Opinion
E075144
11-30-2021
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO VALENZUELA ENRIQUEZ, Defendant and Appellant.
Cynthia Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne McGinnis and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB057148, Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Cynthia Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne McGinnis and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On March 6, 2008, an information charged defendant and appellant Alfredo Valenzuela Enriquez with murder under Penal Code section 187, subdivision (a) (count 1); second-degree robbery under section 211 (count 2); elder abuse resulting in death under section 368, subdivision (b)(1) (count 3); and receiving stolen property under section 496, subdivision (a) (count 4). The information also alleged that as to all counts, defendant personally inflicted great bodily injury on the victim under section 12022.7, subdivision (c); and as to count 3 caused great bodily injury to the victim under section 358, subdivision (b)(2)(B), and proximately caused the death of the victim under section 368, subdivision (b)(3)(B).
All further statutory references are to the Penal Code unless otherwise indicated.
On March 18, 2010, the trial court granted the prosecution's move to amend the information to add count 5 for receiving stolen property (§ 496, subd. (a)), and counts 6 through 10 for theft from an elder (§ 368, subd. (d)). That same day, defendant pled guilty to involuntary manslaughter, the lesser included offense of count 1, and all remaining counts. Defendant also admitted the allegations for counts 2 through 4. In exchange for defendant's guilty plea, the parties agreed to a stipulated sentence of 25 years.
On April 15, 2010, the trial court granted the People's motion to dismiss the remaining allegations for counts 1 and 3. Thereafter, the court sentenced defendant to 25 years in prison, which included an 11-year term for voluntary manslaughter.
Pursuant to Proposition 47 and section 1170.18, on March 24, 2017, the trial court resentenced defendant on counts 4 and 5. Defendant's sentence was reduced to an aggregate 22-year sentence. Defendant's term for voluntary manslaughter was not affected.
On September 20, 2019, defendant filed a petition for resentencing under section 1170.95.
On November 19, 2019, the People filed a motion to strike defendant's petition. The People argued that Senate Bill No. 1437 was unconstitutional. Defendant opposed the motion to strike. On December 20, 2019, the trial court denied the motion to strike.
On January 22, 2020, the People filed an opposition to the section 1170.95 petition, arguing that defendant was ineligible for resentencing. Defendant filed a timely reply on February 6, 2020.
On February 25, 2020, at the hearing on the section 1170.95 petition, defendant was represented by retained counsel. After hearing arguments, the trial court found defendant ineligible for resentencing and denied defendant's petition.
On June 1, 2020, defendant filed a timely notice of appeal and requested a certificate of probable cause. On June 23, 2020, the trial court denied defendant's request for a certificate of probable cause.
B. FACTUAL HISTORY
According to the probation report, defendant and an accomplice went to a grocery store to find someone to rob. They noticed the victim, an 84-year old woman. Defendant and the accomplice "followed that person, the victim, to her home, where [the accomplice] took the purse and they drove away. After they had the purse, they drove to various gas stations to purchase gas and beverages and to see if the credit cards worked. Eventually, they went to a mall in Moreno Valley, where they bought new clothing with one of the credit cards they obtained from the victim's purse."
The victim was found by her neighbors, she had suffered trauma to her head. Based on the autopsy, the victim had fractured ribs on both sides of her body, and hemorrhaging to the left front of her neck. Her injuries were consistent with being struck on the head and falling backwards onto the back of her head. The victim also had heart disease, making her more likely to develop an arrythmia in stressful situations. The coroner concluded that the victim died from trauma and stress resulting from the robbery. The manner of death was ruled a homicide.
DISCUSSION
A. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT'S SECTION 1170.95 PETITION
Defendant contends that the trial court erred in finding that he was ineligible for resentencing because he pled guilty to voluntary manslaughter. The People argue that the trial court did not err because defendant "was convicted of voluntary manslaughter, not murder, and is therefore ineligible for resentencing relief under section 1170.95 as a matter of law." We agree with the People and find that the court properly denied defendant's petition.
On May 24, 2021, the People filed a request for judicial notice of the orders issued by our court and the trial court in response to the COVID-19 pandemic. On July 14, 2021, defendant filed a request for judicial notice of the trial court's docket (Exhibit A), the worksheet provided by the trial court clerk to our court and to Appellate Defender's, Inc. (Exhibit B), and legislative material. We reserved ruling on the requests for judicial notice. We hereby grant the People's request for judicial notice and defendant's request for judicial notice as to Exhibits A and B.
1. THE APPEAL IS TIMELY
We first address the People's argument that defendant's "notice of appeal was not timely filed." The People contend that the appeal is untimely because the San Bernardino Superior Court presented the notice of appeal to our court on June 1, 2020, which was more than 60 days after the judgment, even with Covid-19 emergency extensions taken into account. The People argue that the notice was due by May 27, 2020.
