Filed 12/17/20 P. v. Lathan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B299515
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA045268)
v.
RICHARD LATHAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, James R. Dabney. Affirmed.
Janet Uson, 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, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Richard Lathan appeals from the trial court’s
denial of his Senate Bill No. 1437 (Senate Bill 1437) and Penal
Code section 1170.951 petition for resentencing. We affirm.
II. FACTUAL BACKGROUND
“At the time of the crimes, [G.T.], Veronica Perez, and their
children were visiting [I.M.], [A.P.], and their children. At some
point in the evening, [I.M.] and [G.T.] were sitting in [I.M.]’s car,
parked near the front door to the house. [I.M.] was in the
passenger seat, [G.T.] in the driver’s seat. The driver’s side door
was open. [Defendant] and another man approached them.
“[Defendant] shot [G.T.] twice, in the stomach and in the
chest. The other man shot [I.M.] twice. [G.T.] ran into the house
and fell on the couch. [Defendant] continued to shoot at [G.T.] as
he ran.
“[A.P.] was inside the house when she heard six or seven
shots fired. She ran to the front door and saw two men. She
could not tell if both . . . were shooting, but she heard rapid
gunshots when she saw them both there. The men turned and
appeared to see her, so she stepped back into the house. The
shooters got as close as the front door jamb, so that they could see
Veronica Perez inside the house, in the living room. When the
shots stopped, Veronica [Perez] said ‘They shot me too,’ and fell.
Veronica Perez was killed by a gunshot wound.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
“Two bullets were recovered at the scene. One of them was
found inside the house, in front of the couch, and the other
outside, two or three feet from the rear of [I.M.]’s car. Those
bullets were fired from the same gun. A bullet recovered at the
hospital where [G.T.] was taken after the shooting was shot from
another gun.
“[I.M.] identified the [codefendant] in this case as the man
who shot him. However, the jury could not reach a verdict on the
charges against the [codefendant] and the court declared a
mistrial on those charges.” (People v. Lathan (Oct. 21, 1993,
B070970) [nonpub. opn.].)
The jury found defendant guilty of the second degree
murder of Veronica Perez and the attempted premeditated
murders of G.T. and I.M. The jury also found true the allegation
that defendant personally used a firearm in the commission of
the murder. (People v. Lathan, supra, B070970.)
At a later retrial, the codefendant was convicted of the
second degree murder of Veronica Perez and the attempted
premeditated murder of I.M. The jury found true an allegation
that the codefendant had personally used a firearm in the
commission of both crimes (§ 12022.5, subd. (a)). (People v.
Elliotte (Mar. 6, 1995, B078292) [nonpub. opn.].)
III. PROCEDURAL BACKGROUND
On March 7, 2019, defendant filed his petition for
resentencing pursuant to Senate Bill 1437.2 Defendant
2 Although defendant stated that he made his motion
pursuant to section 1170, subdivision (d)(1), we will treat his
motion as one made pursuant to section 1170.95.
3
contended that he was eligible for resentencing because the jury
did not find that he acted with premeditation and deliberation,
there was no proof that he had the intent “to kill anyone under
the natural and probable consequences [theory,]” and no proof
that he “aided and abetted his [codefendant] in the second degree
murder he stands convicted of under the old felony murder rule.”
Defendant requested the appointment of counsel.
On April 11, 2019, the District Attorney filed an opposition
to the petition arguing that defendant was not entitled to
resentencing because he had not been convicted of murder under
either a felony murder or a natural and probable consequences
theory of liability. The District Attorney also argued that Senate
Bill 1437 was unconstitutional.
On April 12, 2019, the trial court denied the petition,
finding “that the [defendant] has failed to allege any facts that
would entitle him to relief under section 1170.95.” The court
further concluded that it did not need to address whether the
statute was constitutional.
III. DISCUSSION
A. Senate Bill 1437 and Section 1170.95
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
4
the statute as set forth in subdivision (a), including that ‘(1) [a]
complaint, information, or indictment was filed 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) [t]he 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[, and] [¶]
(3) [t]he petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted Mar.
18, 2020, [S260493 (Verdugo)].) If it is clear from the record of
conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598 (Lewis)].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. omitted, review
granted July 22, 2020, S262835 (Smith).)
5
B. Analysis
1. Murder Conviction
Defendant contends that the trial court erred by summarily
denying his petition on the murder conviction without first
appointing counsel and allowing him to submit supplemental
briefing. We disagree.
The jury instructions in defendant’s case did not include
instructions on the felony murder rule or the natural and
probable consequences doctrine. The jury received instructions
only on direct aiding and abetting3 and the elements of malice
murder.4 Defendant, however, contends that “[i]t was reasonable
3 The trial court delivered CALJIC No. 3.01, which stated, “A
person aids and abets the [commission] [or] [attempted
commission] of a crime when he or she, [¶] (1) with knowledge of
the unlawful purpose of the perpetrator and [¶] (2) with the
intent or purpose of committing, encouraging, or facilitating the
commission of the crime, by act or advice aids, promotes,
encourages or instigates the commission of the crime. [¶] [A
person who aids and abets the [commission] [or] [attempted
commission] of a crime need not be personally present at the
scene of the crime.] [¶] [Mere presence at the scene of a crime
which does not itself assist the commission of the crime does not
amount to aiding and abetting.] [¶] [Mere knowledge that a
crime is being committed and the failure to prevent it does not
amount to aiding and abetting.]”
