Opinion
A158366
03-30-2021
THE PEOPLE, Plaintiff and Respondent, v. JULIAN H. JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51603604)
Appellant Julian H. Johnson was charged with two murders and related crimes, but pleaded no contest to two counts of voluntary manslaughter, as well as one count each of attempted murder and attempted robbery. He filed a petition for resentencing pursuant to Penal Code section 1170.95, which provides for resentencing of individuals convicted of felony murder or murder under a natural and probable consequences theory if they can no longer be convicted of murder under January 1, 2019 amendments to the Penal Code. The superior court summarily denied his petition, concluding that his voluntary manslaughter and attempted murder convictions made him ineligible for relief under the statute. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2015, appellant drove Clydedale Hoskin and Miguel Gutierrez to a location in Antioch to acquire narcotics and commit a robbery. After appellant parked the car, Hoskin and Gutierrez exited the vehicle wearing masks and armed with guns and approached a group of people who were congregated outside. Appellant planned to join the two men but was delayed while he hid their cell phones inside the car. Hoskin ordered everyone to the ground and shot into the group, hitting Shannah Tatum in her head and leg. A man in the group fired back and hit Hoskin, killing him. Gutierrez returned fire, killing a bystander named Adrian Craig. Gutierrez returned to the car alone and appellant drove away.
We draw the facts from the parties' summaries of the preliminary hearing evidence below.
On March 8, 2016, an information was filed charging appellant, Gutierrez, and co-defendant Teresa O'Sullivan with two counts of murder of Craig and Hoskin (§ 187, subd. (a), counts one and two), attempted second degree robbery (§§ 664/211, count three), and attempted murder of Tatum (§§ 664/187, subd. (a), count four). As enhancements to the murder counts, the information alleged two special circumstances: multiple murder (§ 190.2, subd. (a)(3)) and felony (robbery) murder (§ 190.2, subd. (a)(17)). Four firearm use enhancements (§ 12022.5, subd (a)) were also alleged against appellant.
In January 2018, pursuant to a negotiated disposition, appellant pleaded no contest to two counts of voluntary manslaughter (§ 192, subd. (a)) and to the other two counts as charged, i.e., attempted murder and attempted robbery. He admitted the firearm enhancement allegations and two prior prison term enhancements. (§ 667.5.)
On March 19, 2018, the trial court sentenced appellant to 20 years in state prison in accordance with the plea agreement, comprised of an upper term of eleven years for one manslaughter count, consecutive one-third middle terms for the other manslaughter and the attempted murder and attempted robbery counts (two years, two years and four months, and eight months, respectively), a consecutive year plus three one-third year terms for the arming enhancements (§ 12022, subd. (a)(1)), and two one-year prior prison term enhancements (§ 667.5, subd. (b)).
In 2018, the Legislature enacted Senate Bill. No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which took effect on January 1, 2019. (Stats. 2018, ch. 1015.) Among other changes, Senate Bill 1437 amended section 189 to limit liability for murder under a felony murder or natural and probable consequences theory to a person who is the actual killer, who "with the intent to kill" aids and abets the actual killer, or who is a major participant in the underlying felony and acted with reckless indifference to human life. (Stats. 2018, ch. 1015, §§ 1(f), 3(e); see § 189, subd. (e).) Senate Bill 1437 permits an individual convicted of murder under these theories to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts under certain enumerated procedures. (Stats. 2018, ch. 1015, § 4; see § 1170.95.)
On February 22, 2019, appellant filed a pro se petition for resentencing of his voluntary manslaughter convictions under section 1170.95. The People filed an opposition to the petition, arguing that because he had been convicted of voluntary manslaughter and not murder, he failed to make a prima facie showing of entitlement to relief. The court appointed counsel to represent appellant. Through counsel, appellant filed a reply in which he argued for the first time that he was also eligible for resentencing as to his conviction for attempted murder.
On August 15, 2019, the trial court issued an order summarily denying the petition. This appeal followed.
DISCUSSION
I. Senate Bill 1437 and Section 1170.95
"Effective January 1, 2019, Senate Bill 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice 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).)" (People v. Turner (2020) 45 Cal.App.5th 428, 433 (Turner).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an 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, subds. (a)(1)-(a)(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).) II. Section 1170.95 Does Not Apply to Defendants Convicted of Voluntary Manslaughter
Appellant contends that where defendants are otherwise eligible for section 1170.95 relief because of the nature of the prosecution, they may qualify even if convicted of manslaughter by plea. He acknowledges, however, that the appellate courts that have considered this contention have come to the opposite conclusion.
