People v. Majied CA4/2

Filed 11/12/20 P. v. Majied 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074375

v. (Super.Ct.No. RIF1411978)

DAVID MALARCHER MAJIED, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Daniel J. Kessler, 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, Melissa Mandel and Adrian R.

Contreras, Deputy Attorney General, for Plaintiff and Respondent.

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 INTRODUCTION

In 2015, a jury found defendant and appellant David Malarcher Majied guilty of

first degree attempted murder (Pen. Code,1 §§ 664, 187, subd. (a)), along with other

crimes. In 2019, Senate Bill No. 1437 (Reg. Sess. 2017-2018) went into effect and now

allows a defendant who was convicted of murder to petition a court under section

1170.95 to have the murder conviction vacated. Defendant filed a petition under section

1170.95. The trial court dismissed his petition because he was convicted of attempted

murder, not murder.

Defendant appeals, arguing the provisions of Senate Bill No. 1437 should apply to

defendants convicted of attempted murder. We disagree and affirm the trial court’s

order.

FACTUAL AND PROCEDURAL BACKGROUND2

Defendant and another man tried to rob a marijuana dispensary on May 2, 2014.

Both men were armed. A dispensary employee was also armed, and when he drew his

gun, one of the intruders shot at the employee, and he returned fire. The intruders and the

employee continued to exchange gunfire until the intruders fled in a vehicle.

On January 30, 2015, a jury found defendant guilty of attempted murder (§§ 664,

187, subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), attempted

1 All further statutory references will be to the Penal Code unless otherwise noted.

2This brief factual summary is taken from our prior unpublished opinion. (See
People v. Majied (Jan. 23, 2017, E064830) [nonpub. opn.].) We took judicial notice of
this opinion, pursuant to defendant’s request.

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robbery (§§ 664, 211, count 3), and burglary (§ 459, count 4). As to count 1, the jury

also found true a firearm enhancement. (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8).)

Defendant admitted he had served four prior prison terms. (§ 667.5, subd. (b).) On

September 18, 2015, a trial court sentenced him to a total term of 13 years in state prison.

Defendant appealed, and this court affirmed the judgment. (People v. Majied,

supra, E064830.)

On March 13, 2019, defendant filed a petition for resentencing under section

1170.95, in propria persona, alleging that he was convicted of attempted second degree

murder pursuant to the felony murder rule or the natural and probable consequences

doctrine, and that he could not now be convicted of attempted second degree murder

because of the amendments to sections 188 and 189. He also requested appointment of

counsel. The People moved to strike defendant’s petition, arguing that Senate Bill No.

1437 is unconstitutional because it unlawfully amended Proposition 7 and Proposition

115, violated the separation of powers doctrine, and conflicted with the Victims’ Bill of

Rights Act of 2008. The People also argued that Senate Bill No. 1437 does not apply to

attempted murder. The trial court appointed a public defender to represent defendant,

and counsel filed a reply brief arguing that defendant had set forth a prima facie case for

relief.

On November 22, 2019, the court held a hearing on the petition. The People

argued that the petition should be dismissed because it involved attempted murder. The

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court stated that People v. Munoz3 was “still controlling authority” and granted the

People’s request.

DISCUSSION

Senate Bill No. 1437 Does Not Apply to Attempted Murder

Defendant argues that Senate Bill No. 1437, including the petitioning procedure in

section 1170.95, applies to convictions for both murder and attempted murder. We

disagree and conclude that the court properly dismissed his petition.

A. Senate Bill No. 1437

On September 30, 2018, the Governor signed Senate Bill No. 1437. (People v.

Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).) “The legislation, 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.” (Id. at pp. 722-723.) “Senate Bill [No.] 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.’ ” (Id. at p. 723.)

