People v. Cuellar CA2/3 ( 2020 )

Filed 11/6/20 P. v. Cuellar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302805
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA044882
v.
LEANDRO CUELLAR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael J. Shultz, Judge. Affirmed.
Jonathan E. Demson, 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, Assistant
Attorney General, Idan Ivri and Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2017, petitioner Leandro Cuellar pled no contest to
voluntary manslaughter. In 2019, after the enactment of Senate
Bill No. 1437 (S.B. 1437) (Stats. 2018, ch. 1015), Cuellar
petitioned for resentencing under Penal Code section 1170.95.1
The trial court summarily denied the petition on the ground that
Cuellar was ineligible for relief because he was not convicted of
murder. On appeal, Cuellar argues the court erred in both its
legal conclusion and by not appointing counsel to represent him.
We affirm.
BACKGROUND
By information filed June 28, 2017, Cuellar was charged
with one count of murder (§ 187, subd. (a)) in which a principal
was armed with a firearm (§ 12022, subd. (a)(1)). The
prosecution’s theory was Cuellar aided and abetted the murder
through his presence in a car that another man exited to commit
a shooting. In lieu of trial, Cuellar pled no contest to voluntary
manslaughter (§ 192, subd. (a)) and was sentenced to 11 years in
prison.
In October 2019, Cuellar filed a petition for resentencing
under section 1170.95. Cuellar asked the court to vacate his
manslaughter conviction and resentence him under section
1170.95. He contended that the information filed against him
allowed the prosecution to try him under a theory of felony
murder or murder under the natural-and-probable-consequences
doctrine, that he accepted a plea offer in lieu of a trial, and that
he could not now be convicted of murder under the recent
1 All undesignated statutory references are to the Penal Code.
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changes to the Penal Code contained in S.B. 1437, of which
section 1170.95 was a part. He asked the court to appoint counsel
to represent him.
The court summarily denied the petition on the ground that
Cuellar was not eligible for relief as a matter of law because he
“was not convicted of murder. On or about September 7, 2017,
[Cuellar] pleaded no contest or guilty to voluntary manslaughter
(Penal Code section 192(a)).”
Cuellar filed a timely notice of appeal.
DISCUSSION
Cuellar argues that the court erred by summarily denying
his petition without appointing counsel to represent him and by
summarily denying his petition because he was convicted of
manslaughter rather than murder. We disagree.
1. S.B. 1437
S.B. 1437, which took effect on January 1, 2019, changed
the law of murder to ensure a “person’s culpability for murder [is]
premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
First, S.B. 1437 limited accomplice liability for murder.
Under prior California law, every accomplice to an enumerated
felony could be convicted of first degree murder if a death
occurred during the commission of that felony—regardless of
whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal. 3d 441, 462–472.) Similarly, “a defendant
who aided and abetted a crime, the natural and probable
consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder”—regardless of
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whether he acted with malice aforethought. (In re R.G. (2019) 35
Cal. App. 5th 141, 144.)
Now, however, a person may be convicted of murder only if:
(1) he was the actual killer; or (2) with the intent to kill, he aided
and abetted the actual killer’s commission of murder; or (3) he
acted as a “major participant” in a felony listed in section 189 and
acted with “reckless indifference to human life.” (§ 189, subd. (e),
as amended by Stats. 2018, ch. 1015, § 3; § 188, subd. (a)(3), as
amended by Stats. 2018, ch. 1015, § 2.)
Second, S.B. 1437 abolished second degree felony murder.
(Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).) Thus,
the felony murder doctrine now applies only to those felonies
listed in section 189, subdivision (a), and to accomplices who meet
the requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories the opportunity to petition for resentencing
under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.)
Section 1170.95, subdivision (a), describes who may
petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c) describes the
process the court uses to determine whether the petitioner is
entitled to an evidentiary hearing.2 Finally, subdivisions (d)–(g)
2 Section 1170.95, subdivision (c), provides in full: “The court shall
review the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve
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describe the procedures for holding an evidentiary hearing, the
type of evidence that may be admitted, the burden of proof, and
the requirements for resentencing an eligible petitioner.
2. Cuellar’s petition established that he was not eligible
for relief.
Our state Supreme Court has granted review to determine
what must occur—and in what order—after a trial court receives
a complying petition but before it issues an order to show cause
under section 1170.95, subdivision (c). (See People v. Lewis (2020)
43 Cal. App. 5th 1128, review granted Mar. 18, 2020, S260598.) So
far, most appellate courts have held that subdivision (c) requires
the trial courts to undertake two prima facie reviews before
issuing an order to show cause—first, under the first sentence of
the provision, “that the petitioner falls within the provisions of
this section,” and second, under the last sentence of the provision,
that the petitioner “is entitled to relief”—and that it need not
appoint counsel and the prosecution need not file a response until
after the first prima facie review is complete. (§ 1170.95,
subd. (c); see, e.g., People v. Verdugo (2020) 44 Cal. App. 5th 320,
323, 329, review granted Mar. 18, 2020, S260493; People v.
Drayton (2020) 47 Cal. App. 5th 965, 975–976.)
Another view is that the first sentence of section 1170.95,
subdivision (c), states the rule—the “ ‘ “court shall review the
petition and determine if the petitioner has made a prima facie
a response within 60 days of service of the petition and the petitioner
may file and serve a reply within 30 days after the prosecutor’s
response is served. These deadlines shall be extended for good cause. If
the petitioner makes a prima facie showing that he or she is entitled to
relief, the court shall issue an order to show cause.”
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showing that [he or she] falls within the provisions of this
section” ’ ”—and “ ‘[t]he rest of the subdivision establishes the
process for complying with that rule: Appoint counsel, if
requested. Wait for the prosecutor’s required response and the
petitioner’s optional reply. If the petitioner makes a prima facie
showing, issue an order to show cause.’ ” (People v. Cooper (2020)
54 Cal. App. 5th 106, 115, quoting People v. Tarkington (2020) 49
Cal. App. 5th 892, 911–927, review granted Aug. 12, 2020,
S263219 (dis. opn. of Lavin, J.).)
Regardless of which view is correct, here, the face of
Cuellar’s petition established his ineligibility. (See People v.
Cooper, supra, 54 Cal.App.5th at p. 123.) Under the plain
language of section 1170.95, subdivision (a), the statute only
applies to murder convictions. And in his resentencing petition,
Cuellar stated that he pled guilty to voluntary manslaughter—a
point he reiterates on appeal. Because defendants convicted of
manslaughter are ineligible for relief as a matter of law, the court
did not err in summarily denying his petition. (See People v.
Paige (2020) 51 Cal. App. 5th 194, 200–204.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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