Filed 10/1/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138408)
v.
DAVAUGHN LOVE,
Defendant and Appellant.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Eleanor J. Hunter, Judge.
Affirmed.
Kelly C. Martin, 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, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
******
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part II of the Discussion.
In 2018, Senate Bill 1437 amended the statutes defining
the crime of murder to eliminate, in all but one context, liability
for murder based on the so-called “natural and probable
consequences theory.” (Pen. Code, §§ 188, 189.)1 Under that
theory, a defendant may be held liable for murder if (1) he aids
and abets some lesser crime, (2) the person he aided and abetted
commits a murder, and (3) murder was a natural and probable
consequence of the lesser crime. (People v. Prettyman (1996) 14
Cal.4th 248, 262 (Prettyman), superseded in part by Sen. Bill No.
1437.)
But did Senate Bill 1437 also eliminate the natural and
probable consequences theory of liability for attempted murder?
So far, the Courts of Appeal have split three ways on the
question. The first group has held that Senate Bill 1437 did not
eliminate the natural and probable consequences theory for
attempted murder at all—either prospectively or retroactively.
(People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-1093, review
granted Nov. 13, 2019, S258175 (Lopez); People v. Munoz (2019)
39 Cal.App.5th 738, 754, review granted Nov. 26, 2019, S258234
(Munoz); People v. Dennis (2020) 47 Cal.App.5th 838, 841, review
granted July 29, 2020, S262184; People v. Alaybue (2020) 51
Cal.App.5th 207, 222.) The second group has held that Senate
Bill 1437 eliminated the natural and probable consequences
theory for attempted murder prospectively, but not retroactively.
(People v. Larios (2019) 42 Cal.App.5th 956, 966, 969-970, review
granted Feb. 26, 2020, S259983 (Larios); People v. Sanchez (2020)
46 Cal.App.5th 637, 642, review granted June 10, 2020, S261768
(Sanchez).) The last group has held that Senate Bill 1437
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
eliminated the natural and probable consequences theory for
attempted murder prospectively and retroactively as to nonfinal
convictions, but not retroactively as to final convictions. (People
v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019, review
granted Mar. 11, 2020, S259948 (Medrano).)
Our Supreme Court has granted review on this question,
and will soon provide guidance. We nevertheless publish because
our analysis of the issue differs enough from the rationales of the
other decisions that it may provide an additional perspective for
the Supreme Court to consider. Specifically, we hold that Senate
Bill 1437 does not eliminate the natural and probable
consequences theory for attempted murder on any basis—either
prospectively or retroactively. In reaching this holding, we
conclude that (1) Senate Bill 1437’s inapplicability to the crime of
attempted murder on a prospective basis is not clear from its
text, but is clear from its legislative history and not contradicted
by any of the other canons of statutory construction, and (2) even
if Senate Bill 1437 applied prospectively to the crime of
attempted murder, that application would not have any
retroactive effect because the bill’s statutory mechanism for
providing retroactive relief—namely, section 1170.95—limits
relief to “convictions” for “murder,” which rebuts the usual
presumption that ameliorative changes in the law apply
retroactively to nonfinal convictions (In re Estrada (1965) 63
Cal.2d 740, 745-746 (Estrada)).
For these reasons, and because we reject a further
challenge to the sentence at issue in this case in the unpublished
portion of this opinion, we affirm the order denying relief under
Senate Bill 1437 as well as the judgment.
3
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
In mid-August 2015, Davaughn Love (defendant) drove a
fellow gang member (Antwoine Vaughn) into a rival gang’s
territory in the midst of a retaliation campaign against that rival
gang. They enlisted a third gang member to follow them in a
separate car and videotape their anticipated exploits. Once they
arrived in the rival gang’s territory, “[defendant] stopped the car,
and Vaughn got out and approached a man standing on the
sidewalk with a woman and two children. After exchanging a few
words, Vaughn pulled out a gun and opened fire on the man’s
back. Vaughn continued ‘shooting wildly’ as the man tried to flee
into a nearby intersection. All in all, 10 bullets hit the man
(causing injuries to his head, chest, leg and hand), and three
bullets struck a nearby car that was driving through the
intersection. Vaughn got back into the car, and [defendant] drove
away.” The next day, defendant sent a text message to Vaughn,
reminding him to “move” the gun.
