Opinion
D077860
06-08-2021
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LOPEZ CONTRERAS, Defendant and Appellant.
Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Lynne G. McGinnis and Teresa Torreblanca, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD238193) APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Lynne G. McGinnis and Teresa Torreblanca, Deputy Attorneys General for Plaintiff and Respondent.
INTRODUCTION
Anthony Lopez Contreras filed a petition pursuant to Penal Code section 1170.95 to vacate his attempted murder conviction and to be resentenced. He appeals the trial court's order denying his petition. We conclude, as every appellate court that has addressed this issue has, that section 1170.95 provides no relief for defendants convicted of attempted murder. Accordingly, we affirm.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, a jury convicted Contreras of premeditated attempted murder (§§ 664/187 subd. (a), 189), among other offenses, and found true the allegations that he committed the offense for the benefit of a criminal street gang (§ 186.22, subds. (b)(1), (b)(4) & (b)(5)) and a principal in the offense personally discharged a firearm (§ 12022.53, subd. (e)(1)). Contreras was sentenced to prison for life for the attempted murder, plus 25 years to life for the gun enhancement.
The facts underlying Contreras's crimes are not relevant to the legal issues before us; they are set forth in Contreras's previous, direct appeal, in People v. Contreras (May 13, 2015, D064999) [nonpub. opn.]. In his direct appeal, Contreras argued the trial court erred by instructing the jury on liability under the natural and probable consequences doctrine. Rejecting that argument, this court affirmed Contreras's convictions in 2015.
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which amended sections 188 and 189 to limit liability for felony murder and abrogate the natural and probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015.) The measure also added section 1170.95, which allows defendants convicted of murder under these theories of homicide liability to petition to vacate their convictions and to be resentenced. (Id. at § 4.)
Following the enactment of Senate Bill 1437, Contreras filed a petition for resentencing under section 1170.95. Contreras made a prima facie showing that he was convicted of attempted murder under the natural and probable consequences doctrine. The trial court concluded, however, that he was not eligible for resentencing because section 1170.95 was only available to defendants convicted of murder, not attempted murder.
DISCUSSION
I.
Section 1170.95 Does Not Apply to Attempted Murder Convictions
Pursuant to section 1170.95, "[a] person convicted of felony murder or murder under a natural and probable consequences theory" may file a petition "to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts[.]" (§ 1170.95, subd. (a).) If the petitioner makes "a prima facie showing that [he or she] falls within the provisions" of the statute (§ 1170.95, subd. (c)), the trial court "shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence[.]" (§ 1170.95, subd. (d)(1)). "The parties may waive the resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing." (§ 1170.95, subd. (d)(2).) Whether Contreras is eligible for relief under section 1170.95 presents a question of statutory interpretation, which we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
Contreras's appeal first raises the question of whether Senate Bill 1437 modified accomplice liability for the crime of attempted murder. On this question, the Courts of Appeal are divided. (Compare People v. Alaybue (2020) 51 Cal.App.5th 207, 222-225 (Alaybue) [Senate Bill 1437 did not amend accomplice liability for attempted murder]; People v. Dennis (2020) 47 Cal.App.5th 838, 844-847 (Dennis) [same], review granted July 29, 2020, S262184; People v. Munoz (2019) 39 Cal.App.5th 738, 753-760 (Munoz) [same], review granted Nov. 26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1107 (Lopez) [same], review granted Nov. 13, 2019, S258175; with People v. Sanchez (2020) 46 Cal.App.5th 637, 642-644 [Senate Bill 1437 amended accomplice liability for attempted murder], review granted June 10, 2020, S261768; People v. Medrano (2019) 42 Cal.App.5th 1001, 1012-1016 (Medrano) [same], review granted Mar. 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th 956, 963-968 (Larios) [same], review granted Feb. 26, 2020, S259983.)
However, we need not address this first issue because, irrespective of whether Senate Bill 1437 amended accomplice liability for attempted murder, Courts of Appeal agree uniformly that the resentencing procedure under section 1170.95 does not apply to attempted murder convictions. (See Alaybue, supra, 51 Cal.App.5th at p. 223 [the plain terms of section 1170.95 do not apply to attempted murder]; Dennis, supra, 47 Cal.App.5th at pp. 845-846 [same], review granted July 29, 2020, S262184; Medrano, supra, 42 Cal.App.5th at pp. 1016-1018 [same], review granted Mar. 11, 2020, S259948; Larios, supra, 42 Cal.App.5th at pp. 968-970 [same], review granted Feb. 26, 2020, S259983; Munoz, supra, 39 Cal.App.5th at p. 754 [same], review granted Nov. 26, 2019, S258234; Lopez, supra, 38 Cal.App.5th at pp. 1104-1105 [same], review granted Nov. 13, 2019, S258175.)
