Opinion
A157274
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO MIGUEL RAMOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 50901744)
Roberto Miguel Ramos was charged with murder, but in December 2009, he pleaded no contest to the lesser offense of voluntary manslaughter. Following the 2019 enactment of Senate Bill No. 1437 (Senate Bill 1437), which changed the law on murder liability under felony murder and natural and probable consequences theories, appellant filed a petition for resentencing, pursuant to Penal Code section 1170.95. Appellant appeals the trial court's denial of his petition, contending the court erred when it found that section 1170.95 applies only to murder convictions and is therefore inapplicable to his conviction for voluntary manslaughter. He also contends, to the extent that section 1170.95 is not applicable to his voluntary manslaughter conviction, the failure to extend its relief to those offenders who were not convicted of murder, but of a lesser homicide pursuant to a plea agreement entered into to avoid a felony murder conviction, violates the equal protection clauses of the state and federal Constitutions.
All further statutory references are to the Penal Code unless otherwise indicated.
We shall affirm the order denying the section 1170.95 petition.
PROCEDURAL BACKGROUND
On March 3, 2009, appellant, together with three codefendants, was charged by information with one count of murder (§ 187—count one); two counts of attempted second degree robbery (§§ 211/212.5, subd. (c), 664—counts three, four); one count of assault with a firearm (§ 245, subd. (a)(2)—count five); and one count of arson of a codefendant's vehicle (§ 451, subd. (d)—count six). One codefendant was also charged with one count of murder of a second person on the same occasion. The information further alleged, only as to that codefendant, that in the commission of the two murders and attempted robberies, he had "personally used, and intentionally and personally discharged" a firearm, causing the victims' deaths. (§ 12022.53, subds. (b), (c), (d).)
The specific facts underlying the charged offenses are not included in the record and are not relevant to the issues raised on appeal.
On June 29, 2009, appellant entered into a written plea agreement, pleading no contest to voluntary manslaughter (§ 192, subd. (a)), instead of the murder charged in count one, and also pleading no contest to the remaining non-murder counts. Appellant further admitted to being armed with a firearm during the voluntary manslaughter (§ 12022, subd. (a)).
On December 4, 2009, the trial court sentenced appellant to 14 years, 4 months in state prison, consisting of 12 years for voluntary manslaughter (the upper term of 11 years plus a consecutive term of 1 year for the arming enhancement), 8 months for each of the two attempted armed robberies, and 1 year for the assault. The court also imposed a concurrent two-year term for the arson.
On February 20, 2019, appellant filed a petition for resentencing in the trial court pursuant to section 1170.95, challenging his voluntary manslaughter conviction.
On March 19, 2019, the trial court summarily denied the petition for resentencing based on appellant's having pleaded no contest to the lesser charge of voluntary manslaughter in exchange for the dismissal of the murder charge against him.
On May 10, 2019, appellant filed a notice of appeal.
DISCUSSION
I. Senate Bill 1437 and Section 1170 .95
"On September 30, 2018, the Governor signed Senate Bill 1437, which, effective January 1, 2019, amended sections 188 and 189 and added section 1170.95 to the Penal Code, significantly modifying the law relating to accomplice liability for murder. In its uncodified findings and declarations the Legislature referred to SCR 48, 'which outlines the need for the statutory changes contained in this measure' (Stats. 2018, ch. 1015, § 1, subd. (c)), and stated, 'It is necessary 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.' (Id., § 1, subd. (f).) The Legislature also declared, 'Except as stated in subdivision (e) of Section 189 of the Penal Code [relating to first degree felony murder], a conviction for murder requires that a person act with malice aforethought. A person's culpability for murder must be premised upon that person's own actions and subjective mens rea.' (Id., § 1, subd. (g).)
"To effectuate this legislative purpose, [Senate Bill] 1437 added a crucial limitation to section 188's definition of malice for purposes of the crime of murder. New section 188, subdivision (a)(3), 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.'
