Filed 3/2/21 P. v. Monroy CA4/3
(unmodified opinion attached)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G058919
v. (Super. Ct. No. 02CF0424)
MARCO ANTONIO MONROY, ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
Defendant and Appellant.
This court hereby orders that the opinion filed herein on February 11, 2021,
be modified as follows:
1. On page 6, last paragraph, first sentence, the word “attempted” should be
inserted before the word “murder.”
This modification does not change the judgment.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
Filed 2/11/21 P. v. Monroy CA4/3 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G058919
v. (Super. Ct. No. 02CF0424)
MARCO ANTONIO MONROY, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
Tonja R. Torres, 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, Michael Pulos, Lynne G.
McGinnis and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 2005, defendant Marco Antonio Monroy was convicted of eight counts
involving several victims and sentenced to a total term of 25 years, 4 months, plus life
with the possibility of parole. One of the counts was attempted murder (Pen. Code, §§
1
664, 187). On direct appeal, we affirmed the judgment. (People v. Monroy (Dec. 14,
2006, G035580) [nonpub. opn.] (Monroy I).)
In January 2020, defendant filed a petition for resentencing in superior
court pursuant to section 1170.95. The petition incorrectly stated defendant was
convicted of either second degree murder or felony murder. The court summarily denied
the petition. We conclude that because defendant was not entitled to relief as a matter of
law, the order must be affirmed.
I
FACTS
Because this appeal concerns only an issue of law, we need not review the
facts in any detail. A full recitation of the facts can be found in Monroy I. Suffice to say
that defendant was one of three men who kidnapped, assaulted, and shot one of the
victims, which led to the attempted murder charge relevant here. (Monroy I, supra,
G035580.)
II
DISCUSSION
The Legislature adopted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437) “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
1
Subsequent statutory references are to the Penal Code.
2
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f); see § 189, subd. (e).) SB 1437 therefore amended
sections 188 and 189 to limit the natural and probable causes doctrine and the felony-
murder rule. (See §§ 188, 189, subd. (e).)
Additionally, SB 1437 enacted section 1170.95. Under subdivision (a) of
section 1170.95, a person convicted of first or second degree murder may petition a trial
court for resentencing “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.”
Procedurally, if a petitioning defendant makes a prima facie showing that
section 1170.95, subdivision (a) applies, the trial court must appoint counsel and order
briefing to determine if relief is appropriate. (§ 1170.95, subd. (c).) “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. . . .” (§ 1170.95, subd. (d)(3).)
Defendant argues the trial court erred by summarily denying his motion
without appointing counsel or holding a hearing, and he further asserts the court erred by
deciding that attempted murder is ineligible for relief under section 1170.95. This is a
pure legal issue involving statutory interpretation; therefore, our review is de novo.
(See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
The two issues defendant raises here are intertwined. A petition under
section 1170.95 “must include ‘[a] declaration by the petitioner that he or she is eligible
3
for relief under this section, based on all the requirements of subdivision (a).’
(§ 1170.95, subd. (b)(1)(A).) Those requirements are (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 Section 188 or 189
made effective January 1, 2019.’ (§ 1170.95, subd. (a).) Second, the petition must
include ‘[t]he superior court case number and year of the petitioner’s conviction.’
(§ 1170.95, subd. (b)(1)(B).) And finally, the petition must state ‘[w]hether the petitioner
requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)” (People v. Cooper
(2020) 54 Cal.App.5th 106, 114.) “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.” (§ 1170.95, subd. (c).) Even if the trial court errs in failing to
appoint counsel, any such error is harmless if the defendant is not entitled to relief as a
2
matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 673.)
Thus, the question we must determine here is whether defendant’s
conviction for attempted murder, rather than murder, falls within the ambit of section
1170.95. There are two lines of authority, and this issue is under review by the California
Supreme Court, which, of course, will have the final say in this matter. In People v.
Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, S258175;
People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz), review granted Nov. 26, 2019,
S258234; People v. Dennis (2020) 47 Cal.App.5th 838 (Dennis), review granted July 25,
2
We further reject any argument that a denial of counsel in section 1170.95 proceedings
is a violation of the Sixth Amendment. (People v. Anthony (2019) 32 Cal.App.5th 1102,
1156-1157.)
4
2020, S262184; and People v. Alaybue (2020) 51 Cal.App.5th 207, a number of districts
(including this one) held that section 1170.95 does not apply to attempted murder. A
conflicting line of authority from the Fifth District has reached the opposite conclusion.
(See People v. Medrano (2019) 42 Cal.App.5th 1001, 1008-1009, review granted Mar.
11, 2020, S259948, People v. Larios (2019) 42 Cal.App.5th 956, review granted Feb. 26,
2020, S259983, and People v. Sanchez (2020) 46 Cal.App.5th 637, review granted June
10, 2020, S261768.)
The express statutory language of amended sections 188 and 189 state they
apply to murder. Munoz, supra, 39 Cal.App.5th at page 754, stated: “The plain language
of [the amended sections 188 and 189, and section 1170.95] compels the conclusion that
Senate Bill 1437 pertains only to murder, not attempted murder.”
As the court discussed in Lopez, supra, 38 Cal.App.5th at page 1104:
“[T]here is nothing ambiguous in the language of Senate Bill 1437, which, in addition to
the omission of any reference to attempted murder, expressly identifies its purpose as the
need ‘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.’
[Citation.] Had the Legislature meant to bar convictions for attempted murder under the
natural and probable consequences doctrine, it could easily have done so.”
“The Legislature’s obvious intent to exclude attempted murder from the
ambit of the Senate Bill 1437 reform is underscored by the language of new section
1170.95, the provision it added to the Penal Code to permit individuals convicted before
Senate Bill 1437’s effective date to seek the benefits of the new law from the sentencing
court. Section 1170.95, subdivision (a), authorizes only those individuals ‘convicted of
felony murder or murder under a natural and probable consequences theory’ to petition
for relief; and the petition must be directed to ‘the petitioner’s murder conviction.’
5
Similarly, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to
determine whether to vacate ‘the murder conviction.’” (Lopez, supra, 38 Cal.App.5th at
pp. 1104-1105.)
“The plain language meaning of Senate Bill 1437 as excluding any relief
for individuals convicted of attempted murder is fully supported by its legislative history.
[Citations.] 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 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.” (Lopez, supra,
38 Cal.App.5th at p. 1105.)
We adopted this reasoning in Dennis, supra, 47 Cal.App.5th at pages 845-
846. We further rejected the reasoning of People v. Medrano, supra, 42 Cal.App.5th
1001, and the cases following it as flawed. (Dennis, at p. 846.)
We have not been persuaded to change our view, and continue to join the
majority of courts in concluding that murder is not within the ambit of section 1170.95.
The statute is clear on its face, and we cannot add language the Legislature itself chose
not to include. We further concur with Lopez, supra, 38 Cal.App.5th at pages 1107-1112,
that the Legislature’s choice not to include attempted murder within the ambit of section
1170.95 does not violate equal protection principles. “The remedy for any potentially
inequitable operation of section 1170.95 lies with the Legislature. If the Legislature
concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill
6
1437’s reach, it has only to amend the law.” (Munoz, supra, 39 Cal.App.5th at pp. 759-
760.)
Circling back to the issue of appointment of counsel, we conclude
defendant’s petition was deficient because he was not convicted of first or second degree
murder. (§ 1170.95, subd. (a).) We reject any contention that because his petition
claimed he had suffered such a conviction, the court was required to accept defendant’s
statement despite the fact that it was clearly wrong. He was convicted of attempted
murder, not murder. Moreover, at a minimum, because he was not entitled to relief as a
matter of law, any failure to appoint counsel was harmless. (People v. Daniel, supra, 57
Cal.App.5th at p. 673.) Accordingly, the trial court did not err either by denying the
appointment of counsel and holding a hearing, or by concluding that section 1170.95
does not apply to attempted murder.
III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
7