As explained in Larios, "[t]he plain language of section 1170.95, subdivision (a) limits relief to persons 'convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court . . . .' No language in section 1170.95 references relief to persons convicted of attempted murder." (Larios, supra, 42 Cal.App.5th at p. 969.) As further explained by the court in Alaybue, "[t]he repeated references to murder convictions in section 1170.95, as opposed to attempted murder convictions, make clear that Senate Bill 1437's ameliorative benefit was meant to reach only the completed offense of murder, not the distinct offense of attempted murder." (Alaybue, supra, 51 Cal.App.5th at p. 223.) We see no reason to depart from the courts' uniform and prevailing interpretation of section 1170.95. The plain language of section 1170.95 leads to "[t]he inescapable conclusion . . . that the Legislature intended to exclude attempted murder from Senate Bill 1437's ambit." (Munoz, supra, 39 Cal.App.5th at p. 757.)
The question of whether Senate Bill 1437 applies to attempted murder under the natural and probable consequences doctrine is pending before the California Supreme Court. (People v. Lopez (Nov. 13, 2019, S258175) ---Cal.5th---, 254 Cal.Rptr.3d 638, 451 P.3d 777.) However, until the high court provides guidance on the issue, we see no reason to depart from other appellate courts on the narrow question of whether section 1170.95 applies to the crime of attempted murder.
Because the plain language of the statute is unambiguous, we need not address the legislative history. Moreover, every appellate court that has considered the legislative history of Senate Bill 1437 has concluded that it evinces the legislature's intent to provide resentencing relief only for individuals convicted of murder and not attempted murder. (Alaybue, supra, 51 Cal.App.5th at pp. 223-224; Dennis, supra, 47 Cal.App.5th at pp. 845-846; Medrano, supra, 42 Cal.App.5th at pp. 1017-1018; Larios, supra, 42 Cal.App.5th at pp. 969-970; Munoz, supra, 39 Cal.App.5th at pp. 763-764; Lopez, supra, 38 Cal.App.5th at p. 1105.)
Contreras contends, however, that the exclusion of defendants convicted of attempted murder from resentencing relief leads to the absurd result of "granting relief to more culpable defendants convicted of murder." He argues that People v. King (1993) 5 Cal.4th 59 (King), People v. Jenkins (1995) 10 Cal.4th 234 (Jenkins), and People v. Bullard (2020) 9 Cal.5th 94 (Bullard) demonstrate that in order to avoid absurd results, statutes such as Section 1170.95 must be judicially amended to include lesser included offenses. We disagree. Other courts have also addressed this claim of alleged absurdity and concluded no "absurdity [is] apparent" from a literal application of the statute. (Munoz, supra, 39 Cal.App.5th at p. 757.)
Underpinning this argument is Contreras's contention that attempted murder is a lesser included offense of murder. However, the law on this issue is unclear. (Compare People v. Davidson (2008) 159 Cal.App.4th 205, 210 ["Attempted murder is a lesser included offense of murder"]; with People v. Bailey (2012) 54 Cal.4th 740, 752-753 [the principle that attempt is a lesser included offense of any completed crime is not subject to generalizations and is "not applicable . . . where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense"].) We need not decide this issue, and instead assume for purposes of this appeal that attempted murder is a lesser included offense of murder.
In King, Jenkins, and Bullard, the Supreme Court found that the literal interpretation of a statute would have mandated clearly absurd results. King involved a "sentencing anomaly" in which "a literal interpretation of interrelated statutes would have meant that some juveniles convicted of first degree murder would be eligible to be committed to the former California Youth Authority (CYA) rather than sentenced to state prison, but the same juveniles who merely attempted to commit first degree murder would be ineligible for such a commitment." (People v. Cook (2015) 60 Cal.4th 922, 938, fn. 2 [summarizing King].) Thus, the Supreme Court concluded the "only rational interpretation" of the legislative history was to consider juveniles convicted of attempted murder as eligible, explaining that the "clear legislative intent . . . should prevail over any irrational result caused by the amendment of different statutes in separate codes at different times for unrelated purposes." (King, supra, 5 Cal.4th at p. 69.)
In Jenkins, the Supreme Court rejected the literal interpretation of a habitual offender statute in order to avoid the "absurd, clearly unintended result" of a "recidivist sentenced under section 667.7 . . . serv[ing] a shorter period of imprisonment than a person sentenced under an otherwise applicable nonrecidivist sentencing provision." (Jenkins, supra, 10 Cal.4th at p. 247.) Finally in Bullard, the Supreme Court decided that section 490.2 should be broadly interpreted to apply to convictions for temporary vehicle theft, given the "utter illogic" of the counter interpretation, which would render permanent vehicle theft a misdemeanor but leave temporary vehicle theft a felony. (Bullard, supra, 9 Cal.5th at p. 106.)