II. Procedural Background
A. Initial trial court proceedings
The People charged defendant with (1) the attempted
murder of the man Vaughn shot 10 times (§§ 187, subd. (a), 664,
subd. (a)), and (2) shooting at the occupied vehicle struck by
another three bullets Vaughn shot (§ 246). The People further
alleged that these crimes were committed “for the benefit of, at
the direction of, or in association with” a criminal street gang
2 We draw these facts from our prior opinion. (People v.
Vaughn (April 5, 2018, B277941) [nonpub. opn.].)
4
(§ 186.22, subd. (b)(4)), and that a principal had discharged a
firearm and caused great bodily injury (§ 12022.53, subd. (d)).3
The trial court instructed the jury that defendant could be
held liable for attempted murder (1) if he aided and abetted
Vaughn in committing the attempted murder, (2) if he aided and
abetted Vaughn in committing an “assault” and murder was a
natural and probable consequence of that assault, or (3) if he and
Vaughn conspired to commit an assault and murder was a
foreseeable consequence of that conspiracy.
The jury convicted defendant of attempted murder and
shooting at an occupied vehicle. The jury also found the gang and
firearm allegations to be true.
The trial court sentenced defendant to state prison for life,
with a minimum term of 47 years. For the attempted murder,
the court sentenced defendant to life in prison with a minimum
term of 32 years, with the minimum comprised of 7 years for the
attempted murder itself plus an additional 25 years for the
firearm enhancement. For shooting at an occupied vehicle, the
court imposed a consecutive life term with a minimum term of 15
years.
B. First appeal
Defendant appealed his conviction and sentence. In an
unpublished opinion issued on April 5, 2018, we affirmed
defendant’s conviction and sentence but remanded the matter so
3 The People also charged Vaughn with several crimes, and
alleged that defendant had suffered two prior “strike” convictions
under our Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12,
subds. (a)-(d)) and had served one prior prison term (§ 667.5,
subd. (b)), but these further allegations are not germane to the
issues on appeal.
5
that the trial court could determine whether to exercise its newly
conferred discretion to strike the firearm enhancement.
Defendant petitioned for review before the Supreme Court,
and the Supreme Court granted review and remanded the matter
to us with directions to consider whether to apply the newly
enacted Senate Bill 1437.
After entertaining further briefing on the applicability of
Senate Bill 1437, we issued an unpublished opinion on May 30,
2019 that (1) affirmed defendant’s convictions, (2) remanded the
matter for the trial court to consider whether to strike the
firearm enhancement, and (3) denied any relief pursuant to
Senate Bill 1437 without prejudice to defendant filing a petition
for relief with the trial court pursuant to the mechanism set forth
in section 1170.95 for seeking relief under the bill.
C. Proceedings on remand
1. Petition for relief under section 1170.95
On September 18, 2019 and October 7, 2019, defendant
filed two separate petitions seeking to vacate his attempted
murder conviction on the basis of section 1170.95.
On October 22, 2019, the trial court denied his motions on
the ground that section 1170.95 does not apply to convictions for
attempted murder.
2. Resentencing
On October 24, 2019, defendant filed a motion asking the
trial court to exercise its newly conferred discretion to strike the
25-year firearm enhancement on the attempted murder count. In
that motion, defendant urged that “substantial evidence”
supported a finding that he “intended only to aid and abet a
physical assault, not a shooting,” and that his lack of personal
6
intent to “kill anyone” warranted a 25-year reduction in his
sentence.
The trial court held a hearing on November 20, 2019. After
recounting the facts of the case, the court expressed its
“confiden[ce]” that, “[b]ased on the totality of the evidence that
was presented in this case,” defendant “knew what was going on,
that it wasn’t just merely going to beat up” a rival gang member.
The court reasoned: “You don’t . . . bring a gun to go beat
somebody up. When you’re going into rival gang territory, you’re
armed, and [defendant] was integral to the shooting.” Given
defendant’s “integral” role, the court declined to “exercise its
discretion to strike the gun allegation.”
D. This appeal
On November 20, 2019, defendant filed a notice of appeal
from the order denying his petitions for relief under section
1170.95. On May 6, 2020, we issued an order construing that
notice of appeal also to encompass the trial court’s judgment that
declined to strike the firearm enhancement.
DISCUSSION
I. Denial of Relief under Senate Bill 1437
Defendant argues that he is entitled to have his attempted
murder conviction vacated because it possibly rests on a natural
and probable consequences theory. Resolving this argument
requires us to examine two questions: (1) Does Senate Bill 1437
prospectively apply to the crime of attempted murder, and thus
bar a conviction that potentially rests on the natural and
probable consequences theory, and, if so, (2) Does this prospective
change in the law also apply retroactively to a conviction, like
defendant’s, that is not yet final? Both of these questions turn on
questions of statutory interpretation and constitutional law, and
7
hence are questions we review de novo. (John v. Superior Court
(2016) 63 Cal.4th 91, 95 [statutory interpretation]; People v.