3
The court was apparently referring to People v. Munoz (2019) 39 Cal.App.5th
738 (Munoz), review granted November 26, 2019, S258234.
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 Senate Bill No. 1437 accomplished that purpose by substantively amending

section 188 (defining malice), and section 189 (defining the degrees of murder). “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.’ ” (In

re R.G. (2019) 35 Cal.App.5th 141, 144; see § 188, subd. (a)(3).) Amended section 189

limits first degree murder liability based on a felony murder theory to a person who:

(1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the

actual killer in the commission of first degree murder; or (3) was a major participant in

the underlying felony who acted with reckless indifference to human life. (§ 189, subd.

(e).) “Senate Bill [No.] 1437 thus ensures that murder liability is not imposed on a

person who did not act with implied or express malice, was 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.” (Munoz, supra, 39 Cal.App.5th at

pp. 749-750.)

Senate Bill No. 1437 also added section 1170.95, which creates a procedure by

which persons convicted of felony murder or murder under a natural and probable

consequences theory may seek resentencing. (Martinez, supra, 31 Cal.App.5th at

pp. 722-723.) Subdivision (a) of section 1170.95 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

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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), italics added.)

B. The Court Properly Dismissed the Petition

Two appellate courts in the Second District have held that Senate Bill No. 1437

does not apply to the crime of attempted murder, based upon reasoning that is equally apt

here. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105 (Lopez), review granted

Nov. 13, 2019, S258175, and Munoz, supra, 39 Cal.App.5th 738.) In Lopez, the appellate

court concluded the “Legislature’s obvious intent to exclude attempted murder from the

ambit of the Senate Bill [No.] 1437 reform” was evidenced by the language of section

1170.95 itself, as it expressly limits its application to murder convictions. (Lopez, at

pp. 1104-1105.)

The Lopez court further observed: “The plain language meaning of Senate Bill

[No.] 1437 as excluding any relief for individuals convicted of attempted murder is fully

supported by its legislative history.” (Lopez, supra, 38 Cal.App.5th at p. 1105.) The

court stated: “When describing the proposed petition process, the Legislature

consistently referred to relief being available to individuals charged in a complaint,

information or indictment ‘that allowed the prosecution to proceed under a theory of first

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degree felony murder, second degree felony murder, or murder under the natural and

probable consequences doctrine’ and who were ‘sentenced to first degree or second

degree murder.’ [Citation.] In addition, when discussing the fiscal impact and assessing

the likely number of inmates who may petition for relief, the Senate Committee on

Appropriations considered the prison population serving a sentence for first and second

degree murder and calculated costs based on that number. [Citation.] The analysis of

potential costs did not include inmates convicted of attempted murder.” (Ibid.)

In Lopez, the defendants argued that, “by redefining the elements of murder,

Senate Bill [No.] 1437 impliedly eliminated the natural and probable consequences

doctrine as a basis for finding an aider and abettor guilty of attempted murder . . . .”

(Lopez, supra, 38 Cal.App.5th at p. 1105.) The court found the argument unavailing and

explained, as follows: the defendants’ “premise of this implied repeal argument is that,

generally to be guilty of an attempt to commit a crime, the defendant must have

specifically intended to commit all the elements of that offense. Since a conviction for

murder now requires proof of malice except as specified in section 189, subdivision (e),

and malice may not be imputed to a person based solely on his or her participation in an

underlying crime, they reason, the natural and probable consequences theory of aider and

abettor liability is no longer viable. [¶] [The defendants’] premise, that to be guilty of an

attempt an accomplice must have shared the actual perpetrator’s intent, is correct as to

direct aider-and-abettor liability [citations], but it is inapplicable to offenses charged

under the natural and probable consequences doctrine, which is based on a theory of

vicarious liability, not actual or imputed malice. [Citation.] As a matter of statutory

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interpretation, Senate Bill [No.] 1437’s legislative prohibition of vicarious liability for

murder does not, either expressly or impliedly, require elimination of vicarious liability

for attempted murder.” (Lopez, at pp. 1105-1106.)

