People v. Gallardo CA2/7 ( 2021 )

Filed 7/20/21 P. v. Gallardo CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308954
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA091171)
v.
CARLOS GALLARDO,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Lee W. Tsao, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri and Michael Katz,
Deputy Attorneys General for Plaintiff and Respondent.
_________________
Carlos Gallardo appeals from the postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.951 as to his prior convictions of attempted
murder and voluntary manslaughter. Gallardo contends the
superior court erred in summarily denying his petition because
section 1170.95 applies to both offenses. He also argues the
court’s denial of his petition violated his right to equal protection
under the federal and California Constitutions (U.S. Const., 14th
Amend.; Cal. Const., art. I, § 7) and his right to substantive due
process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Convictions and Petition for Resentencing
On February 19, 2009 Gallardo pleaded guilty to attempted
murder (§§ 187, subd. (a), 664) and voluntary manslaughter
(§ 192, subd. (a)), and he admitted the gang enhancement
allegations (§186.22, subd. (b)(1)(C)) were true. The trial court
sentenced him to an aggregate state prison term of 26 years eight
months.
On June 5, 2019 Gallardo, representing himself, filed a
form petition for resentencing and supporting declaration seeking
to vacate his attempted murder and voluntary manslaughter
convictions and be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder. On
July 19 the trial court appointed counsel for Gallardo.2 The
1 All statutory references are to the Penal Code.
2 Judge Dewey Lawes Falcone presided over the plea and
sentencing. Because Judge Falcone is deceased, Judge Joseph R.
2
People filed an opposition, and counsel for Gallardo filed a reply.
The trial court summarily denied the petition on the basis
Gallardo was ineligible for resentencing as a matter of law
because he was not convicted of murder.
Gallardo timely appealed.
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill
1437), effective January 1, 2019, amended the felony murder rule
and eliminated the natural and probable consequences doctrine
as it relates to murder through the amendment of sections 188
and 189. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843,
847-848.) Under section 1170.95, an individual convicted of
felony murder or murder under a natural and probable
consequences theory may petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not have been convicted of murder under Senate Bill
1437’s changes to sections 188 and 189. (Sen. Bill 1437 (2017-
2018 Reg. Sess.) § 4; see Gentile, at p. 847.)
If the section 1170.95 petition contains all the required
information, section 1170.95, subdivision (c), prescribes a
procedure for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts. As we explained in People
Porras initially presided over the matter. The matter was then
transferred to Judge Tsao, who decided Gallardo’s petition for
resentencing.
3
v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted
March 18, 2020, S260493, section 1170.95, subdivision (c),
provides for the court’s review to proceed in two steps: ‘“one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Accord, People v. DeHuff (2021) 63 Cal.App.5th 428, 436-
437; People v. Rodriguez (2020) 58 Cal.App.5th 227, 237, review
granted Mar. 10, 2021, S266652; People v. Perez (2020)
54 Cal.App.5th 896, 903, review granted Dec. 9, 2020, S265254;
but see People v. Cooper (2020) 54 Cal.App.5th 106, 123, review
granted Nov. 10, 2020, S264684 [once the trial court determines
the petition contains the required information, the court performs
a single prima facie review, and if the defendant makes a prima
facie showing of entitlement to relief, the court issues an order to
show cause].)3
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under section 1170.95,
subdivision (c), “[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
3 The Supreme Court in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598,
granted review on the following questions: “(1) May superior
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]”
4
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. . . . However, this
authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, subd. (d) is
limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion . . . .” (People v.
Drayton (2020) 47 Cal.App.5th 965, 980; accord, People v. Perez,
supra, 54 Cal.App.5th at pp. 903-904, review granted.)
B. The Trial Court Did Not Err in Denying Gallardo’s Petition
for Resentencing
1. Section 1170.95 does not apply to convictions of
attempted murder, nor does its inapplicability to
attempted murder convictions violate equal protection
principles
Gallardo contends that the Legislature intended Senate
Bill 1437 and its resentencing provision in section 1170.95 to
apply to convictions of attempted murder. However, we
concluded in People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-
1105 (Lopez), review granted November 13, 2019, S258175, that
Senate Bill No. 1437 does do not provide relief for defendants
convicted of attempted murder. (Accord, People v. Love (2020) 55
Cal.App.5th 273, 279, review granted Dec. 16, 2020, S265445.)
