasonably should have known, that the victims
were peace officers engaged in the performance of their duties.
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convicted of murder, Penal Code section 1170.95 does not apply to
him. [Citation.] The Petition is DENIED for failure to establish
a prima facie case. (Pen. Code sec. 1170.95(c).)” (Fn. omitted.)
The court acknowledged that the question of Senate Bill 1437’s
application to attempted murder was on review before the
California Supreme Court, but observed that no published
appellate case had ever found Senate Bill 1437 applied
retrospectively to cases that were final before the bill’s passage.
Wright timely appealed the trial court’s order.
DISCUSSION
Wright contends that the trial court erroneously concluded
section 1170.95 does not apply to attempted murder convictions,
and improperly denied the petition on that basis. We disagree.
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lewis
(2021) 11 Cal.5th 952, 957, 971.) To achieve these goals, Senate
Bill 1437 amended the felony-murder rule by adding section 189,
subdivision (e), which provides that a participant in the
perpetration of qualifying felonies is liable for felony murder only
under specified conditions. Senate Bill 1437 also amended the
natural and probable consequences doctrine by adding
subdivision (a)(3) to section 188, which states that “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.”
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Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he or she meets three conditions: he or she (1) must
have been charged with murder by means of a charging document
that allowed the prosecution to proceed under a felony murder or
natural and probable consequences theory; (2) must have been
“convicted of first 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”; and
(3) could no longer be convicted of first or second degree murder
due to changes to sections 188 and 189 effectuated by Senate Bill
1437. (§ 1170.95, subd. (a).)
To obtain section 1170.95 relief, the defendant must file a
petition with the sentencing court that contains, among other
things, a “ ‘declaration by the petitioner that he or she is eligible
for relief under [section 1170.95], based on all the requirements
of subdivision (a).’ ” (People v. Lewis, supra, 11 Cal.5th at p. 968.)
The defendant is entitled to the appointment of counsel, if
requested, upon the filing of a facially sufficient petition. (Id. at
p. 957.) After briefing by the parties, the court determines
whether the petitioner has made a prima facie case for
entitlement to relief. (Id. at pp. 957, 966, 968.) In making that
determination, the court may consider the record of conviction.
(Id. at pp. 957, 960, 970–971.) “The record of conviction will
necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Id. at
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p. 971.) If the record, including the court’s own documents,
“ ‘ “contain[s] facts refuting the allegations made in the
petition,” ’ ” then the court may determine that the petitioner has
not made a prima facie case. (Ibid.) If, on the other hand, the
trial court determines that the petitioner has made a prima facie
showing, it must issue an order to show cause and hold a hearing
to determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subd. (d)(1).) At that hearing, the prosecution has the burden to
prove the petitioner’s ineligibility beyond a reasonable doubt.
(§ 1170.95, subd. (d)(3).)
2. Wright is statutorily ineligible for relief as a matter of
law because he was not convicted of murder
Wright’s sole contention on appeal is that, contrary to the
trial court’s ruling, section 1170.95 applies to convictions for
attempted murder.4 He acknowledges that the appellate courts,
including this one, have uniformly rejected this view. However,
he contends that these cases were wrongly decided, and notes
that the question of whether Senate Bill 1437 applies to
attempted murder liability under the natural and probable
consequences doctrine is currently pending before our Supreme
4 Wright does not assert that the trial court erred by failing
to appoint counsel for him, and therefore we do not consider that
question except to note that the failure to appoint counsel under
these circumstances is state law error only, subject to the
harmless error test articulated in People v. Watson (1956) 46
Cal.2d 818. (People v. Lewis, supra, 11 Cal.5th at pp. 957–958.)
Because Wright is ineligible for section 1170.95 relief as a matter
of law, there is no reasonable probability that, had counsel been
appointed, the result would have been more favorable to him.
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Court. (People v. Lopez, S258175.) Therefore, he advises that he
raises the issue to preserve it for further appellate review.
All the appellate courts that have considered whether
section 1170.95 covers attempted murder convictions have held it
does not. People v. Lopez (2019) 38 Cal.App.5th 1087, review
granted Nov. 13, 2019, S258175, and this court in People v.