Unlike the statutory schemes addressed in King, Jenkins, and Bullard, a literal application of the plain language of section 1170.95 does not lead to a "patently illogical" result. (Bullard, supra, 9 Cal.5th at p. 109.) In considering a similar claim of alleged absurdity, the Munoz court analyzed and compared the statutory scheme in King to section 1170.95, and concluded that "it is far from clear that interpreting Senate Bill 1437 to apply to convictions for murder, but not attempted murder, will always, or typically, result in longer sentences for the latter." (Munoz, supra, 39 Cal.App.5th at pp. 757-758.) That is because "Senate Bill 1437 does not mandate any particular punishment for either murder or attempted murder. The penalties for these crimes are prescribed in other statutes, and . . . the basic punishment for attempted murder is far less severe than that imposed for murder." (Id. at p. 758.) Moreover, the application of the "statute's plain language [does not] undermine the primary legislative goal of making punishment commensurate with culpability, because the punishment for attempted murder was already, prior to Senate Bill 1437's enactment, less than that imposed for murder." (Ibid.)
Although limiting resentencing relief to certain murder convictions may result in harsher sentences for defendants convicted of attempted murder, this is not mandated by the statute, and we do not find such a result to be so absurd it warrants the extraordinary act of judicially amending the plain language of the statute. Ultimately, any concern regarding the "potentially inequitable operation of section 1170.95 lies with the Legislature. If the Legislature concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill 1437's reach, it has only to amend the law." (Munoz, supra, 39 Cal.App.5th at p. 760.)
Contreras's reliance on In re R.G. (2019) 35 Cal.App.5th 141 is also unpersuasive. There, the appellate court determined that section 1170.95 applied to certain juvenile adjudications for homicide offenses, even though the statute's references to a "conviction" and "sentence" are not applicable to juvenile proceedings. (Id. at p. 146.) The court's "holding 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." (Munoz, supra, 39 Cal.App.5th at p. 756, fn. 19.) Such considerations rooted in juvenile law are not implicated here.
For the foregoing reasons, we reject Contreras's invocation of the rule of lenity. Under the rule of lenity, when "there are two plausible interpretations of the statutory language . . . courts resolve doubts as to the meaning of a statute in a criminal defendant's favor." (People v. Cornett (2012) 53 Cal.4th 1261, 1271.) Contreras has not presented a plausible interpretation of Section 1170.95 to trigger the rule of lenity. Instead, the plain language of the statute limits relief only to defendants convicted of murder, and this interpretation does not lead to an impermissibly absurd result.
II.
Section 1170.95 Does Not Violate Equal Protection
We also reject Contreras's contention that the availability of section 1170.95 relief to defendants convicted of murder but not to those convicted of attempted murder would violate the equal protection clauses of the United States and California Constitutions.
To sustain a federal or state equal protection claim, the first inquiry in the analysis is whether the legislative classification affects two or more similarly situated groups in an unequal manner. (People v. Noyan (2014) 232 Cal.App.4th 657, 666.) Second, where, as here, the legislative classification does not reach a suspect class or fundamental right, the classification does not violate equal protection if it bears a rational relationship to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200; People v. Wilkinson (2004) 33 Cal. 4th 821, 838 [applying rational basis review to equal protection challenge regarding disparities in criminal sentencing statutes].)
Contreras's equal protection argument fails in both respects. First, he is not similarly situated to defendants convicted of murder, because murder and attempted murder are separate crimes subject to separate punishments. (Munoz, supra, 39 Cal.App.5th at pp. 760-761; Lopez, supra, 38 Cal.App.5th at pp. 1109-1110.) Second, there is a rational basis for limiting section 1170.95's scope to encompass only certain murder convictions and to exclude convictions for attempted murder, "based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions." (Larios, supra, 42 Cal.App.5th at p. 970.) In order to conserve the state's limited resources, the Legislature could have reasonably prioritized sentencing reforms for murder convictions, since the punishment for attempted murder is already less severe than the punishment for murder. (Munoz, supra, 39 Cal.App.5th at pp. 762-768; Lopez, supra, 38 Cal.App.5th at pp. 1111-1112.)
For these reasons, limiting resentencing relief under Section 1170.95 to certain defendants convicted of murder and excluding defendants convicted of attempted murder does not violate equal protection under either the United States or California Constitution.
DISPOSITION
The order denying the petition pursuant to section 1170.95 is affirmed.
DO, J. WE CONCUR: HALLER, Acting P. J. AARON, J.