Appellant's eligibility for relief under section 1170.95 is a question of law we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; Turner, supra, 45 Cal.App.5th at p. 435.) " ' "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." ' " (People v. Scott (2014) 58 Cal.4th 1415, 1421.) We first consider the statutory language, " ' "giving [it] a plain and commonsense meaning." ' " (Ibid.) " ' " 'When [that] language . . . is clear, we need go no further.' [Citation.] But where a statute's terms are unclear or ambiguous, we may 'look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.' " ' " (Ibid.)
Section 1170.95 allows "[a] person convicted of felony murder or murder under a natural and probable consequences theory" to file a petition "to have the petitioner's murder conviction vacated." (§ 1170.95, subd. (a), italics added.) Should the superior court find that the petitioner has made a prima facie showing of entitlement to relief and issue an order to show cause, it "shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence" (§ 1170.95, subd. (d)(1), italics added), unless the parties "waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated" (§ 1170.95, subd. (d)(2), italics added).
Relying on the italicized language above, the Second and Fourth District Courts of Appeal have concluded that a person convicted of manslaughter is not entitled to relief under section 1170.95's plain terms. (People v. Sanchez (2020) 48 Cal.App.5th 914, 917 (Sanchez); Turner, supra, 45 Cal.App.5th at p. 432; People v. Flores (2020) 44 Cal.App.5th 985, 993 (Flores); People v. Cervantes (2020) 44 Cal.App.5th 884, 887.) More recently, in People v. Paige (2020) 51 Cal.App.5th 194, this court reached the same conclusion, holding that the statute is expressly limited to murder convictions (id. at 202-204), and that its rational distinction satisfies equal protection (id. at 205-206). As we discuss further below, the same reasoning has been relied upon by several appellate courts to disallow persons convicted of attempted murder from eligibility for resentencing under section 1170.95 as a matter of law. (E.g., People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review granted Mar. 11, 2020, S259948 (Medrano); People v. Lopez (2019) 38 Cal.App.5th 1087, 1104, review granted Nov. 13, 2019, S258175 (Lopez).)
Appellant focuses on section 1170.95, subdivision (a)(2), which provides that one requirement for relief is that "[t]he 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." (Italics added.) Since the italicized language does not expressly require a defendant to have accepted a plea offer for murder, he urges it must be interpreted in his favor to apply to those defendants who pleaded to manslaughter to avoid being tried for murder based on a theory that Senate Bill 1437 abolished. To conclude otherwise would render the italicized language surplusage, since the Legislature was not required to include this additional language relating to accepted pleas to avoid such convictions.
Appellant's contentions are unpersuasive because they "place[] outsized importance on a single clause to the exclusion of the provision's other language. . . . [T]he remaining portions of section 1170.95 repeatedly and exclusively refer to murder, not manslaughter." (Flores, supra, 44 Cal.App.5th at p. 995; see Turner, supra, 45 Cal.App.5th at p. 436 [concluding such an interpretation "ignores the introductory language in . . . subdivision (a) that limits petitions to persons 'convicted of . . . murder.' "].) We agree that interpreting subdivision (a)(2) to include a person convicted of voluntary manslaughter after a plea runs counter to the statute's multiple, express references to murder convictions.
We also reject appellant's contention that a contrary reading renders the italicized language above surplusage. As the appellate court stated in Sanchez, supra, 48 Cal.App.5th at p. 919, "[s]pecifying 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. [Citation.] Such clarification 'may eliminate potential confusion and avoid the need to research extraneous legal sources to understand the statute's full meaning.' "
Appellant also contends that "the use of the word 'murder' in section 1170.95, subdivision (a), may properly be interpreted as reaching that crime's lesser included offenses — among them, manslaughter and attempted murder," asserting that a contrary reading produces an absurd result by granting sentencing relief to more culpable defendants. We disagree. The Legislature's exclusion of relief for persons convicted of lesser offenses such as voluntary manslaughter or attempted murder is not "absurd" because the Legislature reasonably could have concluded that reform was necessary only in cases of murder. (See Flores, supra, 44 Cal.App.5th at pp. 996-997 [rejecting the contention that an interpretation "limit[ing] [section 1170.95's] ameliorative benefits only to defendants convicted of murder" would be absurd].) Appellant relies on People v. King (1993) 5 Cal.4th 59, (King), People v. Jenkins (1995) 10 Cal.4th 234 (Jenkins), and In re R.G. (2019) 35 Cal.App.5th 141 (R.G.) to support his argument, but we find those cases distinguishable.
