Filed 9/23/20 P. v. Jackson CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300304
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. TA004327)
v.
KENJI DOMINIQUE
JACKSON,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen Joseph Webster, Jr., Judge.
Affirmed.
Jonathan E. Demson, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Idan Ivri, Acting
Supervising Deputy Attorney General, Allison H. Chung,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Kenji Dominique Jackson
pleaded guilty to manslaughter in 1990. In 2019, he
petitioned for resentencing pursuant to Penal Code section
1170.951 and Senate Bill No. 1437 (Senate Bill 1437), which
provides for vacatur of a defendant’s murder conviction and
resentencing if the defendant was convicted of murder under
a natural and probable consequences theory of murder, or
convicted of felony murder and the defendant (1) was not the
actual killer, (2) did not act with the intent to kill, and (3)
was not a major participant who acted with reckless
indifference to human life. (§§ 1170.95, subd. (a), 189, subd.
(e).). The trial court summarily denied the petition without
appointing counsel, finding that Jackson was ineligible for
resentencing as a matter of law because he was not convicted
of murder.
On appeal, Jackson contends that (1) the trial court
erred by summarily denying his petition without appointing
counsel and permitting briefing on the matter, in violation of
his state and federal rights to due process and assistance of
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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counsel, and (2) the trial court erred in ruling that he is
ineligible for resentencing under section 1170.95, in violation
of his rights to due process and equal protection, because the
statute provides relief for petitioners who pleaded guilty to
voluntary manslaughter but could have been convicted of
murder.
We conclude that the procedure set forth in section
1170.95 permits a trial court to deny a petition for
resentencing without first appointing counsel or considering
briefing by the parties where the record of conviction
establishes that the petitioner is ineligible for relief as a
matter of law. We further conclude that section 1170.95
does not apply to voluntary manslaughter pleas. We
therefore affirm the trial court’s order denying Jackson’s
petition for resentencing.
DISCUSSION
Entitlement to Counsel and Briefing
We have previously summarized the procedure a trial
court must follow when determining whether a petitioner
has made the initial prima facie showing of eligibility for
relief under section 1170.95, as set forth in People v. Verdugo
(2020) 44 Cal.App.5th 320, review granted Mar. 18, 2020,
S260493 (Verdugo):
First, “[u]nder section 1170.95, subdivision (b)(2), the
trial court determines if the petition is facially sufficient.
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(Verdugo, supra, 44 Cal.App.5th at pp. 327–328.) The trial
court verifies that the petition contains the basic information
required under subdivision (b)(1), and supplies any missing
information that can be ‘readily ascertained’ (§ 1170.95,
subd. (b)(2)). (Verdugo, supra, at p. 328.) The reference to
‘readily ascertained’ information indicates the legislature’s
intent that the trial court consider reliable, accessible
information—specifically the record of conviction. (Id. at
pp. 329–330.) The trial court may deny the petition without
prejudice if the petition is not facially sufficient. (Id. at
p. 328.)
“If a petition is facially sufficient, then, under section
1170.95, subdivision (c), the trial court next determines
whether the petitioner has made ‘a prima facie showing that
the petitioner falls within the provisions of this section.’ The
Verdugo court described this inquiry as ‘a preliminary
review of statutory eligibility for resentencing, a concept that
is a well-established part of the resentencing process under
Propositions 36 and 47.’ (Verdugo, supra, 44 Cal.App.5th at
p. 329.) ‘The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.’
(Ibid.) As in the section 1170.95, subdivision (b)(2) inquiry,
the trial court is permitted to review information that is
readily ascertained. (Verdugo, at p. 329.) Specifically, the
Verdugo court held that the trial court should review the
record of conviction, and ‘must at least examine the
complaint, information or indictment filed against the
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petitioner; the verdict form or factual basis documentation
for a negotiated plea; and the abstract of judgment.’ (Id. at
pp. 329–330; accord, People v. Lewis (2020) 43 Cal.App.5th,
1128, 1138–1139 [superior court properly relied on record of
conviction showing [petitioner] was convicted as direct aider
and abettor in determining he was not eligible for relief].) If
the trial court determines that the petitioner is not ineligible
for relief as a matter of law, it must appoint counsel, if
requested, and order briefing. (Verdugo, supra, 44
Cal.App.5th at p. 330.)” (People v. Torres (2020) 46
Cal.App.5th 1168, 1177–1178, review granted June 24, 2020,
S262011.)
