Filed 8/20/20 P. v. Bayless CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072472
v. (Super.Ct.No. FSB1201452)
SHAWNA MARIE BAYLESS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. 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 M. Jones, 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, and Charles C. Ragland, James H.
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Flaherty III, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
In 2013, defendant and appellant, Shawna Marie Bayless, pursuant to a plea
agreement, pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and
two counts of first degree residential robbery (§ 211) after several amendments to the
information. In 2019, defendant filed a petition for resentencing pursuant to then newly
enacted section 1170.95, which the trial court denied. Defendant appealed.
On appeal, defendant argues that her petition was improperly denied because
section 1170.95 applies to defendants who pleaded guilty to voluntary manslaughter in
order to avoid a felony murder conviction. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND2
On the evening of April 2, 2012, defendant and her codefendant Gary Gallion met
her other codefendant, Laurie Cone. Laurie Cone was separated from her husband, the
victim, and was looking for someone to kill him in exchange for some of the victim’s
valuables. Cone gave Gallion a detailed layout of the victim’s home and provided
directions for entering the home. After this meeting, defendant dropped Gallion off “ ‘at
home’ ” near the victim’s residence. Gallion went to the victim’s home and was unable
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The facts of the underlying offense are taken from the report of the probation
officer. These facts have been abbreviated because they are not in dispute and are not at
issue in this appeal.
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to open a locked gate. Gallion then called defendant. Defendant, in turn, called Cone,
who told defendant how to open the locked gate. Defendant passed this information on to
Gallion. Shortly after, Cone called the police to report that she found the victim dead.
Police discovered the victim with his ankles and arms bound and severe blunt force
trauma to his head.
On April 25, 2012, the San Bernardino County District Attorney charged
defendant via information with first degree murder (§ 187, subd. (a)), first degree
residential robbery (§ 211) and first degree residential burglary (§ 459). A subsequent
amended information alleged defendant aided and abetted the murder within the meaning
of section 190.2, subdivision (a)(17)(A) and (G) because she was acting as an accomplice
in the alleged robbery and residential burglary when the victim was killed. The
information also included identical charges against the two codefendants, with Cone
receiving an additional three counts of solicitation of murder.
On February 7, 2013, pursuant to the plea agreement, the People added the charges
of voluntary manslaughter (§ 192, subd. (a)) and conspiracy to commit murder (§ 182,
subd. (a)(1)) to the information. Defendant thereafter pleaded guilty to voluntary
manslaughter (§ 192, subd. (a)), first degree residential robbery (§ 211), and conspiracy
to commit murder (§ 182, subd. (a)(1)). The factual basis for this plea was the
preliminary hearing transcript, which is not in the record. The plea agreement permitted
defendant to withdraw her plea to conspiracy to commit murder if she testified truthfully
at trial. Though the record is unclear, it appears she was allowed to withdraw her plea to
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conspiracy to commit murder at some point before sentencing. However, on May 1,
2013, at the sentencing hearing, the People orally added an additional charge of first
degree residential robbery (§ 211), to which defendant also pleaded guilty. Defendant
was sentenced to a total term of 13 years eight months in prison for one count of
voluntary manslaughter and two counts of first degree residential robbery.
On January 24, 2019, defendant petitioned the trial court for resentencing pursuant
to then newly enacted section 1170.95. The trial court denied defendant’s petition on
March 29, 2019.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court improperly denied defendant’s petition for
resentencing because section 1170.95, which offers relief to those convicted of murder
under the old felony-murder rule, should be read to also offer relief to defendants who
pleaded guilty to voluntary manslaughter in order to avoid a conviction for felony
murder. In particular, defendant argues that the text and legislative history of
section 1170.95 indicates that the Legislature intended to offer relief to those who
pleaded guilty to voluntary manslaughter. In the alternative, defendant argues that the
statute is ambiguous, and that reading it in the way defendant suggests resolves this
ambiguity and avoids violating the equal protection afforded by the United States
Constitution. We disagree with each of defendant’s arguments.
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A. Requests for Judicial Notice
As a preliminary matter, both parties have requested that this court take judicial
notice of certain documents. Defendant requests that we take judicial notice of the
opening brief filed with this court in an appeal involving her codefendants. The People
request that we take judicial notice of certain legislative history documents regarding the
debate, analysis, and passage of Senate Bill No. 1437 (Senate Bill 1437).