Other courts have disagreed with our conclusion in Lopez that
Senate Bill 1437 did not eliminate the natural and probable
consequences doctrine as a basis for accomplice liability for
attempted murder. (See, e.g., People v. Larios (2019)
42 Cal.App.5th 956, 964-968, review granted Feb. 26, 2020,
5
S259983); People v. Medrano (2019) 42 Cal.App.5th 1001, 1012-
1016, review granted March 11, 2020, S259948.) However, in
light of the plain language of section 1170.95, by its terms
applying to “[a] person convicted of felony murder or murder
under a natural and probable consequences theory” (§ 1170.95,
subd. (a)), the appellate courts have consistently held that section
1170.95 does not provide relief to a petitioner seeking relief from
a final conviction of attempted murder. (See, e.g., People v.
Harris (2021) 60 Cal.App.5th 557, 566, review granted Apr. 21,
2021, S267529 (Harris) [“We join the other appellate courts that
have concluded that relief under section 1170.95 is not available
to those convicted of attempted murder.”]; Love, at p. 292 [“Thus,
even if Senate Bill 1437 reached attempted murder convictions
on a prospective basis, it does not provide for retroactive relief for
such convictions whether final or not.”]; Larios, at p. 969 [“No
language in section 1170.95 references relief to persons convicted
of attempted murder.”].)
Gallardo contends in the alternative that any exclusion of
attempted murder from the relief provided by section 1170.95
would violate equal protection principles. “The concept of equal
treatment under the laws means that persons similarly situated
regarding the legitimate purpose of the law should receive like
treatment. [Citation.] ‘“The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” [Citation.]
This initial inquiry is not whether persons are similarly situated
for all purposes, but “whether they are similarly situated for
purposes of the law challenged.”’” (People v. Morales (2016) 63
Cal.4th 399, 408; accord, Cooley v. Superior Court (2002) 29
Cal.4th 228, 253; Lopez, supra, 38 Cal.App.5th at p. 1111, review
6
granted.) We rejected an equal protection challenge to Senate
Bill 1437 with respect to attempted murder in Lopez, at pages
1109 to 1110, concluding persons convicted of murder and
attempted murder are not similarly situated for purposes of
Senate Bill 1437 because they are charged with separate crimes
with different penal consequences. We also found there was a
rational basis for excluding offenders in attempted murder cases
from Senate Bill 1437, including the need to address the greater
gap in culpability inherent in a murder conviction based on
aiding and abetting liability. (Id. at pp. 1111-1112; accord,
Harris, supra, 60 Cal.App.5th at p. 570, review granted
[“Assuming for the sake of argument that all these offenders are
similarly situated for purposes of section 1170.95,
construing section 1170.95 to apply only to murder convictions
does not violate equal protection, because we can conceive of at
least one rational reason for the Legislature to limit relief
under section 1170.95 to those convicted of murder.”]; Love,
supra, 55 Cal.App.5th at p. 288, review granted [“Even if we
assume for the sake of argument that persons convicted of
murder and persons convicted of attempted murder are similarly
situated [citation], construing Senate Bill 1437 to reach murder
but not attempted murder does not violate equal protection.”].)
Gallardo has presented no persuasive reason for us to depart
from our decision in Lopez.
7
2. Section 1170.95 does not apply to convictions of
voluntary manslaughter, nor does its inapplicability
to voluntary manslaughter convictions violate equal
protection principles
Gallardo argues section 1170.95 provides relief for his
conviction of voluntary manslaughter because he accepted a plea
offer in lieu of a trial at which he could have been convicted of
felony murder or murder based on the natural and probable
consequences doctrine. Gallardo’s contention is contrary to the
plain language of the statute and its legislative history.
“Our primary task ‘in interpreting a statute is to determine
the Legislature’s intent, giving effect to the law’s purpose.
[Citation.] We consider first the words of a statute, as the most
reliable indicator of legislative intent.’” (California Building
Industry Assn. v. State Water Resources Control Bd. (2018)
4 Cal.5th 1032, 1041; accord, In re A.N. (2020) 9 Cal.5th 343, 351-
352.) “‘“We interpret relevant terms in light of their ordinary
meaning, while also taking account of any related provisions and
the overall structure of the statutory scheme to determine what
interpretation best advances the Legislature’s underlying
purpose.’” [Citation.] ‘If we find the statutory language
ambiguous or subject to more than one interpretation, we may
look to extrinsic aids, including legislative history or purpose to
inform our views.’” (In re A.N., at pp. 351-352; accord, ZB, N.A. v.