For the purposes of determining whether a notice of appeal is timely filed, the controlling date is the date of receipt by the trial court, and not the date of forwarding the notice of to the appellate court. (Cal. Rules of Court, Rule 8.304(a)(1) and (c)(6).) Here, the trial court docket shows that defendant's notice of appeal was received on April 24, 2020. Moreover, the trial court provided both our court and Appellate Defenders, Inc. with a worksheet with the notice of appeal. The worksheet indicates that the trial court received the notice of appeal on April 24, 2021. Therefore, the notice was timely.
2. LEGAL BACKGROUND ON SECTION 1170.95
Next, we address whether the trial court properly denied defendant's section 1170.95 petition. For the reasons set forth post, we affirm the court's denial of the petition.
"The Legislature enacted Senate Bill [No.] 1437 [(Stats. 2018, ch. 1015)] to 'amend the felony murder rule and the natural and probable consequences doctrine . . . 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 of the underlying felony who acted with reckless indifference to human life.' [Citation.] The bill amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder." (People v. McClure (2021) 67 Cal.App.5th 1054, 1061.)
"The Legislature amended section 188 by adding subdivision (a)(3), which provides: 'Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citations.] And section 189, subdivision (e), now limits liability for murder to a person who was either the actual killer or, though not the actual killer, acted 'with intent to kill' and 'aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer' in the commission of first degree murder, or was 'a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.'" (People v. McClure, supra, 67 Cal.App.5th at p. 1061.)
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring 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[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citations.] Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' [Citation.] If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition.'" (Lewis, supra, 11 Cal.5th at pp. 959-960.) "Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief." (Id. at p. 960.)
Section 1170.95, subdivision (c), "describe[s] a single prima facie showing." (Lewis, supra, 11 Cal.5th at p. 962.) Further, "a trial court can rely on the record of conviction in determining whether that single prima facie showing is made." (Id. at p. 979.) The Supreme Court has explained that "the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Id. at p. 971, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 978-979 (Drayton).)
"In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.] As the People emphasize, the 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972; see also Drayton, supra, 47 Cal.App.5th at p. 980.) "If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170.95[, subdivision] (a), then the trial court should issue an order to show cause." (Drayton, at p. 980.)
"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.' [Citation.] 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'" (Lewis, supra, 11 Cal.5th at p. 960.)
Where, as here, our analysis of the trial court's ruling turns on interpretation of section 1170.95 and the trial court's authority to engage in independent factfinding when summarily denying a petition under section 1170.95, subdivision (c), we review the ruling de novo. (See Drayton, supra, 47 Cal.App.5th at p. 981; People v. Duchine (2021) 60 Cal.App.5th 798, 811 (Duchine).)
2. ANALYSIS
In this case, defendant argues that his "petition was improperly denied because section 1170.95 must be interpreted to include guilty pleas to manslaughter entered in lieu of trial on a felony murder charge (All caps. & boldface omitted.) Defendant'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 (A.N.).)"' "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.'" (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 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, "here 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, People v. Harris (2021) 60 Cal.App.5th 557, 566, review granted April 21, 2021, S267529 ["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, 264 (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 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' "].)
After the parties briefed these issues, Senate Bill No. 775 (2021-2022 Reg. Sess.), which amends section 1170.95, was signed by the Governor on October 5, 2021. (Stats. 2021, ch. 551, § 2.) This legislation "clarifies existing law to include voluntary manslaughter and attempted murder convictions as eligible for relief under [Senate Bill No.] 1437." (Sen. Com. on Public Safety, com. on Sen. Bill No. 775 (2021-2022 Reg. Sess.) Senate Bill 775 was not passed as urgency legislation, and therefore, it did not become effective upon its enactment, but instead will become effective on January 1, 2022. (See Cal. Const., Art. IV, § 8, subd. (c).) We note that on August 4, 2021, we reserved ruling on defendant's request for judicial notice of legislative materials filed on July 14, 2021. The request is denied as unnecessary to the resolution of the issue on appeal as premature. This is an appeal from defendant's petition based on the current language of section 1170.95. This appeal does not bar defendant from filing a section 1170.95 petition in the trial court once the new version goes into effect on January 1, 2022.
In Paige, supra, 51 Cal.App.5th at page 202, the court explained that "read 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.' . . . 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, 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." (Fn. omitted.) (Accord, Sanchez, supra, 48 Cal.App.5th at pp. 918-919; Turner, supra, 45 Cal.App.5th at p. 438.)
Furthermore, 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 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. 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.)
Defendant 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 p. 888.)
Although defendant 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. 925.) Because defendant 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 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 [No.] 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 [the 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, 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.)
DISPOSITION
The trial court's order denying defendant's section 1170.95 petition for resentencing is affirmed.
We concur: McKINSTER Acting P. J., CODRINGTON, J.