King involved a "sentencing anomaly" that resulted from a series of statutory amendments over the course of years concerning juveniles tried as adults for homicide offenses. (See People v. Cook (2015) 60 Cal.4th 922, 938, fn. 2, [summarizing King].) "[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." (Ibid, italics omitted.) The California Supreme Court held that the legislative history showed an intent that "both successful and intended first degree murderers under the age of 18" be eligible for CYA commitment. (King, supra, 5 Cal.4th at p. 67.) The court reasoned that when the Legislature amended the punishment for attempted murder, "[i]t did not intend a lesser included offense to have potentially harsher penal consequences than the greater offense." (Id. at p. 69.) The court determined that "[t]he 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." (Ibid.)
In considering an argument similar to appellant's regarding the crime of attempted murder, the appellate court in People v. Munoz (2019) 39 Cal.App.5th 738 review granted Nov. 26, 2019, S258234, observed that unlike the statutory amendments at issue in King, Senate Bill 1437's "plain language is not the result of a disjointed series of amendments over time . . . from which we might infer inadvertence or irrationality. Instead, the relevant provisions are contained in a single cohesive bill." (Munoz, at p. 759.) Moreover, "in King the effect of the series of amendments and judicial interpretations was stark: first degree murderers under 18 were eligible for CYA, whereas persons of the same age who committed attempted murder were not. Here, in contrast, Senate Bill 1437 does not mandate that persons convicted of attempted murder are punished more severely than persons convicted of murder. Attempted murderers are statutorily subject to a lesser, not a greater, penalty than murderers. Senate Bill 1437 does not require that attempted murderers receive a harsher sentence, or prohibit them from receiving a more lenient sentence, than murderers. On its face, Senate Bill 1437 does not present the same clear-cut distinction as in King." (Ibid., italics added.) We agree. In any event, "[t]he remedy for any 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." (Id. at p.760.)
Similarly, People v. Bullard (2020) 9 Cal.5th 94, 105 and People v. Jenkins, supra, 10 Cal.4th at p. 247, on which defendant also relies, involved the interpretation of legislation to avoid the consequence that less serious criminal conduct be punished more severely than more culpable conduct.
Appellant's reliance on R.G., supra, is similarly unavailing. In R.G., the appellate court concluded that section 1170.95 applies to juvenile offenders despite the statute's use of terms generally inapplicable in juvenile proceedings, such as "conviction" and "sentence." (R.G., supra, 35 Cal.App.5th at pp. 146, 151.) However, R.G.'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, rev. granted.) R.G. did not construe Senate Bill 1437 to apply to manslaughter or attempted murder.
The rule of lenity does not alter our conclusions. Lenity " 'generally requires that "ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt on questions of interpretation." ' " (People v. Nuckles (2013) 56 Cal.4th 601, 611.) This doctrine does not apply under the particular circumstances of this appeal because there are multiple, reasonable interpretations of a penal statute. (Ibid.) The rule of lenity applies only in cases of egregious ambiguity, where we can only guess what the Legislature intended. (Ibid.) No such uncertainty exists here. Accordingly, we decline to apply the rule of lenity to interpret subdivision (a)(2) in a manner at odds with the remainder of the statute. III. Section 1170.95 Does Not Apply to Defendants Convicted of Attempted Murder
Appellant asserts that while Senate Bill 1437 included no specific reference to attempted (as opposed to completed) murder, "as a matter of logic, the legislative changes should be fully applicable to both." He argues that, as applied to attempted murder, the aider of a non-homicide crime cannot have specifically intended to commit murder, and that "[g]iven the express legislative purpose of tying the crime of murder to direct individual culpability [citation], it would be anomalous to loosen those ties for attempted murder."