Superior Court (2019) 8 Cal.5th 175, 189 [“We consider the
provisions’ language in its ‘broader statutory context’ and, where
possible, harmonize that language with related provisions by
interpreting them in a consistent fashion. [Citation.] If an
ambiguity remains after this preliminary textual analysis, we
8
may consider extrinsic sources such as legislative history and
contemporaneous administrative construction.”].)
Nowhere in section 1170.95 is the crime of voluntary
manslaughter mentioned, and, as discussed, subdivision (a)
provides a remedy only for “[a] person convicted of felony murder
or murder under a natural and probable consequences theory.”
As the Court of Appeal observed in People v. Cervantes (2020)
44 Cal.App.5th 884, 887 (Cervantes), in concluding
section 1170.95 does not provide relief for convictions of
voluntary manslaughter where a defendant charged with murder
enters a no contest plea to voluntary manslaughter, “[H]ere the
language of the statute unequivocally applies to murder
convictions. There is no reference to the crime of voluntary
manslaughter. To be eligible to file a petition under section
1170.95, a defendant must have a first or second degree murder
conviction. The plain language of the statute is explicit; its scope
is limited to murder convictions.” (Accord, Harris, supra, 60
Cal.App.5th at p. 566, review granted [“Because Harris was
convicted of . . . voluntary manslaughter and not murder, he
consequently is not eligible for relief under section 1170.95.”];
People v. Paige (2020) 51 Cal.App.5th 194, 204 (Paige) [“[W]e
agree with our colleagues in the Second, Fourth and Fifth
Districts holding that defendants charged with felony murder but
convicted of voluntary manslaughter pursuant to a plea
agreement are not eligible for relief under section 1170.95.”];
People v. Sanchez (2020) 48 Cal.App.5th 914, 918 (Sanchez) [“By
its plain language, section 1170.95 thus makes resentencing
relief available only to qualifying persons convicted of murder.”];
People v. Turner (2020) 45 Cal.App.5th 428, 435-436 (Turner)
[“Relying on the clear language of the statute, courts including
9
ours have concluded that section 1170.95 is unambiguous and
does not provide relief to persons convicted of manslaughter.”];
People v. Flores (2020) 44 Cal.App.5th 985, 993 [“Section 1170.95
does not mention, and thus does not provide relief to, persons
convicted of manslaughter, which, ‘while a lesser included offense
of murder, is clearly a separate offense . . . .’”].)
Gallardo’s argument that the reference in section 1170.95,
subdivision (a)(2), to the defendant’s acceptance of “a plea offer in
lieu of trial at which the petitioner could be convicted of first
degree or second degree murder” means a defendant is eligible for
relief if he or she accepted a plea offer for voluntary
manslaughter in lieu of murder, is contrary to the plain language
of section 1170.95, subdivision (a). As the Court of Appeal in
Paige, supra, 51 Cal.App.5th at page 202 explained, “[R]ead in
the context of the statute as a whole, considering both its
structure and its language, subdivision (a)(2) cannot reasonably
be understood to encompass persons who accept a plea offer in
lieu of trial for a crime other than murder. The first paragraph
of section 1170.95, subdivision (a) sets forth the basic ‘who’ and
‘what’ of the statute—who may seek relief and what they may
seek. The ‘who’ is ‘[a] person convicted of felony murder or
murder under a natural and probable consequences theory’ and
the ‘what’ is the opportunity to ‘file a petition with the court . . .
to have the petitioner’s murder conviction vacated.’ (Italics
added.) The provision on which [defendant] relies, section
1170.95, subdivision (a)(2), is one of three conditions—all of
which must also apply before the person convicted of felony
murder or natural and probable consequences murder may seek
relief under section 1170.95. Given the structure of the statute
and the language in the first paragraph of section 1170.95,
10
subdivision (a), the reference to a person who ‘accepted a plea
offer’ in subdivision (a)(2) must necessarily mean a person who
accepted a plea to, and was convicted of, first or second degree
murder in lieu of a trial at which he could have been convicted of
either of those charges.” (Accord, Sanchez, supra, 48 Cal.App.5th
at pp. 918-919; Turner, supra, 45 Cal.App.5th at p. 438.)
