Opinion
E075834
06-23-2021
THE PEOPLE, Plaintiff and Respondent, v. RUBEN JULIO HERNANDEZ, Defendant and Appellant.
Theresa Osterman Stevenson, 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, Arlene A. Sevidal, Lynne G. McGinnis, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF132924 John D. Molloy, Judge. Affirmed.
Theresa Osterman Stevenson, 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, Arlene A. Sevidal, Lynne G. McGinnis, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I
INTRODUCTION
Defendant and appellant Ruben Julio Hernandez appeals from the trial court's postjudgment order denying his petition for resentencing under Penal Code section 1170.95. He argues the trial court erred in summarily denying his petition because his 2012 conviction for attempted murder should be eligible for relief under section 1170.95. He also asserts that failing to extend the statute's coverage to persons convicted of attempted murder violates equal protection. We disagree and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated.
II
BACKGROUND
On September 14, 2011, the People filed an information charging defendant with one count of attempted premeditated murder (§§ 664/187, subd. (a); count 1); two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); counts 2 & 3); and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 4). The information also alleged that in the commission of count 1, defendant personally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)) and that defendant committed counts 1, 2, and 3 for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)).
On September 21, 2012, the People orally amended the information to add count 5, a charge of second degree attempted murder (§§ 664/187, subd. (a)). Pursuant to a plea agreement, on that same day, defendant pleaded guilty to count 5. He also admitted sentencing enhancements pursuant to sections 186.22, subdivision (b)(1), and 12022, subdivision (a)(1). In exchange, the remaining charges and enhancement allegations were dismissed and defendant was sentenced to 20 years in state prison--nine years for the attempted murder, one year for the firearm enhancement, and 10 years for the gang enhancement.
At the change of plea hearing, the trial court noted that the attempted murder charge was based on the natural and probable consequences theory.
On July 20, 2020, defendant filed a petition for resentencing under section 1170.95. In his petition, defendant checked the box indicating that he pleaded “guilty or no contest to 1st or 2nd degree murder in lieu of going to trial” pursuant to the felony-murder rule or the natural and probable consequences doctrine, and in parentheses wrote “Attempted Murder” after the sentence. He also checked the box stating that he “could not now be convicted of 1st or 2nd degree murder” because of changes to sections 188 and 189, and again wrote “Attempted Murder” in parentheses. The trial court summarily denied the petition on the ground that controlling case law concludes section 1170.95 does not apply to attempted murder. Defendant timely appealed.
III
DISCUSSION
Defendant argues the trial court erred in summarily denying his petition for resentencing because section 1170.95 applies to persons convicted of attempted murder. He reasons he is entitled to further proceedings because his attempted murder conviction, despite it being final, was based on the natural and probable consequences theory of liability. He also asserts that the failure to apply section 1170.95 to persons convicted of attempted murder, and only apply it to those convicted of murder, violates constitutional guarantees to equal protection under the law.
“‘When we interpret statutes, our primary task is to determine and give effect to the Legislature's purpose in enacting the law.' [Citation.]” (People v. Flores (2020) 44 Cal.App.5th 985, 992.) We independently review questions of statutory interpretation. In interpreting a statute, our “‘fundamental task... is to determine the Legislature's intent so as to effectuate the law's purpose.'” (People v. Ruiz (2018) 4 Cal.5th 1100, 1105.) We first examine the statute's words themselves, giving them their usual and ordinary meaning, since the statutory language is generally the most reliable indicator of the Legislature's intent. (Ibid.) “‘If the language [of a statute] is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.' [Citation.]” (People v. Flores, at p. 992.)
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended murder liability under the felony murder and natural and probable consequences theories. The bill redefined murder under section 188 to require that the principal acted with malice aforethought. Now, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have intent to kill is not liable for felony murder unless he or she “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.” (§ 189, subd. (e)(3).)
Senate Bill 1437 also enacted section 1170.95, which authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts” so long as three conditions are met: “(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. [¶] (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.” (§ 1170.95, subd. (a)(1)-(3).) Any petition that fails to make “a prima facie showing that the petitioner falls within the provisions of [section 1170.95]” may be denied without a hearing. (§ 1170.95, subds. (c) & (d).)