"New section 189, subdivision (e), in turn, provides with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs—that is, as to those crimes that provide the basis for the charge of first degree felony murder—that the individual is liable for murder 'only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person 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.'
"Senate Bill 1437 also added section 1170.95, which permits those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of Senate Bill 1437's changes to sections 188 and 189. (§ 1170.95, subd. (a).) If the prosecutor does not stipulate to vacating the conviction and resentencing the petitioner, the People have the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also has the opportunity to present new or additional evidence in support of the resentencing request. (Ibid.)" (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1100 (Lopez), fns. Omitted, review granted Nov. 13, 2019, S258175.)
II. Applicability of Senate Bill 1437 to Appellant's
Voluntary Manslaughter Conviction
Appellant contends the court erred when it found the provisions of section 1170.95 inapplicable to him because he was convicted of voluntary manslaughter, not murder. He argues that certain language in section 1170.95 demonstrates that offenders like him, who accepted a plea offer to a lesser offense to murder to avoid a trial in which they could have been convicted of felony murder, are entitled to petition for resentencing. (See § 1170.95, subd. (a)(2).)
At our request, respondent filed a supplemental respondent's brief addressing this contention in greater depth, and appellant filed a supplemental reply brief.
The portion of section 1170.95 relevant to this contention provides:
"(a) A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of the following conditions apply:
"(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), italics added.)
According to appellant, because he was charged with felony murder but "accepted a plea offer in lieu of a trial at which [he] could be convicted for first degree or second degree murder," he is eligible for resentencing under section 1170.95. (§ 1170.95, subd. (a)(2).)
Appellant's statutory argument presents a question of law requiring us to independently consider the scope of Senate Bill 1437 to determine whether it provides relief to offenders like him who were convicted of a lesser offense, such as voluntary manslaughter, pursuant to a plea agreement. (People v. Turner (2020) 45 Cal.App.5th 428, 435 (Turner).)
"As with any question of statutory interpretation, 'our primary task is to give effect to the Legislature's intended purpose in enacting the law.' [Citation.] 'We begin with the statute's text, assigning the relevant terms their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme. [Citation.] Essential is whether our interpretation, as well as the consequences flowing therefrom, advances the Legislature's intended purpose. [Citation.] Where the statutory text admits of more than one reasonable interpretation, we may consider various extrinsic aids—including the legislative history—to the extent they are helpful in illuminating that purpose.' [Citation.]" (Turner, supra, 45 Cal.App.5th at p. 435, quoting People v. Hubbard (2016) 63 Cal.4th 378, 386.)
In several recent published opinions, appellate courts have addressed the related question of whether Senate Bill 1437 applies to offenders convicted of attempted murder. Two of those courts have concluded it does not. (See People v. Munoz (2019) 39 Cal.App.5th 738, 754 (Munoz) [Division Three of Second District concluded that Senate Bill 1437 "amended two statues, sections 188 and 189, and added section 1170.95," and the "plain language of each of these enactments compels the conclusion that Senate Bill 1437 pertains only to murder, not attempted murder"], review granted Nov. 26, 2019, S258234; Lopez, supra, 38 Cal.App.5th at p. 1104 [Division Seven of the Second District found that "there is nothing ambiguous in the language of Senate Bill 1437, which, in addition to the omission of any reference to attempted murder, expressly identifies its purpose as the need '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' "].)
In two other cases, the Fifth District found that Senate Bill 1437's abrogation of the natural and probable consequences doctrine does apply to attempted murder, but that offenders previously convicted of attempted murder are ineligible for resentencing pursuant to section 1170.95. (See People v. Medrano (2019) 42 Cal.App.5th 1001, 1015-1016, review granted Mar. 11 2020, S259948 [because "the crime of attempted murder is tethered to the murder statutes, i.e., it does not exist without them, there is no logical basis for applying section 188 to murder and treating the crime of attempted murder as being subject to an impliedly different and unspecified rule of law"; however, offenders previously convicted of attempted murder are ineligible for section 1170.95 relief]; People v. Larios (2019) 42 Cal.App.5th 956, 966, 970 [finding that "the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder," but agreeing with Munoz and Lopez courts that resentencing under section 1170.95 is limited to certain murder convictions and excludes all other convictions, including attempted murder]; see also People v. Sanchez (2020) ___ Cal.App.5th ___ .)
