People v. Barnett CA2/4

Filed 10/6/21 P. v. Barnett CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309144
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA086630
v.
DUANE BARNETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Affirmed.
John L. Staley, 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, Senior Assistant Attorney General, Scott A. Taryle and
David A. Voet, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2010, a jury convicted defendant and appellant Duane
Barnett of attempted murder and found firearm and gang
allegations true. The trial court sentenced him to 40 years to life
in state prison. In 2020, Barnett filed a petition for resentencing
under Penal Code section 1170.95.1 The trial court summarily
denied the petition, concluding Barnett was ineligible for relief as
a matter of law because he was convicted of attempted murder,
not murder. On appeal, Barnett argues reversal is required
because the trial court erred in concluding section 1170.95 does
not apply to individuals convicted of attempted murder. He also
argues the court prejudicially erred by denying his petition
without first appointing counsel. We reject these contentions and
affirm the order denying Barnett’s petition.
PROCEDURAL BACKGROUND
In 2010, a jury convicted Barnett of attempted murder
(count one; §§ 664/187, subd. (a)) and assault with a deadly
weapon (count two; § 245, subd. (a)(2)). The jury found true
firearm and gang allegations attached to counts one and two.
(§§ 12022.53, subds. (b)-(d), 186.22, subd. (b) [count one];
§§ 12022.5, subd. (a), 186.22, subd. (b) [count two].) The trial
court sentenced him to 40 years to life for the attempted murder
conviction and sustained firearm and gang allegations, and
stayed sentencing on count two under section 654.
In 2020, Barnett filed a petition for resentencing under
section 1170.95. In his petition, Barnett requested that counsel
1 All undesignated statutory references are to the Penal
Code.
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be appointed on his behalf. Without appointing counsel, the trial
court summarily denied the petition, concluding Barnett was
ineligible for relief as a matter of law because he was convicted of
attempted murder, not murder. The court further stated even
assuming section 1170.95 applied to attempted murder, the
Court of Appeal opinion affirming Barnett’s judgment showed he
acted with the premeditated intent to kill.
Barnett timely appealed.2
DISCUSSION
I. Governing Law: SB 1437 and Section 1170.95
The Legislature enacted SB 1437 “to amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e);
People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
SB 1437 also added section 1170.95 to the Penal Code.
(Stats. 2018, ch. 1015, § 4.) This section permits individuals who
were convicted of felony murder or murder under a natural and
probable consequences theory, but who could not be convicted of
murder following SB 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1170.95, subd. (a).) A
2 We omit any recitation of the facts underlying Barnett’s
attempted murder conviction because they are not relevant to the
issues presented in this appeal.
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petition for relief under section 1170.95 must include 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), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel,
should the petitioner seek appointment. (§ 1170.95, subd. (b)(1).)
Subdivision (c) of section 1170.95 provides: “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 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 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.” Subdivision (c) describes “only a
single prima facie” stage of review. (Lewis, supra, 11 Cal.5th at p.
962.) Under subdivision (c), “a complying petition is filed; the
court appoints counsel, if requested; the issue is briefed; and then
the court makes one . . . prima facie determination.” (Id. at p.
966, fn. omitted.)
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra,
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11 Cal.5th at p. 960.) At the hearing, the parties may rely on the
record of conviction or present “new or additional evidence” to
support their positions, and “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
II. Section 1170.95 Does Not Apply to Barnett’s
Attempted Murder Conviction
The trial court was correct in concluding section 1170.95
does not apply to Barnett’s attempted murder conviction. Section
1170.95, subdivision (a) allows persons “convicted of felony
murder or murder under a natural and probable consequences
theory” to petition the sentencing court to vacate their “murder
conviction” under certain conditions. By its terms, this provision
applies only to murder convictions and provides no relief from
convictions for attempted murder. Courts are in agreement that
the procedures in section 1170.95 do not apply to those convicted
of attempted murder. (See, e.g., People v. Lopez (2019) 38
Cal.App.5th 1087, 1103-1112, review granted Nov. 13, 2019,
S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738,
753-768, review granted Nov. 26, 2019, S258234 (Munoz); People
v. Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26,
2020, S259983 [agreeing with Lopez and Munoz that “the relief
provided in section 1170.95 is limited to certain murder
convictions and excludes all other convictions, including a
conviction for attempted murder.”].) We see no reason to part
ways with these courts.
