Filed 11/24/20 P. v. Valencia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299957
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA402808)
v.
CLAUDIA VALENCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed.
Jennifer A. Gambale, 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 Christopher G. Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2013, defendant and appellant Claudia Valencia was
convicted of attempted murder. (Pen. Code, §§ 664, 187,
subd. (a).)1 We affirmed the judgment on direct appeal. (People
v. Valencia (Oct. 20, 2014, B253431) [nonpub. opn.] (Valencia I).)
In 2019, following the enactment of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (SB 1437), defendant filed a petition for
resentencing under section 1170.95. The trial court summarily
denied the petition on the grounds that (1) section 1170.95 does
not apply to convictions for attempted murder, and (2) SB 1437
and section 1170.95 are unconstitutional.
Because defendant was convicted of attempted murder
rather than murder, she is ineligible for relief under
section 1170.95 as a matter of law. We affirm on that basis.
BACKGROUND
I. Underlying Attempted Murder Conviction
Based on a shooting that took place in 2012, defendant was
charged in an amended information filed by the Los Angeles
County District Attorney’s Office with attempted murder.
(§§ 664, 187, subd. (a).) The amended information also alleged
that the offense was committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)); was committed for the benefit of,
at the direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)); and that a principal used a firearm
(§ 12022.53, subds. (b), (c), (d) & (e)(1)). It was further alleged
that defendant had suffered a prior serious felony conviction
(§ 667, subd. (a)(1)), which also constituted a “strike” within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Defendant was tried along with two codefendants.
(Valencia I, supra, B253431 at p. 2.) “The prosecutor proceeded
under the theory that, even if defendant was not the shooter, she
was guilty as an aider and abettor and/or coconspirator under the
theory of natural and probable consequences.” (Id. at p. 5, fn. 3.)
The jury found defendant guilty of attempted murder and
found true the firearm and gang allegations. The jury did not
find it true that the attempted murder was committed willfully,
deliberately, and with premeditation. Defendant admitted the
prior. After striking the strike conviction, the trial court
sentenced defendant to serve 35 years to life in state prison.
In 2014, we affirmed the judgment on direct appeal.
(Valencia I, supra, B253431 at p. 11.)
II. Section 1170.95 Proceedings
On June 11, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Defendant declared, in
relevant part, that she was convicted of attempted murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine and that she could not now be convicted of
attempted murder because of the changes made to sections 188
and 189, effective January 1, 2019.
On June 25, 2019, the trial court summarily denied the
petition on the ground that section 1170.95 does not apply to
convictions, like defendant’s, for attempted murder. The court
also denied the petition on the independent ground that SB 1437
and section 1170.95 are unconstitutional.
Defendant filed a timely notice of appeal from the order
denying the petition.
3
DISCUSSION
Defendant argues that the trial court erred in finding
SB 1437 and section 1170.95 inapplicable to attempted murder
and unconstitutional.
I. Standard of Review
Our review is de novo. (Christensen v. Lightbourne (2019)
7 Cal.5th 761, 771 [statutory interpretation]; Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts].)
II. Defendant Is Not Eligible for Relief Under Section 1170.95
The outcome of this appeal turns on a single issue: Does
section 1170.95 provide resentencing relief for a conviction for
attempted murder? We conclude that it does not.
Effective January 1, 2019, SB 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).)
To accomplish this, SB 1437 amended sections 188 and 189.
(Stats. 2018, ch. 1015, §§ 2–3.) It also added section 1170.95,
creating a procedure whereby a person convicted of murder for an
act that no longer qualifies as murder because of the changes to
sections 188 and 189 can petition to have the murder conviction
vacated and to be resentenced. (Stats. 2018, ch. 1015, § 4.)
We recently held, in People v. Love (2020) 55 Cal.App.5th
273 (Love), that SB 1437 did “not eliminate the natural and
probable consequences theory for attempted murder on any
basis—either prospectively or retroactively. In reaching this
4
holding, we conclude[d] that (1) [SB] 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 [SB] 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[.]’” (Love, supra, at p. 279.)
While Courts of Appeal have split on whether SB 1437 may
generally apply to attempted murder (Love, supra,
55 Cal.App.5th at pp. 278–279), there is consensus that
section 1170.95, specifically, does not provide a mechanism to
vacate an attempted murder conviction. (See, e.g., People v.
Alaybue (2020) 51 Cal.App.5th 207, 223; Love, supra, at p. 282;
People v. Lopez (2019) 38 Cal.App.5th 1087, 1105 (Lopez), review
granted Nov. 13, 2019, S258175; People v. Medrano (2019)
42 Cal.App.5th 1001, 1008, review granted Mar. 11, 2020,
S259948; People v. Munoz (2019) 39 Cal.App.5th 738, 754, review
granted Nov. 26, 2019, S258234.)
Defendant nevertheless contends that both SB 1437 and
section 1170.95 must be interpreted to include attempted murder
because (1) attempted murder is a lesser-included offense of
murder; (2) excluding attempted murder would be contrary to
legislative intent and produce absurd results; and (3) excluding
attempted murder violates principles of equal protection.
In Love, supra, 55 Cal.App.5th 273, we addressed and
rejected the arguments that defendant makes here regarding
legislative intent (id. at p. 286 [statements of purpose found
SB 1437’s preamble “leave little doubt that our Legislature was
5
focused on eliminating vicarious liability for the crime of murder,
and not lesser crimes”]), absurd results (Love, supra, at pp. 289–
291), and equal protection (id. at pp. 287–289). It follows that we
also reject those arguments here.
As for the contention that attempted murder is a lesser
included offense of murder and ameliorative legislation
applicable to the completed offense should apply to attempts, we
are not persuaded. It “is by no means apparent” that attempted
murder is a lesser included offense of murder given that “the
crime of attempted murder requires proof of the ‘specific intent to
kill’ [citation], which is not necessarily an element of (implied
malice) murder.” (Lopez, supra, 38 Cal.App.5th at p. 1106,
fn. 11.)2
In sum, because section 1170.95 “applies only to qualifying
defendants convicted of felony murder or murder under a natural
and probable consequences theory” (People v. Flores (2020)
44 Cal.App.5th 985, 997, italics added) and defendant was not
convicted of murder, she is ineligible for resentencing under
2 To the extent that we stated, in a very different context in
People v. Davidson (2008) 159 Cal.App.4th 205, 210 (Davidson),
that “[a]ttempted murder is a lesser included offense of
murder[,]” we note that Davidson predated People v. Bailey
(2012) 54 Cal.4th 740, 753, in which the Supreme Court
explained that “the general principle that attempt is a lesser
included offense of any completed crime . . . is not applicable . . .
where the attempted offense includes a particularized intent that
goes beyond what is required by the completed offense.”
6
section 1170.95 as a matter of law. Accordingly, the trial court
did not error by denying her petition.3
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
3 Because we can affirm on this ground alone, we need not
address whether the trial court erred in denying the petition on
the independent basis that SB 1437 and section 1170.95 are
unconstitutional. (See Smyth v. Berman (2019) 31 Cal.App.5th
183, 196 [“we may affirm on any ground supported by the
record”].) We nevertheless note that we agree with the parties
that SB 1437 does not impermissibly amend Proposition 7 or
Proposition 115, violate Marsy’s Law, or infringe on the
separation of powers doctrine. (E.g. People v. Bucio (2020)
48 Cal.App.5th 300, 307.)
7