Zamudio (2008) 43 Cal.4th 327, 342 [constitutional
interpretation].) For the reasons set forth below, we conclude
that the answer to these two questions is “no.”
A. Does Senate Bill 1437 preclude natural and
probable consequences liability for attempted murder on a
prospective basis?
1. As a matter of its plain language?
When determining the meaning of a statute, the first—and
potentially last—place to look is its plain language. (Metcalf v.
County of San Joaquin (2008) 42 Cal.4th 1121, 1131.)
As far as modifying the criminal law on a prospective basis,
Senate Bill 1437 modified two statutes: Section 188 and section
189. Elaborating on the definition of murder as “the unlawful
killing of a human being . . . with malice aforethought” (§ 187,
subd. (a)), section 188 provides that “malice may be express or
implied” (§ 188, subd. (a)). Senate Bill 1437 added subdivision
(a)(3) to section 188, which now states:
“Except as stated in [section 189, subdivision (e)], 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.”
(§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Senate Bill 1437
also added subdivisions (e) and (f) to section 189. (Stats. 2018,
ch. 1015, § 3.) As the above quoted text of section 188 indicates,
section 189, subdivision (e) sets forth the exceptions—and there
are three of them—to section 188’s newly created “no imputation
of malice” rule: (1) when the defendant “was the actual killer,” (2)
when the defendant, “with the intent to kill,” “aided” and
8
“abetted” the actual killer, or (3) when the defendant “was a
major participant in the underlying felony and acted with
reckless indifference to human life . . . .” (§ 189, subd. (e).) And
these three exceptions themselves have an exception: Imputation
of malice is still permissible if “the [murder] victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known” that fact. (§ 189, subd. (f).)
Do these changes to the plain language of section 188 and
189 defining the crime of murder apply with equal force to the
crime of attempted murder? We conclude that the text itself is
unclear.
On the one hand, one can reasonably argue that the plain
language of these amendments dictates their application to the
crime of attempted murder. Section 188, subdivision (a)(3)
plainly states that “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).) Thus, Senate Bill 1437 could be read as requiring that
murder convictions rest on the personal intent of the defendant,
and not on theories that hold a defendant “vicarious[ly] liab[le]”
for the acts or intent of others. (Larios, supra, 42 Cal.App.5th at
pp. 966-967.) Our Supreme Court has defined liability under a
natural and probable consequences theory as having five
elements—namely, that (1-3) the defendant aided and abetted
the actual perpetrator of a predicate crime, and did so with
knowledge of the perpetrator’s unlawful purpose and with the
intent to “commit[], encourag[e], or facilitate[]” that offense, (4)
the actual perpetrator “committed an offense other than [the
predicate offense],” and (5) “the offense committed by the [actual
perpetrator] was a natural and probable consequence of the
9
[predicate] crime that . . . defendant aided and abetted.”
(Prettyman, supra, 14 Cal.4th at p. 262.) The fifth element is
“judged objectively” by asking “‘“whether a reasonable person in
the defendant’s position would have or should have known that
the charged offense was a reasonably foreseeable consequence of
the act aided and abetted.”’” (People v. Chiu (2014) 59 Cal.4th
155, 161-162 (Chiu), superseded in part by Sen. Bill No. 1437.)
Because a defendant’s liability for the further crime under the
natural and probable consequences theory turns on whether that
further crime was “reasonably foreseeable” to a “reasonable
person,” that liability does not turn on the personal intent of the
defendant or the actual perpetrator as to that further crime.4
(Accord, Lopez, 38 Cal.App.5th at pp. 1102-1103.) As such,
liability for that further crime under the natural and probable
4 The cases also seem to disagree over whether section 188’s
prohibition against “imput[ing]” malice operates to foreclose
application of the natural and probable consequences theory.
Some cases say malice is “imputed” only when a theory imports
the actual perpetrator’s subjective intent to the defendant (Lopez,
supra, 38 Cal.App.5th at p. 1106), while others say that Senate
Bill 1437’s bar on imputation applies whenever liability is
vicarious, even if it does not entail transferring intent from one
actor to another (Larios, supra, 42 Cal.App.5th at p. 966;
Medrano, supra, 42 Cal.App.5th at pp. 1013-1014). To us, this
debate over the meaning of the word “impute” is unhelpful to
assessing whether Senate Bill 1437 applies to the crime of
attempted murder. That is because Senate Bill 1437’s use of the
word “impute” indisputably bars the use of the natural and
probable consequences theory as to murder. Because the natural
and probable consequences theory functions the same for crimes
of murder and attempted murder, the use of the word “impute”
cannot be what justifies the application of Senate Bill 1437 to
murder but not attempted murder.