Barnett contends “[i]t would lead to absurd results to give a
defendant charged with murder the benefit of section 188,
subdivision (a)(3), while denying that benefit to the less culpable
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defendant convicted of a lesser offense.” It is true that in extreme
cases, “‘“‘[t]he literal meaning of the words of a statute may be
disregarded to avoid absurd results . . . .’” [Citations.]’ [Citation.]”
(People v. Bell (2015) 241 Cal.App.4th 315, 351, fn. omitted.)
However, providing one category of individuals certain benefits
while denying those same benefits to a different category of
individuals is not an absurd result.
Barnett similarly argues SB 1437 violates equal protection
by benefitting those convicted of murder without extending the
same benefits to those convicted of attempted murder. In order to
succeed on his equal protection claim, Barnett must establish: (1)
he is similarly situated to persons convicted of murder; and (2)
there was no rational basis for the Legislature’s decision to
exclude people convicted of attempted murder from SB 1437’s
reach. (Munoz, supra, 39 Cal.App.5th at pp. 760-761.) Munoz
rejected the same argument Barnett now raises. With respect to
the first element, Munoz explained because murder and
attempted murder are different offenses with different penal
consequences, those convicted of attempted murder are not
similarly situated to those convicted of murder for equal
protection purposes. (Ibid., citing Lopez, supra, 38 Cal.App.5th at
pp. 1109-1111.) Regarding the second element, Munoz explained:
“the Legislature could rationally have determined that extending
Senate Bill 1437 relief to attempted murderers would put too
great a strain on state resources, while resulting—in most
cases—in insignificant decreases in the sentences served for
attempted murder convictions. The Legislature could reasonably
conclude its aims could be achieved by limiting relief to persons
convicted of murder, but not attempted murder.” (Munoz, at p.
765.) We agree with Munoz and other cases that have held SB
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1437 does not violate equal protection. (See, e.g., Lopez, supra, 38
Cal.App.5th at pp. 1109-1112.)3
III. The Failure to Appoint Counsel Was Harmless
Error
Barnett next argues because he made a prima facie
showing of entitlement to relief under section 1170.95, the trial
court prejudicially erred by summarily denying his petition
without appointing counsel. Barnett is correct that the trial court
erred under state law by not granting his request to have counsel
appointed. (Lewis, supra, 11 Cal.5th at pp. 966, 972-973.)4 The
question is whether that error was harmless. (Id. at pp. 973-974.)
More specifically, the inquiry is whether Barnett can
demonstrate “‘“it is reasonably probable that if [he . . .] had been
afforded assistance of counsel his . . . petition would not have
been summarily denied without an evidentiary hearing.”’
[Citation.]” (Id. at p. 974.) We conclude Barnett cannot satisfy his
burden of showing prejudice because, as discussed above, section
1170.95 does not afford relief to individuals convicted of
3 To the extent Barnett suggests the trial court’s denial of his
petition violated his constitutional due process rights, we reject
this contention as well.
4 Barnett separately argues the trial court’s summary denial
of his petition violated his right to counsel under the federal and
state constitutions, as well as under federal due process. The
Supreme Court recently foreclosed Barnett’s constitutional
arguments when it held the failure to appoint counsel at the
prima facie stage of a section 1170.95 hearing is error under state
law only. (Lewis, supra, 11 Cal.5th at pp. 972-973.)
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attempted murder. He is therefore ineligible for section 1170.95
relief as a matter of law, and the failure to appoint him counsel
was harmless error.
DISPOSITION
The order denying Barnett’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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