Filed 1/14/21 P. v. Leon CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304478
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA085870)
v.
ROBERT LEON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Leonard J. Klaif, 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, Zee Rodriguez, Charles S. Lee, Idan
Ivri, and Paul S. Thies, Deputy Attorneys General, for Plaintiff
and Respondent.
I. INTRODUCTION
Defendant and appellant Robert Leon 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. PROCEDURAL BACKGROUND
A jury convicted defendant of attempted willful, deliberate,
premeditated murder. (§§ 664/187, subd. (a).) The jury found
true the allegation that the offense was committed for the benefit
of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C). The trial court sentenced defendant to life
in prison with parole eligibility after 15 years. (People v. Sotelo et
al. (Jan. 24, 2011, B219799) [nonpub. opn.].)
On October 11, 2019, defendant filed a petition for
resentencing pursuant to Senate Bill 1437 and section 1170.95.
Under penalty of perjury, defendant declared that a complaint,
information, or indictment had been filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; he was convicted of first or second degree murder under
the felony murder rule or the natural and probable consequences
doctrine; and he could not now be convicted of first or second
degree murder due to the January 1, 2019, changes to sections
188 and 189.
Defendant further declared that he was convicted of first
degree felony murder and could no longer be convicted of that
1 All further statutory references are to the Penal Code.
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offense due to the January 1, 2019, changes to section 189
because he was not the actual killer; he did not, with the intent to
kill, aid and abet in the murder; he was not a major participant
in the felony or act with reckless indifference to human life in the
course of the felony; and the murder victim was not a peace
officer performing his duties or defendant was not reasonably
aware the victim was a peace officer performing his duties.
Defendant requested the trial court appoint counsel to represent
him.
On December 11, 2019, the Los Angeles County District
Attorney filed an opposition to defendant’s petition, arguing that
defendant was ineligible for relief because Senate Bill 1437 does
not apply to the offense of attempted murder. The same day,
without defendant’s presence, and apparently without appointing
counsel for defendant, the trial court summarily denied
defendant’s petition, ruling that his attempted murder conviction
did not qualify for consideration under section 1170.95.
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
the statute as set forth in subdivision (a), including that ‘(1) [a]
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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, review granted
(July 22, 2020, S262835), fn. omitted.)
B. Equal Protection
As noted above, the trial court denied defendant’s petition
because he was convicted of attempted murder and not murder
and thus was ineligible for section 1170.95 resentencing.
Defendant contends the court’s failure to construe section
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1170.95 as applying to the offense of attempted murder violated
his right to equal protection under the federal and California
constitutions. He further contends that the failure to so construe
section 1170.95 leads to an absurd result.
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. (People v. Munoz (2019) 39 Cal.App.5th
738, 760–768, review granted Nov. 26, 2019, S258234 (Munoz);
People v. Lopez (2019) 38 Cal.App.5th 1087, 1107–1112, review
granted Nov. 13, 2019, S258175 (Lopez).) 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.
Munoz, supra, 39 Cal.App.5th at pages 756–760 also
considered and rejected the argument that giving effect to Senate
Bill 1437’s literal language would lead to the absurd result of
persons convicted of the lesser offense of attempted murder
serving longer sentences than those convicted of murder. We
agree with the court’s analysis.
C. Appointment of Counsel
Defendant contends the trial court erred in denying his
petition without appointing counsel to represent him because his
petition alleged a prima facie case. Because section 1170.95 does
not apply to defendants convicted of attempted murder (Munoz,
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supra, 39 Cal.App.5th at p. 754; Lopez, supra, 38 Cal.App.5th at
pp. 1104–1105), defendant’s contention that he was entitled to
the appointment of counsel under section 1170.95 is without
merit. (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 determination
that petitioner ‘falls within the provisions’ of the statute”].)
IV. DISPOSTION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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