We deny defendant’s request. A court may take judicial notice of the “[r]ecords
of . . . any court of this state,” and may certainly take notice of its own records. (Evid.
Code, § 452, subd. (d).) However, defendant only offers her codefendants’ opening brief
to provide some background about the factual basis for her plea. The arguments and
factual background provided in briefing is not evidence. Even if they were, or if we
augmented the record as defendant requests we do in the alternative, the factual basis for
defendant’s conviction is not relevant to deciding the issues before this court. It is
uncontested that defendant did not actually perpetrate any killing and that defendant was
charged with murder under a felony murder or natural and probable consequences theory.
Any further factual background is not necessary to resolve whether she may petition for
resentencing under section 1170.95. Finally, even if some factual background was
necessary to place defendant’s petition in context, the record already contains sufficient
factual information for those purposes in the form of the report of the probation officer.
The People’s request for judicial notice is granted. A court may take judicial
notice of legislative history documents such as committee analyses, reports, and the
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historical texts of bills and statutes. (People v. Snyder (2000) 22 Cal.4th 304, 309, fn. 5;
People v. Ledesma (1997) 16 Cal.4th 90, 98, fn. 4; People v. Eubanks (1996) 14 Cal.4th
580, 591, fn. 3.) However, as discussed below, the legislative history of section 1170.95
is of limited utility given that we find it unnecessary to look further than the plain
meaning of the statute.
B. Section 1170.95 Does Not Provide Defendant with Relief
Senate Bill 1437 “which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the natural and probable
consequences doctrine by amending Penal Code sections 188 and 189, as well as by
adding Penal Code section 1170.95, which provides a procedure by which those
convicted of murder can seek retroactive relief if the changes in law would affect their
previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722.)
Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime, the natural and probable consequence of which was murder or attempted murder,
could be convicted of not only the target crime but also of the resulting murder or
attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35
Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed ‘ “for the criminal harms [the
defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’
[Citation.]” (R.G., at p. 144.)
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Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189,
which defines first and second degree murder, by, among other things, adding
subdivision (e). Under that subdivision, a participant in enumerated crimes is liable
under the felony-murder doctrine only if he or she was the actual killer; or, with the intent
to kill, aided and abetted the actual killer in commission of first degree murder; or was a
major participant in the underlying felony and acted with reckless indifference to human
life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749.)
Senate Bill 1437 also added section 1170.95, which states that “[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.” (§ 1170.95,
subd. (a).) An offender may file a section 1170.95 petition if he or she was prosecuted
under a felony murder or natural and probable consequences theory, but under amended
sections 188 or 189, could not have been convicted of first or second degree murder.
(§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is
eligible for and entitled to relief, the trial court must conduct a hearing to determine
whether to vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1).)
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“This appeal requires us to determine whether section 1170.95 permits persons
who were convicted of voluntary manslaughter to have their convictions vacated and to
be resentenced.” (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores).) “Statutory
interpretation is ‘an issue of law, which we review de novo.’ ” (Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183.) When
engaging in statutory construction “ ‘[i]f the language is clear, courts must generally
follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.’ [Citation.] But, ‘[i]f the statutory language
permits more than one reasonable interpretation, courts may consider other aids, such as
the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Flores, supra,
44 Cal.App.5th at p. 992.)
Following these principles, several recently decided cases have addressed each of
defendant’s arguments. Indeed, in Flores, supra, 44 Cal.App.5th 985, Division 1 of this
Court addressed a nearly identical appeal. In that case the defendant “was charged with
murder, but pleaded guilty to the lesser included offense of voluntary manslaughter.
Years later, she filed a petition to have her conviction vacated and to be resentenced
under the resentencing provision of Senate Bill No. 1437. The trial court denied Flores’s
petition on grounds that the resentencing provision is available only to qualifying persons
who were convicted of murder—not persons who were convicted of voluntary
manslaughter.” (Id. at p. 989.)
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After discussing the history of section 1170.95, the court turned to the plain
language of the statute as passed. The court noted that “[b]y its terms, section 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 . . . .’ ” (Flores, supra, 44
Cal.App.5th at pp. 992-993.) As the court reasoned, “[t]hrough its repeated and exclusive
references to murder, the plain language of section 1170.95 limits relief only to
qualifying persons who were convicted of murder. Section 1170.95 does not mention,
and thus does not provide relief to, persons convicted of manslaughter . . . .” (Flores, at
p. 993.)