The court in Munoz, supra, 39 Cal.App.5th 738, agreeing with Lopez, held that

Senate Bill No. 1437 plainly and unambiguously applies only to murder because “section

1170.95 . . . speaks only in terms of murder, not attempted murder.” (Munoz, at p. 754.)

As the Munoz court noted, “[w]here the words of the statute are clear, we are not at

liberty to add to or alter them to accomplish a purpose that is not apparent on the face of

the statute or in its legislative history.” (Id. at p. 755.)

The Fifth District in People v. Larios (2019) 42 Cal.App.5th 956 (Larios), review

granted February 26, 2020, S259983, and People v. Medrano (2019) 42 Cal.App.5th

1001 (Medrano), review granted March 11, 2020, S259948, reached a different

conclusion than Lopez on the issue of accomplice liability. That court held that Senate

Bill No. 1437’s changes to sections 188 and 189 preclude imposition of vicarious liability

under the natural and probable consequences doctrine if the charged offense requires

malice aforethought. (Larios, at p. 966; Medrano, at p. 1013.) As the Larios court

explained, section 188, as amended, stated that “ ‘[m]alice shall not be imputed to a

person based solely on his or her participation in a crime’ ” (Larios, at p. 967-968), and

contained “no exceptions for attempted murder, which indisputably requires express

malice.” (Id. at p. 967.) Based on section 188, the Larios court determined Senate Bill

No. 1437 modified accomplice liability for both murder and attempted murder. (Larios,

at p. 968.) Accordingly, because the amended statutes prohibit malice from being

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imputed to a defendant who aids and abets a target offense without the intent to kill, the

natural and probable consequences doctrine is no longer a viable theory of accomplice

liability for attempted murder. (Larios, at p. 966; Medrano, at p. 1013.)

Even so, Larios “agree[d] with the reasoning of Lopez . . . that the relief provided

in section 1170.95 [was] limited to certain murder convictions and excludes all other

convictions, including a conviction for attempted murder.” (Larios, supra, 42

Cal.App.5th at p. 970.) The court reasoned “[t]he plain language of section 1170.95,

subdivision (a) limits relief to persons ‘convicted of felony murder or murder under a

natural and probable consequences theory [to] file a petition with the court . . . .’ ” (Id. at

p. 968; see Medrano, supra, 42 Cal.App.5th at pp. 1017-1018 [Senate Bill No. 1437

amended accomplice liability for both murder and attempted murder, but the

“unambiguous language” of section 1170.95 is limited to persons convicted of murder].)

The courts agreed that no language in section 1170.95 references relief to persons

convicted of attempted murder, and the legislative history of Senate Bill No. 1437

supports the conclusion section 1170.95 was intended to apply only to persons convicted

of murder. (Larios, at p. 969; Medrano, at p. 1017.) Thus, even courts that have taken a

broader interpretation of the changes made by Senate Bill No. 1437 have concluded that

section 1170.95 limits relief only to defendants convicted of murder.

Defendant acknowledges that Larios and Medrano hold that the petitioning

procedure in section 1170.95 are not available to defendants convicted of attempted

murder. Nonetheless, he simply claims that, if the amended section 188 applies to

attempted murder, “so too should the petitioning procedures in section 1170.95.”

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However, by section 1170.95’s plain terms, only persons “convicted of felony murder or

murder under a natural and probable consequences theory may file a petition . . . .”

(§ 1170.95, subd. (a), italics added.) “The repeated references to murder convictions in

section 1170.95, as opposed to attempted murder convictions, make clear that Senate Bill

[No.] 1437’s ameliorative benefit was meant to reach only the completed offense of

murder, not the distinct offense of attempted murder.” (People v. Alaybue (2020) 51

Cal.App.5th 207, 223.)

Defendant further argues that the literal language of Senate Bill No. 1437 should

not be given effect because such an interpretation would lead to absurd consequences.