Numerous courts, including this court, have analyzed the language of section 1170.95, subdivision (a), and found it inapplicable to challenges by defendants convicted of attempted murder. (See People v. Harris (2021) 60 Cal.App.5th 557, 565, review granted Apr. 21, 2021, S267529 (Harris); People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 754-756, review granted Nov. 26, 2019, S258234 (Munoz); People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1018, review granted Mar. 11, 2020, S259948 (Medrano).)
As defendant points out, the Courts of Appeal have taken varying views as to the effect of Senate Bill 1437 on attempted murder, “with some courts holding that Senate Bill 1437 does not apply to attempted murder at all, some holding that it applies only prospectively, and some holding that it applies both prospectively and retroactively to nonfinal convictions. (See People v. Love (2020) 55 Cal.App.5th 273, 278-279, review granted Dec. 16, 2020, S265445 [summarizing the split of authority].)” (Harris, supra, 60 Cal.App.5th at p. 565.)
However, this “split of authority is irrelevant in the present case because [defendant's] attempted murder conviction is final, ” and “[n]o court has held that Senate Bill 1437 applies retroactively to final convictions of attempted murder.” (Harris, supra, 60 Cal.App.5th at p. 565.) The issue is currently pending in the California Supreme Court and the issue will ultimately be resolved there. (See, e.g., Lopez, supra, 38 Cal.App.5th 1087.) Until the Supreme Court decides this issue, we agree with our holding in Harris and similar such cases. (See, e.g., People v. Alaybue (2020) 51 Cal.App.5th 207, 222-225 (Alaybue); People v. Dennis (2020) 47 Cal.App.5th 838, 844-846, review granted July 29, 2020, S262184; Munoz, supra, 39 Cal.App.5th at pp. 753-759.) These cases fully address all the arguments defendant has advanced here, and we need not repeat the analyses in these cases here but adopt their reasoning.
We discern that the conclusion this court and the other courts have reached is consistent with the plain language of section 1170.95, which allows a petitioner to seek only “to have [his or her] murder conviction vacated and to be resentenced on any remaining counts....” (§ 1170.95, subd. (a).) Subdivision (d)(1) of section 1170.95 permits the trial court to conduct a hearing “to determine whether to vacate the murder conviction” and subdivision (d)(2) similarly refers only to a “murder conviction.” Because the statute does not refer to attempted murder, the plain language refutes defendant's arguments that the Legislature intended section 1170.95 to apply to attempted murder. (Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.)
We disagree with defendant that interpreting the statute to disallow claims for relief for individuals convicted of anything other than the specified murder convictions leads to an absurd result or renders language of section 1170.95, subdivision (a)(2) superfluous. These arguments have been considered and rejected by this court. (See, e.g., Harris, supra, 60 Cal.App.5th at p. 565; People v. Sanchez (2020) 48 Cal.App.5th 914, 918-919 (Sanchez) [reasoning that this interpretation does not produce an absurd result and clarifying that section 1170.95 applies to both murder convictions by plea or trial is not surplusage].)
Furthermore, the Legislature's decision to exclude attempted murder does not violate principles of equal protection because “those charged with, or found guilty of, murder are, by definition, not similarly situated with individuals who face other, less serious charges. [¶]... The Legislature is permitted to treat these two groups of criminals differently.” (Lopez, supra, 38 Cal.App.5th at pp. 1109-1110; accord, Harris, supra, 60 Cal.App.5th at pp. 569-570; Sanchez, supra, 48 Cal.App.5th at pp. 920-921.) “And there is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions.” (Medrano, supra, 42 Cal.App.5th at p. 1018.) “In deciding to omit attempted murder from the ambit of Senate Bill 1437, the Legislature could have reasonably concluded that the need to address sentencing reform was more appropriately directed at persons convicted of murder as opposed to attempted murder. This is so because the punishment for attempted murder is generally far less than the punishment imposed for murder.” (Alaybue, supra, 51 Cal.App.5th at p. 224; accord, Harris, at p. 570.)
“Because a rational basis supports the Legislature's decision to exclude those convicted of attempted murder... from the ambit of section 1170.95, the legislative line-drawing between offenses in section 1170.95 withstands constitutional scrutiny.” (Harris, supra, 60 Cal.App.5th at p. 571.) Defendant's conviction for attempted murder is not eligible for relief under section 1170.95.
IV
DISCUSSION
The trial court's order denying defendant's section 1170.95 petition is affirmed.
We concur: SLOUGH J.FIELDS J.