People v. Vasquez CA2/5 ( 2020 )

Filed 9/18/20 P. v. Vasquez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B300872
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. GA041420)
v.
STEVEN A. VASQUEZ,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Affirmed.
Janet Uson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Daniel C. Chang and
Nancy Lii Lander, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________
Defendant and appellant Steven A. Vasquez appeals
from the denial of his petition for resentencing pursuant to
Penal Code section 1170.951 and Senate Bill No. 1437
(Senate Bill 1437). We affirm the trial court’s order denying
Vasquez’s petition for resentencing.
PROCEDURAL HISTORY2
In 2000, Vasquez was convicted of deliberate and
premeditated attempted murder and assault by means likely
to produce great bodily injury. (§§ 187, subd. (a), 245, subd.
(a)(1), 664, 12022, subd. (a)(1).) Vasquez admitted a prior
serious felony conviction. (§§ 667, subd. (a), 1170.12.) He
was sentenced to state prison for life with a minimum
eligible parole date of 14 years, consecutive to 8 years.
Vasquez appealed. We modified the judgment with respect
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The summary of the underlying proceedings is taken
from our prior unpublished opinion in People v. Hernandez
(Oct. 11, 2001, B142104, B147680, GA041420). We do not
include a recitation of the underlying facts of the offenses as
they are not necessary to our resolution of the issues.
2
to presentence custody credit but otherwise affirmed the
trial court’s judgment.
On September 30, 2018, the Governor signed Senate
Bill 1437. “The legislation, which became effective on
January 1, 2019, addresses certain aspects of California law
regarding felony murder and the natural and probable
consequences doctrine by amending Penal Code sections 188
and 189, as well as by adding Penal Code section 1170.95,
which provides a procedure by which those convicted of
murder can seek retroactive relief if the changes in law
would affect their previously sustained convictions.” (People
v. Martinez (2019) 31 Cal. App. 5th 719, 722.)
Vasquez petitioned to be resentenced under section
1170.95, using a standard form. The form contained a check
list of requirements for eligibility under section 1170.95,
subdivision (a). Specifically, the petitioner was required to
certify that: “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. [¶] 2a. At trial, [the petitioner] was convicted of
1st or 2nd degree murder . . . . [¶] OR [¶] 2b. [The
petitioner] pled guilty or no contest to 1st or 2nd degree
murder in lieu of going to trial . . . . [¶] 3. [The petitioner]
could not now be convicted of 1st or 2nd degree murder
because of changes made to §§ 188 and 189, effective
January 1, 2019.” Vasquez left these boxes unchecked. He
did not claim that he had been convicted of murder under
3
either a felony murder or natural and probable consequences
theory of liability.3 Vasquez requested that counsel be
appointed to him.
On July 17, 2019, outside the presence of the parties
and without appointing counsel, the trial court summarily
denied the petition on the basis that Vasquez was ineligible
for relief as a matter of law because he was not convicted of
murder.
DISCUSSION
Vasquez contends that the trial court erred by
summarily denying his petition for resentencing under
section 1170.95 without first appointing counsel and
permitting briefing, in violation of his right to due process
and his right to be represented by counsel at a critical stage
in a criminal proceeding. Vasquez further contends that
section 1170.95 applies to defendants, like himself, who are
convicted of attempted murder.
We conclude that the procedure set forth in section
1170.95 permits a trial court to deny a petition for
resentencing without first appointing counsel or considering
briefing by the parties where the record of conviction
establishes that the petitioner is ineligible for relief as a
3 Vasquez indicated only that (1) he did not aid and
abet the actual killer with intent to kill, and was not a major
participant in the underlying felony and (2) he did not act
with reckless indifference to human life.
4
matter of law. We further conclude that section 1170.95
does not apply to attempted murder. We therefore affirm
the trial court’s order.
Entitlement to Counsel and Briefing
Vasquez first contends that the order denying his
petition must be reversed because the trial court summarily
denied the petition without appointing counsel or giving the
parties the opportunity to file briefing, in violation of his
constitutional rights to counsel and due process.
The People respond that Vasquez is not entitled to
counsel or briefing, because he was convicted of attempted
murder and is therefore precluded from relief as a matter of
law. The People rely on the holdings in People v. Verdugo
(2020) 44 Cal. App. 5th 320, review granted March 18, 2020,
S260493 (Verdugo); People v. Cornelius (2020) 44
Cal. App. 5th 54, review granted March 18, 2020, S260410
(Cornelius); and People v. Lewis (2020) 43 Cal. App. 5th 1128,
review granted March 18, 2020, S260598 (Lewis); in support
of their argument that the court may summarily deny a
petition without appointing counsel or permitting briefing if
the court finds that the petitioner is ineligible for
resentencing as a matter of law.