10
consequences theory is “vicarious in nature.” (Chiu, at p. 164.)
Because the crime of attempted murder necessarily looks to—and
thus ostensibly borrows from—the elements of the crime of
(completed) murder (§ 21a), Senate Bill 1437’s textually express
abrogation of vicarious liability for murder ostensibly applies to
attempted murder as well.
On the other hand, one can reasonably argue that the plain
language of Senate Bill 1437’s amendments to sections 188 and
189 do not dictate their application to the crime of attempted
murder. If our Legislature’s goal was to eliminate vicarious
liability for the crime of attempted murder, it picked a rather
circuitous way of doing so: Rather than amend the statutes
defining attempt (§ 21a) or aiding and abetting liability (§ 31),
Senate Bill 1437 modified the definition of the crime of “murder”
by adding a “no imputation” rule for murder that should
nevertheless be read to apply to all other crimes premised on an
imputation of malice. As between a construction of Section Bill
1437’s amendments that requires multiple steps and inferences—
and a more straightforward construction that Senate Bill 1437
amended the crime of murder alone and thus applies to murder
alone—the simplest construction is often the more reasonable
one: “‘[T]he principle of Occam’s razor—that the simplest of
competing theories should be preferred over more complex and
subtle ones—is as valid juridically as it is scientifically.’
[Citation.].” (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40
Cal.4th 1313, 1328, fn. 10.) Indeed, courts have uniformly
declined to read Senate Bill 1437’s “no imputation of malice” rule
to apply to voluntary manslaughter, even though that crime—
like murder—requires proof of malice (although, for voluntary
manslaughter, that malice is deemed, as a legal matter, to be
11
negated due to heat of passion or imperfect self-defense). (People
v. Turner (2020) 45 Cal.App.5th 428, 438; People v. Sanchez
(2020) 48 Cal.App.5th 914, 916, 921; People v. Paige (2020) 51
Cal.App.5th 194, 201; People v. Cervantes (2020) 44 Cal.App.5th
884, 888-889; see also People v. Rios (2000) 23 Cal.4th 450, 460
[intentional killing becomes voluntary manslaughter because
heat of passion is deemed to negate malice]; In re Christian S.
(1994) 7 Cal.4th 768, 773 [intentional killing becomes voluntary
manslaughter because imperfect self-defense is deemed to negate
malice].) Notably, Senate Bill 1437 itself does not erect an
across-the-board “no imputation of malice” rule because it excepts
crimes where the victim is known or reasonably suspected to be a
peace officer. (§ 189, subd. (f).) What is more, the crime of
attempt does not incorporate all elements of the complete crime
lock, stock and barrel: To the contrary, attempt requires only a
specific intent to commit the complete crime and the taking of “‘“a
direct but ineffectual act toward accomplishing”’” the intended
crime. (People v. Perez (2010) 50 Cal.4th 222, 229.) Based on
these arguments, Senate Bill 1437’s amendment to the murder
statute would not inevitably affect the crime of attempted
murder.
The ambiguity in Senate Bill 1437’s plain language is
epitomized by the very split of authority on this issue: Some
cases say that Senate Bill 1437 does not reach attempted murder
because our Legislature did not expressly include the crime (e.g.,
Lopez, supra, 38 Cal.App.5th at p. 1104), while other cases say
that Senate Bill 1437 reaches attempted murder because our
Legislature did not expressly exclude it (e.g., Medrano, supra, 42
Cal.App.5th at p. 1015).
12
2. As a matter of legislative history?
Where, as here, the plain language of a statute is
ambiguous, courts look next to the statute’s legislative history for
clues as to the statute’s purpose. (ZB, N.A. v. Superior Court
(2019) 8 Cal.5th 175, 189.)
In our view, Senate Bill 1437’s legislative history pretty
clearly establishes that its amendments apply to the crime of
murder and to that crime alone. The best evidence of this is in
the preamble to Senate Bill 1437 itself, which declares our
Legislature’s finding that “[i]t 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.” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.) That
preamble also declares that “[e]xcept as stated in subdivision (e)
of Section 189 . . . , a conviction for murder requires that a person
act with malice aforethought. A person’s culpability for murder
must be premised on that person’s own actions and subjective
mens rea.” (Id., § 1, subd. (g), italics added.) These statements of
purpose leave little doubt that our Legislature was focused on
eliminating vicarious liability for the crime of murder, and not
lesser crimes. (Accord, Lopez, supra, 38 Cal.App.5th at p. 1104
[so noting]; Munoz, supra, 39 Cal.App.5th at p. 757 [same].)