In keeping with this procedure, Jackson is only entitled
to appointment of counsel and briefing if ineligibility cannot
be established as a matter of law, or, more specifically, if
section 1170.95 applies to convictions of voluntary
manslaughter pursuant to plea agreement.
The federal and state constitutions do not compel a
different conclusion in a collateral proceeding such as this.
(See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551, 556–
557 [no federal constitutional or due process right to
appointed counsel in state postconviction proceedings];
People v. Shipman (1965) 62 Cal.2d 226, 231–232; cf. In re
Barnett (2003) 31 Cal.4th 466, 474–475 [no constitutional
right to counsel under California constitution for seeking
collateral relief from a judgment of conviction via state
habeas corpus proceedings].)
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Voluntary Manslaughter Conviction by Plea
Agreement
Jackson contends that he is entitled to resentencing
because he falls within the category of defendants to which
section 1170.95 applies by its plain language, i.e., defendants
who have “accepted a plea offer in lieu of trial at which the
petitioner could be convicted of first degree or second degree
murder.” (§ 1170.95, subd. (a)(2).)
Jackson’s appeal raises a question of statutory
construction, which we review de novo. (People v. Morrison
(2019) 34 Cal.App.5th 980, 989.) “When we interpret
statutes, our primary task is to determine and give effect to
the Legislature’s purpose in enacting the law.” (In re H.W.
(2019) 6 Cal.5th 1068, 1073 (H.W.).) “‘We must look to the
statute’s words and give them their usual and ordinary
meaning. [Citation.] The statute’s plain meaning controls
the court’s interpretation unless its words are ambiguous.’
[Citations.]” (People v. Arias (2008) 45 Cal.4th 169, 177.)
The language of section 1170.95 makes plain that it
provides for vacatur of murder convictions, not convictions of
manslaughter, whether by trial or plea. “Murder” is
referenced throughout the statute. Indeed, subdivision (a)
itself states that individuals who have been “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 . . . .” (§ 1170.95, subd. (a), italics added.)
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Subdivision (d)(1) directs the court to “hold a hearing to
determine whether to vacate the murder conviction.” (Italics
added.) Subdivision (d)(2) allows the parties to “waive a
resentencing hearing and stipulate that the petitioner is
eligible to have his or her murder conviction vacated and for
resentencing.” (Italics added.) Seven additional references
to “murder” are interspersed throughout the statute. In
contrast, there are no references to manslaughter in the
statute. If the Legislature wished to provide relief to
defendants convicted of manslaughter or to provide for
vacatur of manslaughter convictions, it had numerous
opportunities to state so. The fact that the Legislature did
not leads us—as it has lead several other courts—to conclude
that it did not intend for section 1170.95 to apply to
convictions for manslaughter. (See People v. Cervantes
(2020) 44 Cal.App.5th 884 (Cervantes); People v. Flores
(2020) 44 Cal.App.5th 985 (Flores); People v. Turner (2020)
45 Cal.App.5th 428.)
Jackson’s reliance on the language of section 1170.95,
subdivision (a)(2) (relief available to defendants who have
“accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder”)
does not persuade us otherwise. Such an interpretation
“places outsized importance on a single clause to the
exclusion of the provision’s other language. This violates
well-settled rules of 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
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the context of the entire statutory scheme.’ [Citation.] As
discussed, the remaining portions of section 1170.95
repeatedly and exclusively refer to murder, not
manslaughter.” (Flores, supra, 44 Cal.App.5th at p. 995.)
Moreover, the language in section 1170.95, subdivision
(a)(2) stating that the statute applies to defendants who
have “accepted a plea offer in lieu of a trial at which the
petitioner could be convicted of first degree or second degree
murder” is not surplusage. Rather, it parallels that of
sections 1170.126, subdivision (b) (providing for resentencing
for defendants serving a life term for a three strikes
convictions) and 1170.18, subdivision (a) (providing for
resentencing for prison inmates serving a term for a felony
that became a misdemeanor), stating that those sections
apply to anyone who is serving a sentence “whether by trial
or plea.” As Division One of the Fourth District Court of
Appeal has recognized, defendants can, and do, plead guilty
to murder for a variety of reasons. (Flores, supra, 44
Cal.App.5th at p. 995.)