The People incorrectly assert that appellant forfeited any argument concerning his conviction for attempted murder because he raised the request in his reply brief and trial court's order did not address this request or this conviction. The trial court did reach this issue in its order, finding the argument to be unpersuasive.
The Courts of Appeal have reached different conclusions regarding whether Senate Bill 1437 applies to the crime of attempted murder in cases that are not yet final, and the issue is currently before the California Supreme Court. However, all of these courts are in accord that section 1170.95 provides no post-sentencing relief for the crime of attempted murder. (See, e.g., People v. Munoz, supra, 39 Cal.App.5th 738, 753, rev. granted Nov. 26, 2019, S258234 [does not apply]; Lopez, supra, 38 Cal.App.5th 1087 at p. 1103, rev. granted [does not apply]; People v. Dennis (2020) 47 Cal.App.5th 838, 844-847, review granted July 29, 2020, S262184 [does not apply]; People v. Alaybue (2020) 51 Cal.App.5th 207, 222 (Alaybue) [does not apply]; People v. Larios (2019) 42 Cal.App.5th 956, 961, 964-968, review granted Feb. 26, 2020, S259983 [Senate Bill 1437 applies to attempted murder but section 1170.95 provides no relief for the crime of attempted murder]; Medrano, supra, 42 Cal.App.5th 1001 at pp. 1013-1016 rev. granted [same]; People v. Sanchez (2020) 46 Cal.App.5th 637, 642-644, review granted June 10, 2020, S261768 [Senate Bill 1437 applies to attempted murder; no discussion of section 1170.95].) We agree and conclude that persons convicted of attempted murder are ineligible for resentencing under section 1170.95.
The California Supreme Court has framed the issue as follows: "Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine?" (Lopez, supra, 38 Cal.App.5th 1087 rev. granted; 2019 Cal.LEXIS 8414)
Appellant argues that applying section 1170.95 solely to murder convictions can only lead to an absurd result because it lessens sentences for defendants whose victims were actually killed while preserving sentences where the victims lived. Appellant may view this legislative choice as unwise, but that does not render the statutory scheme absurd. Moreover, "[i]n 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; see §§ 190, subds. (a), (e), 664, subd. (a), 3046, subd. (a)(1).) As discussed previously, appellant's absurdity claim falls short for the reasons expressed in Munoz, supra, 39 Cal.App.5th at p. 759, rev. granted, and other court decisions. We need not repeat them here.
Having concluded that section 1170.95 unambiguously applies only to petitioners convicted of murder, we need not examine in any depth appellant's arguments regarding legislative intent. As the Fourth District Court of Appeal explained in Turner, the legislative history of Senate Bill 1437 confirms that the Legislature did intend to limit eligibility for resentencing to persons convicted of murder. (Turner, supra, 45 Cal.App.5th at pp. 436-438.) We find Turner's analysis on this point persuasive, and appellant offers us no reason to depart from it. IV. Equal Protection
Appellant contends that if section 1170.95 provides retroactive relief to offenders convicted of murder but not those convicted of manslaughter and attempted murder, the law violates the equal protection clauses of the state and federal constitutions. We disagree.
The equal protection clause (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) requires those who are similarly situated with respect to a law's legitimate purposes be treated equally. (People v. Brown (2012) 54 Cal.4th 314, 328.) Thus, the first step in an equal protection analysis is to determine whether the defendant is similarly situated with those who are entitled to the statutory benefit. (Cervantes, supra, 44 Cal.App.5th at p. 888.)
Here persons convicted of attempted murder and manslaughter are not similarly situated with those convicted of murder. They are different crimes with different attendant punishments. When the Legislature reforms one area of the law, it is not required to reform other areas of the law. (Cervantes, supra, 44 Cal.App.5th at p. 888.) The Legislature's decision to reform a particular aspect of the law of murder does not require it to make wholesale changes in the law of homicide. The decision not to include attempted murder and manslaughter in section 1170.95 falls within the Legislature's "line-drawing" authority as a rational choice that is not constitutionally prohibited. (Id., at p. 888.)
DISPOSITION
The order denying appellant's section 1170.95 petition is affirmed.
/s/_________
SANCHEZ, J. We concur. /s/_________
HUMES, P.J. /s/_________
BANKE, J.