This more modest focus is buttressed by various reports
presented to our Legislature in the course of its consideration of
what became Senate Bill 1437. A June 26, 2018 Report from the
Assembly Committee on Public Safety summarized the bill as
“limit[ing] liability for individuals based on a theory of 1st or 2nd
13
degree felony murder.” (Assem. Com. on Public Safety, Rep. on
Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25,
2018, p. 1, italics added.) An April 23, 2018 Report of the Senate
Committee on Public Safety also discussed the bill in terms of its
effect on first and second degree murder convictions. (Sen. Com.
on Public Safety, Rep. on Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) as introduced on February 16, 2018, pp. 5-7.) And a May
14, 2018 Report from the Senate Committee on Appropriations
noted that the bill “would . . . [p]rohibit a participant or
conspirator in the perpetration or attempted perpetration of one
of the specified first-degree murder felonies in which a death
occurs from being liable for murder” absent personal culpability,
and went on to analyze the cost—to the courts—of revisiting
convictions for first and second degree murder; the Report said
nothing at all about attempted murder. (Sen. Com. on
Appropriations, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.)
as introduced on Feb. 16, 2018, italics added.)
3. Under the canons of statutory construction?
Where the statutory language is ambiguous, courts may
also employ the “interpretative canons” that can function as a
sixth sense-type “guide” in our inquiry into legislative intent.
(People v. Valencia (2017) 3 Cal.5th 347, 381.) Two of those
canons are potentially relevant here.
a. Under the canon of constitutional
avoidance?
The canon of constitutional avoidance requires “‘courts,
when faced with two plausible constructions of a statute—one
constitutional and the other unconstitutional—to choose the
constitutional reading.’” (Voisine v. United States (2016) 136
S.Ct. 2272, 2290.) Does Senate Bill 1437—by eliminating natural
and probable consequences liability for murder but not attempted
14
murder—deny otherwise eligible defendants the constitutional
guarantee of equal protection of the law, and thus require us to
construe Senate Bill 1437 to reach attempted murder? We
conclude the answer is “no.”
The right to equal protection of the law is violated when
“the government . . . treat[s] a [similarly situated] group of people
unequally without some justification.” (People v. Chatman (2018)
4 Cal.5th 277, 288 (Chatman); Manduley v. Superior Court (2002)
27 Cal.4th 537, 568.) What constitutes sufficient justification
varies. If the law treats people differently on the basis of their
membership in certain “suspect classes” (such as their race) or if
the differential treatment “affect[s] a fundamental right,” then
the government must satisfy the strictest scrutiny by
demonstrating that the differential treatment is necessary to
serve a compelling interest. (Chatman, at p. 288.) If the law
treats people differently on the basis of their membership in
other “suspect classes” (such as gender or illegitimacy), then the
government must satisfy a more intermediate scrutiny. (Ibid.)
In all other situations, differential treatment of similarly situated
groups will be upheld unless the challenger shows “there is no
‘rational relationship between the disparity of treatment and
some legitimate governmental purpose.’” (People v. Turnage
(2012) 55 Cal.4th 62, 74.) This so-called “rational basis” scrutiny
is exceedingly deferential: A law will be upheld as long as a court
can “speculate” any rational reason for the resulting differential
treatment, regardless of whether the “speculation has ‘a
foundation in the record,’” regardless of whether it can be
“empirically substantiated,” and regardless of whether the
legislature ever “articulated” that reason when enacting the law.
(Id. at pp. 74-75; Johnson v. Department of Justice (2015) 60
15
Cal.4th 871, 881.) A court may not “second-guess” the “‘wisdom,
fairness, or logic’” of the law, and may invalidate it only if the
challenger “‘negative[s] every conceivable basis’” for the
differential treatment. (Heller v. Doe (1993) 509 U.S. 312, 319-
320.)
Even if we assume for the sake of argument that persons
convicted of murder and persons convicted of attempted murder
are similarly situated (but see Lopez, supra, 38 Cal.App.5th at p.
1109), construing Senate Bill 1437 to reach murder but not
attempted murder does not violate equal protection.