In addition, in another recent case, Division Six of the Second District held that section 1170.95 does not apply to an offender convicted of voluntary manslaughter. (People v. Cervantes (2020) 44 Cal.App.5th 884, 887 (Cervantes) ['The plain language of the statute is explicit; its scope is limited to murder convictions"].)
In this case, the question we face is somewhat different from the one addressed in Munoz, Lopez, Medrano, and Larios regarding whether Senate Bill 1437 extends to attempted murder, as well as the question addressed in People v. Cervantes regarding whether section 1170.95 is applicable to voluntary manslaughter in general. Here, the issue is not whether the Legislature intended Senate Bill 1437 to apply specifically to the crime of voluntary manslaughter, in addition to murder (and perhaps attempted murder). It is, instead, whether certain language in section 1170.95 indicates a legislative intent for an offender convicted of a lesser offense instead of murder, based on "accept[ance of] a plea offer in lieu of a trial at which [he or she] could be convicted for first degree or second degree murder" to be eligible to petition for resentencing. (§ 1170.95, subd. (a)(2).)
Two very recent cases from Division One of the Fourth District addressed this precise question, concluding that Senate Bill 1437 does not extend to offenders who were convicted of voluntary manslaughter pursuant to a plea agreement that they accepted in lieu of a trial for murder. (See Turner, supra, 45 Cal.App.5th at p. 439; People v. Flores (2020) 44 Cal.App.5th 985, 993 (Flores).) We find the Turner court's thorough and well-reasoned analysis directly relevant to the legal issue raised in the present case, and shall therefore quote from that opinion at length.
The appellant in Turner had been charged with murder, presumably based on a felony murder or natural and probable consequences theory, but agreed to plead guilty to voluntary manslaughter in lieu of a trial. (Turner, supra, 45 Cal.App.5th at pp. 434-435.) On appeal from the denial of the appellant's petition for resentencing under section 1170.95, the court rejected his claim that Senate Bill 1437 "extends to individuals who risked a murder conviction under a theory of felony murder or natural and probable consequences murder but agreed to plead guilty to manslaughter instead." (Ibid.)
The Turner court first observed that the language of section 1170.95 reflects a legislative intent to limit its provisions to offenders convicted of murder. "Subdivision (a) of 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 [his or her] murder conviction vacated and to be resentenced on any remaining counts.' (Italics added.) Likewise, section 1170.95, subdivision (d) defines the available relief as the vacating of a 'murder conviction.' (Italics added.) As the People suggest, the petitioning prerequisites and available relief indicate that the Legislature intended to limit relief to those convicted of murder under a theory of felony murder or natural-and-probable-consequences murder. Indeed, the Legislature declared in uncodified portions of Senate Bill 1437 that it sought 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder,' to limit circumstances in which 'murder liability' may be imposed. (Stats. 2018, ch.1015, § 1, subd. (f), italics added in both quotes; see People v. Valencia (2017) 3 Cal.5th 347, 362 [' "In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration." '].)
"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. [Citations.] For similar reasons, other courts have rejected claims that the statute extends relief to those convicted of attempted murder. [Citations.] These decisions reason that the statutory scheme unequivocally applies only to murder convictions. [Citations.]" (Turner, supra, 45 Cal.App.5th at pp. 435-436.)