In his reply, Vasquez argues only that the People rely
solely on cases in which the Supreme Court has granted
review that have no binding or precedential effect. While
this is true, Verdugo, Cornelius, and Lewis may still be cited
5
for their potential persuasive value. (Cal. Rules of Court,
rule 8.1115(e)(1).) Indeed, we have found these cases
persuasive, and have expressly agreed with the result in
Verdugo in our prior opinions. (People v. Torres (2020) 46
Cal. App. 5th 1168, 1177, review granted Jun. 24, 2020,
S262011; People v. Smith (2020) 49 Cal. App. 5th 85, 92,
review granted Jul. 22, 2020, S262835.) We see no reason to
deviate now.4
The federal and state constitutions do not compel a
different conclusion in a collateral proceeding such as this.
(See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551, 556–
557 [no federal constitutional or due process right to
appointed counsel in state postconviction proceedings];
People v. Shipman (1965) 62 Cal. 2d 226, 231–232; cf. In re
Barnett (2003) 31 Cal. 4th 466, 474–475 [no constitutional
right to counsel under California constitution for seeking
collateral relief from a judgment of conviction via state
habeas corpus proceedings].)
Vasquez is only entitled to appointment of counsel and
briefing if ineligibility cannot be established as a matter of
law, or, more specifically, if section 1170.95 applies to
attempted murder convictions.
4 We recognize that at least one court has reached a
contrary conclusion. (See People v. Cooper (2020)
___Cal.App.5th ___ [2020 WL 5175210, *4].)
6
Attempted Murder Convictions
Citing to People v. Medrano (2019) 42 Cal. App. 5th
1001, review granted March 11, 2020, S259948 (Medrano);
People v. Larios (2019) 42 Cal. App. 5th 956, review granted
February 26, 2020, S259983 (Larios); and People v. Sanchez
(2020) 46 Cal. App. 5th 637, review granted June 10, 2020,
S261768 (Sanchez), Vasquez next argues that section Senate
Bill 1437 applies to attempted murder. His reliance is
misplaced. While Medrano, Larios, and Sanchez all conclude
that Senate Bill 1437 applies to attempted murder on direct
appeal, Medrano and Larios have also held that defendants
convicted of attempted murder are not eligible for
resentencing under section 1170.95. (Medrano, supra, at
pp. 1015–1016; Larios, supra, at pp. 968–970.) The court in
Sanchez did not address the issue. Several other courts have
come to the conclusion that section 1170.95 does not apply to
attempted murder. (See, e.g., People v. Munoz (2019) 39
Cal. App. 5th 738 (Munoz), review granted Nov. 26, 2019,
S258234; People v. Lopez (2019) 38 Cal. App. 5th 1087 (Lopez),
review granted Nov. 13, 2019, S258175; People v. Dennis
(2020) 47 Cal. App. 5th 838, review granted July 29, 2020.)
No court to date has held that section 1170.95 provides relief
for defendants convicted of attempted murder.5
5 The Supreme Court has granted review in Lopez,
Munoz, Medrano, and Larios. “The issues to be briefed and
argued are limited to the following: (1) Does Senate Bill No.
1437 (Stats. 2018, ch. 1015) apply to attempted murder
7
We agree with the foregoing cases, which have held
that the plain language of section 1170.95 applies only to
murder convictions by trial or by plea: “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 . . . . ” (§ 1170.95, subd. (a); see People v.
Cervantes (2020) 44 Cal. App. 5th 884, 887; Medrano, supra,
42 Cal.App.5th at pp. 1016–1018; Larios, supra, 42
Cal.App.5th at pp. 969–970; Munoz, supra, 39 Cal.App.5th
at p. 754; Lopez, supra, 38 Cal.App.5th at pp. 1104–1105.)
liability under the natural and probable consequences
doctrine? (2) In order to convict an aider and abettor of
attempted willful, deliberate and premeditated murder
under the natural and probable consequences doctrine, must
a premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words,
should People v. Favor (2012) 54 Cal. 4th 868, be
reconsidered in light of Alleyne v. United States (2013) 570
U.S. 99, and People v. Chiu (2014) 59 Cal. 4th 155?”
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DISPOSITION
The trial court’s order denying Vasquez’s petition for
resentencing under section 1170.95 is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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