To begin, Senate Bill 1437 need only survive rational basis
scrutiny. Treating people differently based on their crime of
conviction is not a classification based upon “suspect class.” Nor
is it a classification that affects a fundamental right because
defendants have no fundamental right or liberty interest “‘in a
specific term of imprisonment or in the designation a particular
crime receives.’” (People v. Wilkinson (2004) 33 Cal.4th 821, 838
(Wilkinson).) We are mindful that our Supreme Court’s decision
in People v. Olivas (1976) 17 Cal.3d 236, 239 suggested that strict
scrutiny may apply to differential treatment arising out of the
classification of crimes, but the Court’s subsequent decision in
Wilkinson clipped Olivas’s wings when it rejected the proposition
that “Olivas . . . require[s] the courts to subject all criminal
classifications to strict scrutiny.” (Wilkinson, at p. 838; accord,
People v. K.P. (2018) 30 Cal.App.5th 331, 343.)
What is more, the line that Senate Bill 1437 draws between
persons convicted of murder and persons convicted of attempted
murder is a rational one. In fact, we can divine two rational
reasons why our Legislature would eliminate natural and
probable consequences liability for murder but not for attempted
16
murder. First, one of Senate Bill 1437’s stated purposes is to
make a person’s prison sentence “commensurate with the
culpability of the individual.” (Stats. 2018, ch. 1015, § 1, subd.
(e).) When a person is held liable for a crime on the basis of the
natural and probable consequences theory, the gap between his
individual culpability and the resulting sentence is greater for
murder than it is for attempted murder because the base
sentence for murder (which is 15 years to life for second degree
murder and 25 years to life for first degree murder (§ 190, subd.
(a))) is greater than the base sentence for attempted murder
(which is five, seven or nine years if not premeditated, and life if
premediated (§ 664, subd. (a))). Thus, the Legislature may have
wanted to focus on the crime—that is, murder—for which the gap
was most pronounced. (Accord, Lopez, supra, 38 Cal.App.5th at
p. 1112; Munoz, supra, 39 Cal.App.5th at pp. 763-764.) Second,
our Legislature examined the cost of eliminating natural and
probable consequences liability on a retroactive basis. (Sen. Com.
on Appropriations, Rep. on Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) The cost of re-opening and adjudicating convictions will be
greater if the universe of convictions to be re-opened includes
attempted murder and murder, instead of just murder. Thus, the
Legislature may have wanted to keep costs down by focusing just
on murder convictions resting on the natural and probable
consequences theory. (Accord, Lopez, at p. 1112; Munoz, at pp.
763-764; People v. Sanchez, supra, 48 Cal.App.5th at p. 921.) A
legislature acts rationally when it takes a “‘“one step at a time”’”
approach that focuses first on “‘“striking the evil where it is felt
most.”’” (Warden v. State Bar (1999) 21 Cal.4th 628, 649; Santa
Clara County Local Transportation Authority v. Guardino (1995)
11 Cal.4th 220, 261 [“A statute is not invalid merely because it
17
may fall short of accomplishing all that its drafters intended.”].)
A legislature’s commitment to a cause is rational even if it is not
a diehard commitment. Indeed, if there was nothing irrational
about our Supreme Court’s decision in Chiu, supra, 59 Cal.4th
155, to eliminate natural and probable consequences for first
degree murder while leaving that theory intact for second degree
murder (id. at p. 166), it is difficult to see how Senate Bill 1437’s
elimination of that liability for second degree murder while
leaving that theory intact for attempted murder and
manslaughter is any less rational.
Defendant urges that People v. Edwards (2019) 34
Cal.App.5th 183 (Edwards) dictates a finding that Senate Bill
1437 is irrational. It does not. The issue in Edwards was
whether the Legislature had a rational basis for granting an
opportunity for parole after 15, 20 or 25 years to youthful
offenders (that is, those between the ages of 18 and 25) who
committed first degree murder, but not to youthful offenders who
committed violent sex crimes under our One Strike Law
(§ 667.61). (Edwards, at p. 186.) Edwards held that there was
no rational reason for the Legislature to subject youthful
offenders convicted of violent sex crimes to “categorially harsher
punishment” than youthful offenders convicted of first degree
murder in light of precedent recognizing that “there is no crime
as horrible as intentional first degree murder.” (Id. at pp. 196-
197, 199.) Unlike the law at issue in Edwards, Senate Bill 1437
has a rational reason for eliminating vicarious liability for
murder but not attempted murder—namely, and as discussed
above, that it was focusing on the liability for the crime (that is,
murder) where there was the greatest gap between the
defendant’s personal culpability and the sentence.
18
b. Under the canon against absurd
consequences?