Like appellant in the present case, the appellant in Turner pointed to the language in subdivision (a)(2) of section 1170.95 that refers to one of the conditions a petitioning offender must satisfy to argue that Senate Bill 1437 was intended to provide relief to offenders who accepted a plea offer in lieu of a trial at which they could be convicted of first or second degree murder under a felony murder or natural and probable consequences theory. (Turner, supra, 45 Cal.App.5th at p. 436.) Also like appellant, the appellant in Turner "emphasize[d] that this provision does not expressly require a defendant to have accepted a plea offer for murder." The court observed, however, that in making this argument, the appellant "ignore[d] the introductory language in section 1170.95, subdivision (a) that limits petitions to persons 'convicted of . . . murder.' (Italics added.)" (Ibid.; see also Flores, supra, 44 Cal.App.5th at p. 995 [rejecting appellant's interpretation of section 1170.95, which placed "outsized importance on a single clause to the exclusion of the provision's other language," which "repeatedly and exclusively refer to murder, not manslaughter"].)
We also observe that, in this case, when he filed his petition for resentencing, appellant used a preprinted form, in which he apparently whited out the preprinted words "second degree murder" in paragraph 2b and replaced them with the word, "MANSLAUGHTER." After this change, the paragraph read, "I pled guilty or no contest to 1st or MANSLAUGHTER [sic] in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine."
The Turner court further found that even if the appellant was correct that an ambiguity exists in the language of section 1170.95, subdivision (a)(2) regarding whether offenders must have accepted a plea offer to murder in lieu of a trial to be eligible to petition for resentencing, the legislative history of Senate Bill 1437 demonstrated that the appellant in that case was not entitled to relief. (Turner, supra, 45 Cal.App.5th at p. 436.) The court then provided numerous examples from the legislative history reflecting the Legislature's clear intent to limit Senate Bill 1437 to offenders convicted of either felony murder or murder under the natural and probable consequences doctrine. For instance, after Senate Bill 1437 was introduced in February 2018, the report of the Senate Committee on Public Safety "highlighted lengthy punishments for first and second degree murder and referenced the need 'to restore proportional responsibility in the application of California's murder statute.' [Citations.] In providing background on murder liability, the report explained that murder was 'the most egregious form of homicide,' required malice, and (critically) was distinguishable from manslaughter 'because the element of "malice" is required to be convicted of murder.' [Citation.]" (Turner at p. 437, fn. omitted.) Senate Bill 1437 eventually passed the Senate and amendments were made in the Assembly before it "reached a floor vote. Significant for our purposes, the Assembly revised the petitioning procedure now found in section 1170.95, subdivision (a). As passed by the Senate, the introductory clause provided: 'A defendant may submit a request to have his or her conviction vacated and petition for resentencing when all of the following conditions apply . . . .' [Citation.] The Assembly amended this language to its enacted form: 'A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and be resentenced on any remaining counts when all of the following conditions apply . . . .' [Citations.] The bill passed the Assembly; the Senate concurred in the Assembly amendments, and Senate Bill 1437 was signed into law." (Turner, at p. 438.)
Here, appellant states that he "is not prepared to argue that subdivision (a)(2) reflects an unambiguous intent to extend section 1170.95 relief to those who pleaded to a lesser crime to avoid a murder conviction. However, considering the statute as a whole reveals an arguable internal inconsistency."
The court drew "a few broad points from this detailed history. 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.)
Appellant points to other legislative history, specifically, the word "homicides" used in a provision of the uncodified legislative findings and declarations for Senate Bill 1437, as evidence of a legislative intent for section 1170.95 to apply to people convicted of homicide offenses besides murder. That provision states: "There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) Appellant's interpretation of this language would, however, "require us to impermissibly broaden the reach of section 1170.95, which does not mention either manslaughter or homicide. While ' "statements of purpose and intent in [an] 'uncodified section . . . properly may be utilized as an aid in construing' [a statute], . . . they 'do not confer power, determine rights, or enlarge the scope of [the] measure.' " ' [Citation.]" (Flores, supra, 44 Cal.App.5th at p. 995.)