He posits that construing Senate Bill No. 1437 to apply to murder, but not attempted

murder, will result in the absurd consequence of a defendant who aided and abetted a

confederate in an assault where the victim died being able to vacate his murder

conviction; however, for the same conduct, if the victim does not die, the defendant

would be guilty of attempted murder, “a more serious crime than assault.” He contends

that “[t]he resentencing procedure should not be available only to defendants whose

victims died.” The court in Munoz rejected a similar argument. The defendant in that

case argued that construing Senate Bill No. 1437 to apply only to murder would result in

“ ‘absurdly disparate’ sentencing consequences for the same conduct, with persons

convicted of the lesser offense of attempted murder serving longer sentences than those

convicted of murder.” (Munoz, supra, 39 Cal.App.5th at p. 756, fn. omitted.)

The Munoz court recognized that the language of a statute should not be given a

literal meaning if doing so would result in absurd consequences that the Legislature did

10
not intend or would frustrate the purpose of the legislation as a whole. However, it

concluded that the Legislature apparently intended to exclude attempted murder from

Senate Bill No. 1437’s reach “and the consequences of that legislative choice are not

clearly absurd.” (Munoz, supra, 39 Cal.App.5th at p. 757.) The court pointed to “[t]he

statute’s uncodified statement of legislative findings and declarations,” and noted the

“repeated references to ‘murder,’ and murder alone,” as well as “the statement that

amendment of the natural and probable consequences doctrine was necessary ‘as it relates

to murder.’ ” (Ibid.)

The Munoz court also reasoned that it would not be absurd to abide by the plain

language of the statute, since “it is far from clear that interpreting Senate Bill [No.] 1437

to apply to convictions for murder, but not attempted murder, will always, or typically,

result in longer sentences for the latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758.)

The court noted that “the basic punishment for attempted murder is far less severe than

that imposed for murder” and applying the statute’s plain language does not “undermine

the primary legislative goal of making punishment commensurate with culpability,

because the punishment for attempted murder was already, prior to Senate Bill [No.]

1437’s enactment, less than that imposed for murder.” (Id. at p. 758.)

Moreover, the Munoz court observed that the “ ‘absurdity exception requires much

more than [a] showing that troubling consequences may potentially result if the statute’s

plain meaning were followed or that a different approach would have been wiser or

better,’ ” and, further, that the absurdity doctrine should be used only in extreme cases.

(Munoz, supra, 39 Cal.App.5th at p. 758; see People v. Morales (2019) 33 Cal.App.5th

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800, 806.) Here, as in Munoz, the potential consequences suggested by defendant may be

troubling. “However, they are not so absurd that we must override the plain meaning of

the statutory language.” (In re D.B. (2014) 58 Cal.4th 941, 948; see also, Munoz, at

p. 758.)

In support of his contention that denying Senate Bill No. 1437 relief to attempted

murderers is absurd, defendant relies upon People v. Sanchez (2020) 46 Cal.App.5th 637,

review granted June 10, 2020, S261768. The court there gave a hypothetical similar to

defendant’s and reasoned that “[l]imiting Senate Bill No. 1437’s malice imputing

prohibition to murder has the absurd consequence of incentivizing murder.” (Id. at

pp. 643.) However, we note that Sanchez agreed with the analyses in Larios and

Medrano and thereby interpreted Senate Bill No. 1437 as abrogating the natural and

probable consequences doctrine as a theory of accomplice liability for attempted murder,

but only if raised by direct appeal from the underlying judgment, not by way of a section

1170.95 petition. (Sanchez, at pp. 642-644.) Therefore, Sanchez does not alter our

analysis and conclusion that the court here properly dismissed defendant’s section

1170.95 petition.

Ultimately, we agree with the reasoning and holding of the courts in Lopez and

Munoz and conclude that Senate Bill No. 1437 does not apply to defendants convicted of

attempted murder.

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 DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

McKINSTER
Acting P. J.

RAPHAEL
J.

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