When the “literal meaning” of a statute will lead to “absurd
results” that “the Legislature could not have intended,” courts
may construe the statute to avoid those results. (In re D.B.
(2014) 58 Cal.4th 941, 948; Foxgate Homeowners’ Assn. v.
Bramalea California, Inc. (2001) 26 Cal.4th 1, 9.) Does
construing Senate Bill 1437 to encompass murder but not
attempted murder lead to absurd results? We conclude that
answer is “no.”
The argument that Senate Bill 1437 leads to absurd results
starts with the bill’s new rule: A person may be convicted of
attempted murder on natural and probable consequences theory
but a person may no longer be convicted of murder on that
theory. This, in turn, means that persons convicted of murder on
this theory will inevitably end up with lesser overall sentences
than those convicted of attempted murder on this theory. And
this, in turn, will “incentiviz[e] murder” (ostensibly, over
attempted murder) because the sentence for murder on this
theory will invariably be less than the sentence for attempted
murder on this theory. (Sanchez, supra, 46 Cal.App.5th at p.
642.)
We reject this argument. Although this argument correctly
summarizes Senate Bill 1437’s rule, it incorrectly extrapolates
the consequences of that rule. To begin, there is no guarantee
that persons convicted of attempted murder on a natural and
probable consequences theory will end up with a higher sentence
than those who might have been charged with (and convicted of)
murder on a natural and probable consequences theory. The
sentence for attempted murder is relatively low—five, seven or
nine years, if the attempted murder is not premeditated. (§ 664,
19
subd. (a).) And the sentence for those persons who might have
been charged with (and convicted of) murder on a natural and
probable consequences theory may well be higher because those
persons, by definition, aided and abetted some other crime (the
natural and probable consequence of which would have been
murder under the pre-Senate Bill 1437 law). The likelihood that
these individuals would end up with a higher sentence than those
convicted of attempted murder under a natural and probable
consequence theory is even greater when one considers that gang,
firearm and recidivist enhancements may further increase that
sentence.
But even if we assume for the sake of argument that
persons convicted of attempted murder under a natural and
probable consequences theory inevitably end up with a higher
sentence than those who might have been charged with (and
convicted of) murder under a natural and probable consequences
theory, this result will not incentivize murder. As a factual
matter, people do not plan to commit an attempted murder. They
plan to commit murder, but end up being unsuccessful. Indeed, a
person can be convicted of attempted murder only if he or she
intends to kill. (People v. Smith (2005) 37 Cal.4th 733, 739 [“to be
convicted of . . . attempted murder, the prosecution had to prove
[the defendant] acted with [the] specific intent to kill that
victim”].) It is difficult to see how a difference in sentencing on
the back end has any effect on a crime that, by definition, the
perpetrator must intend to commit. The incentive argument is
also, in our view, logically flawed. The only two persons who
might be incentivized to commit murder are the actual
perpetrator and the defendant who ends up being on the hook by
virtue of the natural and probable consequences theory. But the
20
actual perpetrator cannot be further incentivized to commit
murder because he is already acting with the intent to kill. And
the defendant who is held liable on a natural and probable
consequences theory alone is liable under that theory because a
reasonable person would think murder is a natural and probable
consequence of the lesser crime he aided and abetted, and not
because that defendant actually encouraged or influenced the
actual perpetrator to commit a murder (because, if he had, he
would be liable as a direct aider and abettor to the failed murder
attempt). Thus, the possible difference in sentences will not
incentivize either party to act any differently.
* * *
Because our Legislature’s intent to apply Senate Bill 1437
only to the crime of murder is clear from the bill’s legislative
history and not contradicted by any of the other pertinent canons
of statutory construction, we agree with those cases holding that
Senate Bill 1437 does not preclude natural and probable
consequences liability for attempted murder on a prospective
basis.
B. Even if we assume that Senate Bill 1437
prospectively precludes liability for attempted murder,
would that preclusion apply retroactively to a nonfinal
conviction?
The general default rule is that a new criminal law applies
on a solely prospective basis “unless” the law “expressly”
“declare[s]” it applies retroactively. (§ 3; People v. Brown (2012)
54 Cal.4th 314, 319 [noting this “default” rule].) There is an
exception to this general default rule: When the new law
“mitigates punishment,” courts will presume that our Legislature
intended it to apply to convictions that are not yet final—that is,
to convictions for which the time to appeal and file a petition for a
21
writ of certiorari have not yet expired. (Estrada, supra, 63 Cal.2d
at pp. 745-746, 748; People v. Smith (2015) 234 Cal.App.4th 1460,
1464-1465.) But this presumption applies only where “it is
impossible to ascertain the legislative intent” regarding
retroactivity (Estrada, at p. 746); where our Legislature
expresses an intent not to have the new law apply retroactively,
that express intent controls. (Ibid.)