The court in Turner then addressed the appellant's argument, also made by appellant in this case, that a construction excluding defendants who pleaded to lesser homicides from the ambit of section 1170.95 would lead to absurd results. (See, e.g., People v. Cook (2015) 60 Cal.4th 922, 927 [" 'a fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend"].) As appellant puts it, allowing someone who was convicted of voluntary manslaughter "to continue suffering a punishment for that offense who is only guilty under the current state of the law of a nonhomicide felony, such as robbery, but [who] was induced to plead guilty to the homicide to avoid a murder conviction under a now-abrogated theory of liability serves only to perpetuate the unfairness of the felony murder rule. It also maintains in place a punishment that is not commensurate with the defendant's level of culpability, the very outcome the Legislature was trying to avoid with the legislation in question. Such an outcome is, frankly, absurd."
The Turner court rejected a similar argument, explaining that its construction of section 1170.95 did not "produce absurdity by undermining the Legislature's goal to calibrate punishment to culpability. 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.' [Citation.]" (Turner, supra, 45 Cal.App.5th at p. 439.)
Finally, the court "acknowledge[d] that, in hindsight, Turner would have fared better by pleading guilty to murder. Because his liability would have been premised on [the] killing being a natural, probable, and foreseeable consequence of his participation in the assault, he could have petitioned for relief under section 1170.95. Instead he pleaded guilty to voluntary manslaughter, in the process admitting every element of that offense. [Citation.] [¶] . . . . By admitting voluntary manslaughter, Turner seems worse off for pleading guilty to a crime he likely could not have committed." (Turner, supra, 45 Cal.App.5th at pp. 438-440.)
The court in Turner further stated: "If there is a problem, it may lie in the adequacy of the factual basis for Turner's plea." (Turner, supra, 45 Cal.App.5th at p. 440 [noting that a bare statement that a factual basis exists, without inquiry, is inadequate], citing, inter alia, People v. Palmer (2013) 58 Cal.4th 110, 118; § 1192.5.) However, it further stated that the adequacy of the trial court's factual basis inquiry was not before it and, moreover, "[t]here is a split of authority as to whether a guilty plea forecloses an appellate challenge on the ground that the plea lacks a factual basis. [Citations.]" (Turner, at p. 441, fn. 9.) The court continued: "To the extent Turner has a remedy regarding any lack of factual basis, it lies in a petition for writ of habeas corpus, supported by transcripts of the preliminary hearing and plea colloquy. [Citation.]" (Id. at p. 441, fn. 10.)
Here, appellant likewise points to the unfairness of such a result. Like the court in Turner, we are sensitive to appellant's perception of the unfairness of his ineligibility for relief under section 1170.95. (See Turner, supra, 45 Cal.App.5th at p. 441.) But, in light of the statutory language and legislative history, we are compelled to conclude that Senate Bill 1437 and section 1170.95 are inapplicable to his situation. (See Turner, at pp. 441 ["In the wake of Senate Bill 1437, there may be other cases like Turner's. But defining crimes and prescribing punishment is the Legislature's role"]; cf. Munoz, supra, 39 Cal.App.5th at p. 760 ["The 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"].)
III. Equal Protection Claim
Appellant next contends the failure to extend section 1170.95 relief to those offenders who were not convicted of murder, but of a lesser homicide pursuant to a plea agreement to avoid a felony murder conviction, violates the equal protection clauses of the state and federal Constitutions. (U.S. Const., 14th Amend.; accord, Cal. Const., art. I, § 7, subd. (a).)
"Both the federal and California Constitutions guarantee that no person shall be 'den[ied] . . . the equal protection of the laws.' [Citations.] Equal protection of the laws simply means that similarly situated persons shall be treated in like manner unless there is a sufficiently good reason to treat them differently. [Citations.]
"The first step in evaluating any equal protection claim is determining whether there are two groups of individuals who are ' " 'similarly situated with respect to the legitimate purpose of the law' " ' but are being treated differently. [Citations.] If the two groups are not similarly situated or are not being treated differently, then there can be no equal protection violation.