We also reject Jackson’s argument that we should
broaden our interpretation of section 1170.95 to reach an
offense not expressly listed in the statute, as our Supreme
Court did in People v. Page (2017) 3 Cal.5th 1175 (Page).
Page concerned Proposition 47’s reclassification of a variety
of grand theft crimes to petty theft offenses. (People v.
Gutierrez (2018) 20 Cal.App.5th 847, 854.) Proposition 47
amended and added several statutory provisions, including
section 490.2, which provides that “obtaining any property
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by theft” is petty theft, an offense punishable as a
misdemeanor if the value of the property taken is $950 or
less. (§ 490.2, subd. (a); Page, supra, at p. 1179.) In Page,
the Supreme Court addressed whether section 490.2 applied
to Vehicle Code section 10851 (Page, supra, at pp. 1181–
1188), which punished two distinct forms of misconduct, only
one of which was a species of “theft.” (Id. at p. 1182). Page
held that section 490.2 applied to the “theft” form of offense
under Vehicle Code section 10851. (Id. at p. 1183.) The
reasoning of the Supreme Court in Page has no application
to the interpretation of section 1170.95, as the statute does
not refer generally to the category “homicide,” which
encompasses murder and manslaughter, nor is there an
ambiguity created by the interaction of section 1170.95 and
section 192, which defines the conduct that constitutes
manslaughter. Page is inapposite.
Finally, Jackson argues that denying relief to
defendants convicted of manslaughter under section 1170.95
violates equal protection and due process principles. We
reject his constitutional arguments as well.
Both the United States Constitution and California
Constitution guarantee that no person shall be denied equal
protection under the laws. (U.S. Const., 14th Amend.; see
Cal. Const., art. I, § 7.) Equal protection requires that
“persons similarly situated regarding the legitimate purpose
of the law should receive like treatment.” (People v. Morales
(2016) 63 Cal.4th 399, 408.) The first step in evaluating any
equal protection claim is determining whether there are two
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groups of individuals that are similarly situated but treated
differently under the laws. (Cervantes, supra, 44
Cal.App.5th at p. 888.) Defendants convicted of different
crimes are not similarly situated for equal protection
purposes. (Ibid., citing People v. Morales (2019) 33
Cal.App.5th 800, 808.)
Voluntary manslaughter and murder are different
crimes and carry different punishments. (Cervantes, supra,
44 Cal.App.5th at p. 888.) The punishment for first degree
murder is death, life without parole, or 25 years to life in
prison. (§ 190, subd. (a).) Second degree murder carries a
penalty of 15 years to life. (Ibid.) Voluntary manslaughter,
by contrast, is punishable by a term of 3, 6, or 11 years.
(§ 193, subd. (a).) The differences in penal consequences
make clear that individuals convicted of voluntary
manslaughter are not similarly situated to persons convicted
of murder. (See People v. Munoz (2019) 39 Cal.App.5th 738,
761, review granted Nov. 26, 2019, S258234 [persons
convicted of attempted murder not similarly situated to
those convicted of murder in light of the disparity in
penalties].) Because Jackson is not similarly situated to
petitioners who qualify for relief under section 1170.95,
there is no violation of equal protection principles.
Finally, with respect to Jackson’s due process
argument, “‘[s]ubstantive due process requires a rational
relationship between the objectives of a legislative
enactment and the methods chosen to achieve those
objectives.’ [Citation.]” (Cervantes, supra, 44 Cal.App.5th at
10
p. 889.) “Senate Bill 1437 was enacted 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.’ (Stats. 2018, ch. 1015, § 1, subd.
(f).)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) It
accomplishes that purpose through section 1170.95 by
providing relief to defendants who meet those criteria and
were convicted of murder.
DISPOSITION
The trial court’s order denying Jackson’s petition for
resentencing under section 1170.95 is affirmed.
MOOR, J.
We concur:
RUBIN, P. J. KIM, J.
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