Munoz (2019) 39 Cal.App.5th 738, review granted Nov. 26, 2019,
S258234, considered whether Senate Bill 1437 applied
retroactively to invalidate attempted murder convictions that
were not yet final on appeal. Both cases concluded the law did
not extend to attempted murder, based on the plain language of
the statutory amendments and the legislative history. (See
Lopez, at pp. 1104–1105; Munoz, at pp. 753–754, 757, 763–764.)
Lopez found the language of section 1170.95 underscored the
Legislature’s obvious intent to exclude attempted murder from
Senate Bill 1437’s ambit: “Section 1170.95, subdivision (a),
authorizes only those individuals ‘convicted of felony murder or
murder under a natural and probable consequences theory’ to
petition for relief” and thus “exclud[es] any relief for individuals
convicted of attempted murder[.]” (Lopez, at pp. 1104–1105.)
Thereafter, the Fifth Appellate District disagreed with
Lopez and Munoz and concluded that Senate Bill 1437 abrogated
the continuing application of the natural and probable
consequences doctrine as it applied to both murder and
attempted murder, and defendants were entitled to relief on
direct appeal. (People v. Medrano (2019) 42 Cal.App.5th 1001,
1007–1008, review granted March 11, 2020, S259948.)
Nonetheless, even Medrano concluded that section 1170.95 does
not encompass attempted murder: “We agree with the reasoning
of Lopez and Munoz that the relief provided in section 1170.95 is
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limited to certain murder convictions and excludes all other
convictions, including a conviction for attempted murder.”
(Medrano, at p. 1018; People v. Larios (2019) 42 Cal.App.5th 956,
961, 969, review granted Feb. 26, 2020, S259983 [plain language
of section 1170.95 “provides no relief for the crime of attempted
murder” and legislative history supports this conclusion].)
Other courts considering the question have likewise
concluded that Senate Bill 1437 or section 1170.95 do not extend
to attempted murder. (People v. Harris (2021) 60 Cal.App.5th
557, 563, 569, review granted April 21, 2021, S267529 [“section
1170.95 does not provide relief for those convicted of . . .
attempted murder”]; People v. Dennis (2020) 47 Cal.App.5th 838,
841, review granted July 29, 2020, S262184 [Senate Bill 1437
“reaches the crime of murder but has no application to attempted
murder”]; People v. Love (2020) 55 Cal.App.5th 273, 279, 292,
review granted Dec. 16, 2020, S265445 [“Senate Bill 1437 does
not eliminate the natural and probable consequences theory for
attempted murder on any basis—either prospectively or
retroactively”; section 1170.95 applies only to persons seeking to
vacate a conviction for murder]; People v. Alaybue (2020) 51
Cal.App.5th 207, 222 [“Senate Bill 1437 does not apply to
attempted murder”]; cf. People v. McClure (2021) 67 Cal.App.5th
1054, 1069 [section 1170.95 inapplicable to voluntary
manslaughter; statute “limits its resentencing relief to
individuals convicted of murder” and rule of lenity inapplicable
because statute’s plain language is unambiguous]; People v.
Flores (2020) 44 Cal.App.5th 985, 993 [section 1170.95 is
inapplicable to voluntary manslaughter convictions; “[t]hrough
its repeated and exclusive references to murder, the plain
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language of section 1170.95 limits relief only to qualifying
persons who were convicted of murder”].)
Wright makes several arguments aimed at showing these
authorities were wrongly decided, as follows. Excluding
attempted murder from section 1170.95 would lead to absurd
results. The “notion that one can be held criminally liable for
another’s homicidal conduct only if the intended victim survived
but not if the victim died is incoherent, legally impermissible, and
not what the amended Penal Code provides.” Remedial benefits
should extend to lesser included offenses, and attempted murder
is a lesser included offense of murder. Remedial statutes should
be liberally construed. Cases construing Proposition 47 have held
that its provisions encompass crimes that are not specifically
enumerated; by analogy, the same should be true in regard to
section 1170.95. And, excluding attempted murder from section
1170.95’s ambit would violate equal protection principles.
We, or the other authorities cited ante, have already
considered the bulk of these arguments at length and have
rejected them. We need not repeat those analyses here. Pending
further guidance from our Supreme Court, nothing in Wright’s
arguments convinces us that our or the aforementioned courts’
analyses of the question were incorrect. Accordingly, we discern
no reversible error in the trial court’s ruling, and affirm the
order.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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