"If such a classification of similarly situated individuals exists, a court must next ascertain whether the Legislature has a constitutionally sufficient reason to treat the groups differently. [Citation.] Unless the groups are defined by word or effect as members of a 'suspect classification' (such as race, national origin or gender) or the law affects a fundamental right (such as the right to vote or the right to marry), a law will be upheld as long as there is any 'rational relationship between the disparity in treatment and some legitimate governmental purpose.' [Citations.]" (Lopez, supra, 38 Cal.App.5th at p. 1108.)
Appellant makes the following abbreviated equal protection argument in his opening brief. He first states that offenders who pleaded guilty to voluntary manslaughter to avoid a felony murder conviction are similarly situated to offenders convicted of felony murder, where both convictions took place before Senate Bill 1437's effective date and where neither case could support a felony conviction under the new law, because "[b]oth prisoners are serving time for a homicide conviction that is not commensurate with their culpability" and Senate Bill 1437 stands for the proposition that " 'a person should be punished for his or her actions according to his or her own level of individual culpability' (Stats. 2018, ch. 1015, § 1)[.]" Appellant then asserts that "the state cannot establish a compelling interest justifying affording one such prisoner relief from his conviction while not affording the other similarly situated prisoner relief" and "likewise cannot establish that such a distinction is necessary."
The appellate courts in Lopez, Munoz, and Cervantes all rejected virtually identical equal protection claims, finding that offenders convicted of attempted murder or voluntary manslaughter are not similarly situated to offenders convicted of murder for purposes of obtaining relief under Senate Bill 1437 and the section 1170.95 petitioning process.
As the court in Cervantes explained, the appellant in that case "was convicted of voluntary manslaughter, a different crime from murder, which carries a different punishment. Normally, 'offenders who commit different crimes are not similarly situated' for equal protection purposes. [Citation.] '[O]nly those persons who are similarly situated are protected from invidiously disparate treatment.' [Citation.] [¶] . . . [¶] When the Legislature reforms one area of the law, it is not required to reform other areas of the law. [Citation.] It may elect to make reforms ' " 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' " ' [Citation.] Here the legislative focus was centered on the unfairness of the felony murder rule. The Legislature could rationally decide to change the law in this area and not be currently concerned with crimes not involved with that rule. [Citation.] It also could reasonably decide that the punishment for voluntary manslaughter was appropriate but the punishment for murder based on the felony murder rule could be excessive and reform was needed only there. [Citation.] Legislators in making this choice could also consider a variety of other factors including the number of prisoners subject to the change and impact on the 'administration of justice.' [Citation.]" (Cervantes, supra, 44 Cal.App.5th at p. 888; see also Munoz, supra, 39 Cal.App.5th at pp. 760-761; Lopez, supra, 38 Cal.App.5th at pp. 1107-1110.)
In his reply brief, appellant attempts to distinguish the appellants in cases like Cervantes, Lopez, and Munoz, arguing that treating offenders like him, "who were able to obtain a plea bargain for a manslaughter conviction to avoid a first-degree felony murder conviction[,] more harshly than other defendants who had similar roles in a robbery in which an accomplice killed someone is fundamentally unfair." However, as we have already discussed (see pt. II., ante), despite appellant's understandable fairness concerns, the different penal consequences for murder and voluntary manslaughter "necessarily mean, for purposes of sentencing reform," a person convicted of felony murder is not similarly situated to a person who has pleaded to the lesser offense of voluntary manslaughter, regardless of the reason for doing so. (Lopez, supra, 38 Cal.App.5th at p. 1110; see also Cervantes, supra, 44 Cal.App.5th at p. 887.)
For the reasons set forth in Cervantes, we find that offenders convicted of involuntary manslaughter and offenders convicted of murder are not similarly situated for purposes of Senate Bill 1437 and section 1170.95. (See Cervantes, supra, 44 Cal.App.5th at p. 887.) Because appellant has not established that the two groups are similarly situated, his " 'equal protection claim cannot succeed, and does not require further analysis.' [Citation.]" (People v. Morales (2019) 33 Cal.App.5th 800, 809.)
DISPOSITION
The order denying appellant's section 1170.95 petition is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.