Nevertheless, defendant here argues that though the statute’s initial language only
mentions those convicted of murder, subdivision (a)(2) states that in order to qualify for
relief a petitioner must have been “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.” (§ 1170.95, subd. (a)(2).)
Defendant argues that this language “creates a contextual ambiguity that indicates the
statute should be read as applying to plea agreements for other crimes entered into in lieu
of a murder conviction.”
However, the court in Flores specifically rejected a similar argument, stating that
this “interpretation of section 1170.95 . . . places outsized importance on a single clause
to the exclusion of the provision’s other language,” which “violates well-settled rules of
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construction, which caution that we must not ‘consider the statutory words in isolation;
we must read the language as it is placed in the code section, and in the context of the
entire statutory scheme.’ [Citation.]” (Flores, supra, 44 Cal.App.5th at p. 995.)
Moreover, the court noted that this clause does not necessarily create any ambiguity, as
“criminal defendants can, and do, plead guilty to the crime of murder,” for a variety of
reasons, including simply to avoid the public embarrassment, financial cost, and
emotional turmoil of a trial. (Ibid.) There is therefore no ambiguity or contradiction in
restricting the application of the statute to petitioners who were convicted of murder after
trial or pleaded guilty to murder to avoid trial and excluding those who pleaded to lesser
offenses to avoid trial.
Defendant argues that this interpretation raises issues of equal protection. At least
one court has already considered and rejected this argument. (See People v. Cervantes
(2020) 44 Cal.App.5th 884, 888 (Cervantes).) As that court reasoned, “[t]he 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. [Citation.] [Defendant] 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.” (Ibid.) Section 1170.95 therefore presents no
equal protection issue by treating those convicted of murder under the felony-murder rule
different from those who pleaded to voluntary manslaughter in order to avoid a trial for
murder.
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Nor does interpreting section 1170.95 to exclude those convicted of voluntary
manslaughter undermine the legislature’s goals. “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.) “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.” (Ibid.) “[T]he Legislature is afforded
considerable latitude in defining and setting the consequences of criminal offenses,”
(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887) and “[c]ourts routinely
decline to intrude upon the ‘broad discretion’ such policy judgments entail.” (People v.
Turnage (2012) 55 Cal.4th 62, 74.)
There is little doubt that this interpretation has the potential to present some
incongruous outcomes. Indeed, “we acknowledge that in hindsight, [defendant] would
have fared better by pleading guilty to murder. Because [her] liability would have been
premised on [the] killing being a natural, probable, and foreseeable consequence of [her]
participation . . . [s]he could have petitioned for relief under section 1170.95. Instead
[s]he pleaded guilty to voluntary manslaughter, in the process admitting every element of
that offense.” (People v. Turner (2020) 45 Cal.App.5th 428, 439 (Turner).) We also
acknowledge, as the court in Turner did, that “ ‘neither felony-murder nor the natural and
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probable consequences doctrine are theories on which one can commit voluntary
manslaughter.’ ” (Ibid.; see (People v. Price (2017) 8 Cal.App.5th 409, 430.) Thus,
“[b]y admitting voluntary manslaughter, [defendant] seems worse off for pleading guilty
to a crime [s]he likely could not have committed.” (Turner, at p. 440.)
We also agree with the court in Turner that “[i]f there is a problem, it may lie in
the adequacy of the factual basis for [defendant]’s plea. . . . Whatever method employed,
a bare statement that a factual basis exists, without inquiry, is inadequate.” (Turner,
supra, 45 Cal.App.5th at p 440.) Because the factual basis for defendant’s plea is not in
the record, and that issue is not before us, we do not address it further. However, we
echo our colleagues’ sentiment that trial courts must diligently inquire into the factual
basis of a plea to protect against “ ‘an especially high risk the defendant will plead to a
crime he or she did not commit and for which no factual basis can be established,’ ”
given “ ‘ “the disparity in punishment between conviction by plea and conviction at
trial.” ’ ” (Ibid.)
For that reason, we also echo our colleagues in Division 1 in expressing our
sympathy with defendant’s “perception that [s]he is in custody ‘for a crime [s]he did not
commit’ . . . .” (Turner, supra, 45 Cal.App.5th at p. 440.) However, it must be
remembered that defendant received the full benefit of her plea agreement. At the time of
her plea, she faced a murder conviction with all of its attendant consequences. Hindsight
based upon an unforeseen change in the law does not change that fact.
We conclude section 1170.95 does not provide defendant an avenue for relief.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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