4 The court delivered CALJIC No. 8.10, which stated,
“[Defendant is accused in [Count 1 of] the information of having
committed the crime of murder, a violation of . . . [s]ection 187.]
[¶] Every person who unlawfully kills a [human being] [with
6
for a jury to find that . . . [defendant] was liable as a natural and
probable consequences of the initial shooting near the car.”
Defendant notes that in his initial appeal, he argued the trial
court erred in failing to instruct the jury on the natural and
probable consequences theory. But the fact that the jury was not
instructed on this theory of murder defeats rather than supports
defendant’s claim that the court erred. (Smith, supra, 49
Cal.App.5th at p. 92, fn. 5 [“if the jury was not instructed on a
natural and probable consequences or felony-murder theory of
liability, the petitioner could not demonstrate eligibility as a
matter of law because relief is restricted to persons convicted
under one of those two theories”].) Because defendant could only
have been convicted of murder as the shooter or a direct aider
and abettor, and the jury necessarily found that he intended to
kill the victim, defendant was ineligible, as a matter of law, for
resentencing under section 1170.95. (Verdugo, supra, 44
Cal.App.5th at p. 330 [the record of conviction may establish that
defendant “is ineligible for relief as a matter of law because he or
she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189”]; Lewis, supra, 43 Cal.App.5th at p. 1140 [“the trial
court’s duty to appoint counsel [under section 1170.95] does not
arise unless and until the court makes the threshold
malice aforethought] is guilty of the crime of murder in violation
of [s]ection 187. . . . [¶] In order to prove such crime, each of the
following elements must be proved: [¶] 1. A human being was
killed. [¶] 2. The killing was unlawful, and [¶] 3. The killing
[was done with malice aforethought]. [¶] [A killing is unlawful,
if it [is] [neither] [justifiable] [nor] [excusable].”
7
determination that petitioner ‘falls within the provisions’ of the
statute”].)
Defendant additionally contends that he had a
constitutional right, under the Sixth Amendment and due process
principles, to the appointment of counsel. We disagree. (See,
e.g., Smith, supra, 49 Cal.App.5th at p. 92; People v. Cornelius
(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410; see also Dillon v. United States (2010) 560 U.S. 817,
828–829 [holding Sixth Amendment inapplicable to sentence
modification proceedings]; People v. Anthony (2019) 32
Cal.App.5th 1102, 1156 [“[T]he retroactive relief . . . afforded by
Senate Bill 1437 is not subject to Sixth Amendment analysis”]; In
re Clark (1993) 5 Cal.4th 750, 780 [constitutional due process
guarantees demand appointment of counsel in postconviction
proceedings “if a petition . . . states a prima facie case leading to
issuance of an order to show cause”].)
2. Attempted Murder Convictions
Defendant next contends the trial court erred by summarily
denying his section 1170.95 petition on his attempted murder
convictions. He acknowledges that courts are divided on the
issue of whether section 1170.95 applies to attempted murder,
but argues the cases holding that section 1170.95 does not apply
to attempted murder5 were wrongly decided.
5 In People v. Lopez (2019) 38 Cal.App.5th 1087, review
granted November 13, 2019, S258175 (Lopez) and People v.
Munoz (2019) 39 Cal.App.5th 738, review granted
November 26, 2019, S258234 (Munoz), the courts held that
defendants convicted of attempted murder under the natural and
8
In light of the express language of section 1170.95, we
follow the decisions in Lopez, supra, 38 Cal.App.5th 1087 and
Munoz, supra, 39 Cal.App.5th 738 and conclude that the trial
court did not err by denying the petition on the attempted
murder convictions because those convictions were based on
offenses that were not eligible for relief under section 1170.95.
We also reject defendant’s contention that the trial court’s
failure to construe section 1170.95 as applying to the offense of
attempted murder violated his right to equal protection under the
federal and California constitutions. Our colleagues in Divisions
Three and Seven have considered and rejected defendant’s
contention that construing section 1170.95 to exclude attempted
murder violates equal protection principles. (Munoz, supra, 39
Cal.App.5th at pp. 760–768; Lopez, supra, 38 Cal.App.5th at
pp. 1107–1112.) They held that persons convicted of attempted
murder under the natural and probable consequences doctrine
are not similarly situated to persons convicted of murder, and the
Legislature had a rational basis for limiting Senate Bill 1437 to
persons convicted of murder. (Munoz, supra, 39 Cal.App.5th at
pp. 760–768; Lopez, supra, 38 Cal.App.5th at pp. 1107–1112.) We
agree.
probable consequences doctrine are not eligible for section
1170.95 relief.
9
IV. DISPOSITION
The order denying the resentencing petition under section
1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J. MOOR, J.
10