Opinion
C089647
03-29-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERT SISNEROS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STK-CR-FE-2002-0009102, SF086673B)
Defendant Robert Sisneros appeals the trial court's denial of his petition for resentencing under Penal Code section 1170.95, arguing that his 2004 conviction for attempted murder should have been eligible for relief under section 1170.95 and that failing to extend the statute's coverage to individuals convicted of attempted murder would violate equal protection. We disagree and will affirm the trial court's order.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On August 8, 2003, the People filed an amended information charging defendant in count 1 with murder (§ 187) and in count 2 with participation in a criminal street gang (§ 186.22, subds. (a) & (e)(1)). In conjunction with count 1, it was further alleged as special circumstances that defendant committed murder while lying in wait (§ 190.2, subd. (a)(15)) and to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). It also was alleged that defendant personally and intentionally discharged a firearm to proximately cause great bodily injury and death (§ 12022.53, subd. (d)) and committed the crime to promote criminal activity by street gang members (§ 186.22, subd. (b)(1)).
On April 21, 2004, pursuant to a plea agreement, the prosecution revised the information, amending count 1 to allege attempted murder (§§ 664, subds (a) & (f), 187), amending count 1 to include a firearm enhancement (§ 12022, subd. (a)(1)), and adding a charge of second degree robbery (§ 211; count 3). That same day, defendant pleaded guilty to amended counts 1 and 3, as well as unamended count 2. He also admitted sentencing enhancements pursuant to sections 186.22, subdivision (b)(1), and 12022, subdivision (a)(1).
At the May 3, 2004 sentencing hearing, the trial court imposed an aggregate prison sentence of 20 years.
In March 2019, defendant filed a petition for resentencing under section 1170.95. In his petition, defendant declared that he pleaded "guilty or no contest to 1st or 2nd degree murder in lieu of going to trial" on murder charges pursuant to the felony-murder rule or the natural and probable consequences doctrine, he "was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine," and he "could not now be convicted of murder" because of changes to section 188. The trial court denied the petition on the ground that defendant had not made a prima facie showing of relief because he had pleaded "guilty in a negotiated plea to charges that are not applicable to [] § 1170.95." Defendant timely appealed.
DISCUSSION
Defendant argues the trial court erred in summarily denying his request for resentencing after finding section 1170.95 applies only to persons convicted of murder. He reasons he is entitled to further proceedings because section 1170.95 applies to his long-final attempted murder conviction. He claims attempted murder is a qualifying offense in his case because he accepted a plea deal in lieu of a trial in which he could have been convicted of first or second degree murder. He also asserts that "the failure to apply section 1170.95 to petitioners who pleaded guilty to non-murder offenses after being charged with murder would violate equal protection." We join those courts that have found that the plain language of section 1170.95 renders it inapplicable to convictions other than for felony murder or murder under a natural and probable consequences theory.
" '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 (2020) 44 Cal.App.5th 985, 992 (Flores).)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted 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 in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f).) Senate Bill 1437 achieved these goals by amending sections 188 and 189, statutes pertaining to the crime of murder. The bill amended section 188 to provide: "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." (Stats. 2018, ch. 1015, § 2.) Section 189, subdivision (e) now provides that a participant in the perpetration or attempted perpetration of a felony specified in subdivision (a) in which death occurs 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." The legislation also added section 1170.95, which provides a mechanism for defendants "convicted of felony murder or murder under a natural and probable consequences theory" (§ 1170.95, subd. (a)) to file a petition in the sentencing court to have a murder conviction vacated and to be resentenced.
"[S]ection 1170.95 authorizes only a person who was '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 . . . .' (Id., subd. (a), italics added.) If the petitioner makes a prima facie showing that he or she is entitled to relief, the sentencing court 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 . . . .' (Id., subd. (d)(1), italics added.) In lieu of a resentencing hearing, the parties may stipulate that 'the petitioner is eligible to have his or her murder conviction vacated' and to be resentenced. (Id., subd. (d)(2), italics added.)" (Flores, supra, 44 Cal.App.5th at p. 993.)
Numerous courts 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. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105 [section 1170.95 authorizes petitions by those convicted of murder directed at that individual's murder conviction], review granted Nov. 13, 2019, S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 754-756 [the plain language of section 1170.95 does not encompass attempted murder], review granted Nov. 26, 2019, S258234; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1018 [same], review granted Mar. 11, 2020, S259948.)
We find no support for the assertion that section 1170.95, subdivision (a)(2)'s reference to individuals who "accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder" expands the scope of relief under section 1170.95 to individuals who pleaded guilty to a crime less than first or second degree murder. (See People v. Sanchez (2020) 48 Cal.App.5th 914, 918-919 [attempting to use the plea portion of subdivision (a)(2) to expand available relief ignores the plain language of the introduction " 'that limits petitions to persons "convicted of . . . murder" ' "]; Flores, supra, 44 Cal.App.5th at p. 995 [this clause must be read in context and "the remaining portions of section 1170.95 repeatedly and exclusively refer to murder, not manslaughter"]; People v. Turner (2020) 45 Cal.App.5th 428, 438 ["[v]iewed 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"].)
The Courts of Appeal have reached differing conclusions on whether Senate Bill 1437 (2017-2018 Reg. Sess.) applies to attempted murder convictions that are not final. (Compare People v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted Feb. 26, 2020, S259983 [applies], review granted Feb. 26, 2020, S259983, and People v. Sanchez (2020) 46 Cal.App.5th 637, 642-644 [applies], review granted June 10, 2020, S261768 (Sanchez), with People v. Munoz, supra, 39 Cal.App.5th at pp. 753-760 [does not apply], review granted Nov. 26, 2019, S258234, and Lopez, supra, 38 Cal.App.5th at pp. 1103-1105, 1113-1114 [does not apply], review granted Nov. 13, 2019, S258175.)
But, while these courts have disagreed on whether Senate Bill 1437 applies to nonfinal attempted murder convictions, they agree the relief provided by section 1170.95 is limited to convictions for murder. (Larios, supra, 42 Cal.App.5th at p. 961 ["Although we find ourselves in fundamental disagreement with the Lopez and Munoz decisions on the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder, we agree with their ultimate conclusion that section 1170.95 provides no relief for the crime of attempted murder"], review granted Feb. 26, 2020, S259983.) Thus, notwithstanding the split of authority, even the cases most favorable for individuals convicted of attempted murder— i.e., Larios and Sanchez, supra, 46 Cal.App.5th 637, review granted June 10, 2020, S261768—do not support defendant's interpretation of section 1170.95. Defendant acknowledges this, but asserts these cases were "wrong" on this point and that he is entitled to relief under section 1170.95. We disagree and decline defendant's invitation to extend the rationale of Larios and Sanchez to open section 1170.95's petition procedure to those defendants subject to a final judgment for attempted murder. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"].)
We also do not agree with defendant that interpreting the statute to disallow claims for relief for individuals convicted of anything less 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. (See, e.g., People v. Sanchez, supra, 48 Cal.App.5th at pp. 918-919 [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].)
Finally, 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, review granted Nov. 13, 2019, S258175.) "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." (People v. Medrano, supra, 42 Cal.App.5th at p. 1018, review granted Mar. 11, 2020, S259948.)
Defendant's conviction for attempted murder is not eligible for relief under section 1170.95.
DISPOSITION
The trial court's order denying defendant's request for resentencing is affirmed.
KRAUSE, J. We concur: MAURO, Acting P. J. RENNER, J.