Filed 1/14/21 P. v. Massett CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077696
Plaintiff and Respondent,
v. (Super. Ct. No. SCN337293)
DONNIE J. MASSETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
K. Michael Kirkman, Judge. Affirmed.
Sheila O’Connor, 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, Steve
Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and
Respondent.
This is an appeal from the denial of a petition for resentencing under
Penal Code,1 section 1170.95. Appellant had previously pleaded guilty to
voluntary manslaughter but sought the same relief as might be available had
he pleaded guilty to murder. The trial court dismissed the petition because
the statute applies only to first or second degree murder.
We will agree with the trial court and the many decisions of the courts
of appeal that have unanimously rejected each of the arguments advanced in
this appeal.
PROCEDURAL BACKGROUND2
In 2016, Donnie Massett pleaded guilty to voluntary manslaughter
(§ 192, subd. (a)) as a lesser included offense of murder and admitted the
offense was committed in association with a criminal street gang (§ 186.22,
subd. (b)(1)(c)). He was sentenced to a determinate term of 16 years in
prison.
In 2019, Massett filed a petition for resentencing under
section 1170.95. In his petition, Massett argued the statute, which does not
mention manslaughter, still applies to that offense. To read it otherwise he
argues would lead to an absurd result, fail to resolve an ambiguity in his
favor, and lead to a denial of equal protection.
The trial court, relying on an unbroken string of appellate opinions
which reject Massett’s arguments, denied the petition.
Massett filed a timely notice of appeal.
1 All further statutory references are to the Penal Code.
2 The issue presented here is a pure question of law. Therefore, we have
omitted a statement of facts.
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DISCUSSION
Massett contends the statute applies to manslaughter as well as to
murder. 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
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.
“(b)
“(1) The petition shall be filed with the court that
sentenced the petitioner and served by the petitioner on
the district attorney, or on the agency that prosecuted
the petitioner, and on the attorney who represented the
petitioner in the trial court or on the public defender of
the county where the petitioner was convicted. If the
judge that originally sentenced the petitioner is not
available to resentence the petitioner, the presiding
judge shall designate another judge to rule on the
petition. The petition shall include all of the following:
“(A) A declaration by the petitioner that he or she is
eligible for relief under this section, based on all the
requirements of subdivision (a).
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“(B) The superior court case number and year of the
petitioner’s conviction.
“(C) Whether the petitioner requests the
appointment of counsel.
“(2) If any of the information required by this
subdivision is missing from the petition and cannot be
readily ascertained by the court, the court may deny the
petition without prejudice to the filing of another
petition and advise the petitioner that the matter cannot
be considered without the missing information.
“(c) The court shall review the petition and determine if
the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file
and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply
within 30 days after the prosecutor response is served.
These deadlines shall be extended for good cause. If the
petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show
cause.
“(d)
“(1) Within 60 days after the order to show cause has
issued, the court shall hold a hearing to determine
whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any
remaining counts in the same manner as if the
petitioner had not been previously been sentenced,
provided that the new sentence, if any, is not greater
than the initial sentence. This deadline may be extended
for good cause.
“(2) The parties may waive a resentencing hearing and
stipulate that the petitioner is eligible to have his or her
murder conviction vacated and for resentencing. If there
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was a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or
was not a major participant in the felony, the court shall
vacate the petitioner’s conviction and resentence the
petitioner.
“(3) At the hearing to determine whether the petitioner
is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements
attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining
charges. The prosecutor and the petitioner may rely on
the record of conviction or offer new or additional
evidence to meet their respective burdens.
“(e) If petitioner is entitled to relief pursuant to this
section, murder was charged generically, and the target
offense was not charged, the petitioner’s conviction shall be
redesignated as the target offense or underlying felony for
resentencing purposes. Any applicable statute of
limitations shall not be a bar to the court’s redesignation of
the offense for this purpose.
“(f) This section does not diminish or abrogate any rights
or remedies otherwise available to the petitioner.
“(g) A person who is resentenced pursuant to this section
shall be given credit for time served. The judge may order
the petitioner to be subject to parole supervision for up to
three years following the completion of the sentence.”
Massett argues it would be absurd and a denial of equal protection to
apply the statute to only persons convicted of murder, notwithstanding the
plain language of the statute. He further argues the statute is ambiguous
because one who pleads guilty to avoid trial on an impermissible application
of natural and probable consequences can take the benefit of the new remedy.
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He ignores that the statute declares it applies to people convicted of murder
and not lesser or related offenses.
Massett argues all of the Court of Appeal decisions rejecting his
arguments were wrongly decided. Specifically, he criticizes the following
cases: 1) People v. Cervantes (2020) 44 Cal.App.5th 884 [Second Appellate
District, Division Six], review denied April 15, 2020; 2) People v. Flores (2020)
44 Cal.App.5th 985 [Fourth Appellate District, Division One], review denied
April 29, 2020; 3) People v. Turner (2020) 45 Cal.App.5th 428 (Turner)
[Fourth Appellate District, Division One], review denied May 13, 2020;
4) People v. Sanchez (2020) 48 Cal.App.5th 914 [Fourth Appellate District,
Division Two], review denied July 15, 2020; and 5) People v. Paige (2020) 51
Cal.App.5th 194 [First Appellate District, Division Two], review denied
September 9, 2020.
There is no contrary authority.
Massett contends each case is wrongly decided on each issue he raised.
We strongly disagree.
While we could revisit all the contentions at length in order to
contribute this court’s analysis of these issues, such analysis has already
occurred. Our opinion in Turner discussed each of the legal issues presented
here and soundly rejected them. Nothing new has been presented here, and
this court has not changed its views since the opinion was filed. We further
note that in all five of the opinions challenged here, our high court has denied
review. Although denial of review does not express the high court’s views, it
is an indication the court has not yet identified a possible error of law that
might need correction.
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Thus, in the interests of judicial economy and in light of the unbroken
line of appellate rejections of the identical legal issues, we again reject the
arguments presented here for the reasons expressed at length in our Turner
opinion.
DISPOSITION
The order denying Massett’s petition under section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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