Even if Senate Bill 1437 prospectively eliminated natural
and probable consequences liability for attempted murder, our
Legislature has expressed an intent not to have that law apply
retroactively to any prior convictions, whether or not final. In
addition to amending sections 188 and 189, Senate Bill 1437
added section 1170.95 as the mechanism by which previously
convicted defendants may seek to vacate their convictions. More
specifically, section 1170.95 creates the procedure by which “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
. . . to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a),
italics added.) In spelling out that procedure, section 1170.95
entitles a petitioner for whom an order to show cause has been
issued to “a hearing to determine whether to vacate the murder
conviction . . . .” (Id., subd. (d), italics added.) As this italicized
language makes clear, this mechanism for retroactive relief
applies only to persons seeking to vacate a conviction for
“murder”; it says nothing about attempted murder. (Accord,
Larios, supra, 42 Cal.App.5th at pp. 969-970; Medrano, supra, 42
Cal.App.5th at pp. 1017-1018.) What is more, this mechanism
applies to any “conviction[]” without regard to whether it is final
or not. (People v. Martinez (2019) 31 Cal.App.5th 719, 727
22
[“section 1170.95 does not distinguish between persons whose
sentences are final and those whose sentences are not.”].) For
this reason, we disagree with Medrano’s holding that section
1170.95 applies only to final convictions and thus does not rebut
the default presumption favoring retroactive application of
mitigating laws to nonfinal convictions. (Medrano, at pp. 1018-
1019.) To us, section 1170.95’s express application to all
“conviction[s]”—whether or not final—rebuts this default
presumption as to nonfinal as well as final convictions.
* * *
Thus, even if Senate Bill 1437 reached attempted murder
convictions on a prospective basis, it does not provide for
retroactive relief for such convictions whether final or not.
II. Denial of Motion to Strike Firearm Enhancement
Defendant argues that the trial court erred in denying his
motion to strike the 25-year firearm enhancement. In 2018, our
Legislature granted trial courts discretion to “strike or dismiss”
the 25-year enhancement for a principal’s “intentional[]
discharge[ of] a firearm” that “proximately causes great bodily
injury, . . . or death.” (§ 12022.53, subds. (d), (e) & (h).) We
review a trial court’s decision not to “strike or dismiss” an
enhancement solely for an abuse of discretion (e.g., People v.
Carmony (2004) 33 Cal.4th 367, 378), and review any subsidiary
factual questions for substantial evidence (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1478-1479).
The trial court did not abuse its discretion in opting not to
strike defendant’s firearm enhancement. The court was aware of
its discretion, and declined to exercise it based on its finding that
defendant was “integral” to the shooting because he “knew”
Vaughn was planning to shoot someone and nevertheless drove
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Vaughn into rival gang territory and patiently waited while
Vaughn opened fire in a busy intersection, shooting the victim 10
times as well as striking passing cars. These are entirely proper
considerations. (E.g., People v. Rocha (2019) 32 Cal.App.5th 352,
359 [looking to “individualized considerations pertaining to the
defendant and his or her offenses and background”].)
Defendant makes three arguments. First, he argues that
the trial court misapprehended the underlying facts when it
found that defendant knew about the shooting in advance
because one of the trial witnesses testified that defendant had
only planned a “beat down,” not a shooting. Because the record
contains substantial evidence to support the trial court’s finding
that defendant knew about the shooting, we necessarily decline
defendant’s invitation to come to a different finding after re-
weighing the evidence. (People v. Brown (2014) 59 Cal.4th 86,
106.) Second, defendant argues that the trial court erred in
discussing the video that Vaughn recorded showing Vaughn
commit acts similar to those of the charged crimes. At worst, the
video was irrelevant to defendant’s role in the charged crimes,
but it in no way undercut the trial court’s otherwise accurate
assessment of that role as being “integral.” Lastly, defendant
argues the court did not recite on the record all of the mitigating
factors (such as defendant’s age) or that it had reviewed the
probation report(s). This is not required, as the trial court is
presumed to have considered all the pertinent factors unless the
record shows to the contrary (and here it did not). (People v.
Pearson (2019) 38 Cal.App.5th 112, 117; Cal. Rules of Court, rule
4.409.)
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DISPOSITION
The judgment and order denying relief under section
1170.95 are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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