Further, contrary to Gallardo’s argument, section 1170.95,
subdivision (a)(2)’s reference to a defendant’s acceptance of a plea
is not rendered superfluous under our construction of section
1170.95 to apply only to murder convictions. “Specifying that
section 1170.95 applies to murder convictions both by trial and by
guilty plea clarifies that it does not matter how the murder
conviction was obtained for section 1170.95 to apply. Regardless
of whether that clarification was necessary, ‘“the Legislature may
choose to state all applicable legal principles in a statute rather
than leave some to even a predictable judicial decision.”’
[Citation.] Express statutory language defining the class of
defendants to whom section 1170.95 applies is not surplusage.”
(Sanchez, supra, 48 Cal.App.5th at p. 919.) Had the legislature
intended to include voluntary manslaughter within the scope of
section 1170.95, it could have chosen to do so; we do not add
language to an unambiguous statute.
The legislative history of section 1170.95 supports this
construction of the statute. “First, the Legislature understood
the distinction between murder and manslaughter and focused
its efforts on revising accomplice liability under a felony murder
or natural and probable consequences theory. Second, nearly
every committee report and analyses made note of the life
sentences imposed for defendants convicted of first- or second-
degree murder. One report based cost estimates on the number
11
of inmates serving terms for first or second-degree murder.
Finally, the petitioning procedure was restricted by amendment
to apply to persons convicted of felony murder or murder under a
natural and probable consequences theory. Viewed together, 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.” (Turner, supra,
45 Cal.App.5th at p. 438; accord, Paige, supra, 51 Cal.App.5th at
p. 203.)
The fact a defendant who is convicted of murder may be
eligible to obtain relief under section 1170.95, but a defendant
who pleaded guilty of voluntary manslaughter instead of facing a
murder charge cannot, does not lead to an absurd result, as
argued by Gallardo. We agree with the analysis of the court in
Turner, supra, 45 Cal.App.5th at page 439, “The punishment for
manslaughter is already less than that imposed for first- or
second-degree murder, and the determinate sentencing ranges of
3, 6, or 11 years for voluntary manslaughter and 2, 3, or 4 years
for involuntary manslaughter permit a sentencing judge to make
punishment commensurate with a defendant’s culpability based
on aggravating and mitigating factors. [Citations.] Providing
relief solely to defendants convicted of murder under a felony-
murder or natural-and-probable consequences theory does not
conflict with the Legislature’s stated objective to make ‘statutory
changes to more equitably sentence offenders in accordance with
their involvement in homicides.’” (Accord, Paige, supra,
51 Cal.App.5th at p. 204.)
Gallardo’s reliance on In re R.G. (2019) 35 Cal.App.5th 141and People v. Page (2017) 3 Cal.5th 1175 (Page) is misplaced. In
12
In re R.G., the same court that decided Cervantes concluded
section 1170.95’s petitioning procedures apply to juvenile
offenders, even though Senate Bill 1437 uses terminology used in
adult criminal proceedings and the statute does not reference
juvenile offenders. (In re R.G., at pp. 144, 146-147.) However,
the court’s holding was based on its analysis of juvenile law,
including that Senate Bill 1437’s amendment to section 188 to
limit reliance on the natural and probable consequences doctrine
applies to juvenile offenders pursuant to Welfare and Institutions
Code section 602. (In re R.G., at pp. 148-151; see People v. Munoz
(2019) 39 Cal.App.5th 738, 756, fn. 19 [The holding in In re R.G.
“was premised on several considerations specific to the juvenile
law, including, inter alia, that provisions of the Welfare and
Institutions Code specifically contemplate incorporating
substantive criminal laws into juvenile proceedings, and
excluding juveniles from . . . section 1170.95’s reach could run
afoul of the requirement that a juvenile may not be held in
physical confinement for a period exceeding that which could be
imposed upon an adult convicted of the same offense”].)
In Page, supra, 3 Cal.5th at page 1180 the Supreme Court
held a defendant who is convicted of unlawfully driving or taking
a vehicle (§ 10851) may be eligible for resentencing under
Proposition 47, the Safe Neighborhoods and Schools Act of 2014
(§ 1170.18), if the defendant was convicted of the offense based on
his or her theft of the vehicle, which would qualify as theft of
property under section 490.2 if the vehicle was worth $950 or
less. The Page court’s analysis was based on the language of
Proposition 47, the voters’ instructions, and the proposition’s
legislative history. (Page, at pp 1183-1187.) Neither R.G. nor
13
Page addressed whether section 1170.95 applies to convictions for
manslaughter.
Gallardo also contends section 1170.95 violates equal
protection principles because it treats defendants convicted of
voluntary manslaughter pursuant to a plea differently from those
convicted of murder. We agree with the Courts of Appeal that
have rejected an equal protection challenge on this basis. (See
Sanchez, supra, 48 Cal.App.5th at p. 920; Paige, supra,
51 Cal.App.5th at p. 206; Cervantes, supra, 44 Cal.App.5th at
p. 888.)
Although Gallardo contends those convicted of voluntary
manslaughter and murder are similarly situated, it is axiomatic
that “‘offenders who commit different crimes are not similarly
situated for equal protection purposes.’” (Cervantes, supra,
44 Cal.App.5th at p. 888; accord, Paige, supra, 51 Cal.App.5th at
p. 206; Sanchez, supra, 48 Cal.App.5th at p. 920.) Because
Gallardo was “‘convicted of voluntary manslaughter, a different
crime from murder, which carries a different punishment,’” he
“‘has failed to establish the threshold requirement of an equal
protection claim: disparate treatment of similarly situated
persons.’” (Sanchez, at p. 920; accord, Paige, at p. 205; Cervantes,
at p. 888.)
Even if those convicted of manslaughter and murder were
similarly situated for purposes of section 1170.95, we agree with
the reasoning of the courts in Paige, supra, 51 Cal.App.5th at
page 205, Sanchez, supra, 48 Cal.App.5th at page 921, and
Cervantes, supra, 44 Cal.App.5th at page 888 that an equal
protection challenge still fails. “[I]f the classification does not
involve a suspect class, legislation is presumed to be valid under
the equal protection clause if the statutory classification is
14
rationally related to a legitimate state interest.” (People v. Mora
(2013) 214 Cal.App.4th 1477, 1483; see Paige, at p. 205 [applying
rational basis review in deciding equal protection challenge];
Sanchez, at p. 921 [same]; Cervantes, at p. 888 [same]; People v.
Lopez, supra, 38 Cal.App.5th at p. 1111 [“We . . . apply rational
basis review to determine whether the Legislature’s limitation of
the ameliorative provisions of Senate Bill 1437 was justified.”].)
As the Sanchez court explained, “[T]he Legislature could
have reasonably concluded ‘that the punishment for voluntary
manslaughter was appropriate, but the punishment for murder
based on the [natural and probable consequences theory] could be
excessive and reform was needed only there.’ [Citation.] ‘“The
Legislature is responsible for determining which class of crimes
deserves certain punishments and which crimes should be
distinguished from others. As long as the Legislature acts
rationally, such determinations should not be disturbed.”’
[Citation.] [¶] We reject [defendant’s] assertion that the
distinction was not reasonable in light of the Legislature’s intent
to save money on the costs of incarceration. Whether
expanding section 1170.95 to include those who pled guilty to
voluntary manslaughter would result in more savings is
irrelevant. That is exactly the type of fiscal line-drawing and
policymaking decision that the Legislature is free to make.
[Citation.] It does not demonstrate that it was irrational to
distinguish between those convicted of murder by plea and those
convicted of voluntary manslaughter by plea.” (Sanchez, supra,
15
48 Cal.App.5th at p. 921; accord, Paige, supra, 51 Cal.App.5th at
p. 206; Cervantes, supra, 44 Cal.App.5th at pp. 888-889.)4
We agree with our colleagues in Paige, supra, 51
Cal.App.5th at p. 206, Sanchez, supra, 48 Cal.App.5th at p. 920,
and Cervantes, supra, 44 Cal.App.5th at p. 888, and do not find
Gallardo’s arguments to the contrary persuasive.
DISPOSITION
The order denying Gallardo’s petition for resentencing
under section 1170.95 is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
4 We likewise reject Gallardo’s argument he was denied
substantive due process. “‘[S]ubstantive due process requires a
rational relationship between the objectives of a legislative
enactment and the methods chosen to achieve those objectives.’
[Citation.] Here there was such a relationship. The legislative
goal was to eliminate the sentencing disparity caused by the
felony murder rule [and natural and probable consequences
doctrine]. That goal was properly achieved by the section 1170.95
petition procedure to vacate those murder convictions.”
(Cervantes, supra, 44 Cal.App.5th at p. 889.)
16