Filed 3/22/21 P. v. Patino CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C090280
Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-
2011-0006437, SF117955A)
v.
MARCO ANTONIO PATINO,
Defendant and Appellant.
Defendant Marco Antonio Patino appeals the trial court’s order denying his
petition for resentencing pursuant to Penal Code section 1170.95.1 On appeal, defendant
contends (1) the trial court erred when it ruled that his conviction did not implicate
felony-murder principles or the natural and probable consequences doctrine, and (2) his
voluntary manslaughter conviction is eligible for relief under the new law. Because we
disagree with the second contention, we need not reach the first, and we affirm.
1 Further undesignated statutory references are to the Penal Code.
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BACKGROUND
An April 2012 information charged defendant with committing willful, deliberate,
premeditated murder (§ 187) in 2009, and seven other crimes.
In October 2012, the trial court granted the prosecution’s request to amend the
murder charge to voluntary manslaughter (§ 192, subd. (a)), and defendant pleaded guilty
to manslaughter and four other crimes. After the three remaining counts were dismissed,
the trial court imposed a sentence of 29 years eight months in state prison.
“In 2018, the Legislature passed and the Governor signed into law Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which restricted the
circumstances under which a person can be liable for felony murder and abrogated the
natural and probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015.)
[The law added section 1170.95,] . . . a procedure permitting qualified persons with
murder convictions to petition to vacate their convictions and obtain resentencing if they
were previously convicted of felony murder or murder under the natural and probable
consequences doctrine.” (People v. Flores (2020) 44 Cal.App.5th 985, 989 (Flores).)
In July 2019, defendant filed a petition for resentencing, seeking vacatur of his
manslaughter conviction pursuant to section 1170.95, arguing he pleaded guilty to the
manslaughter charge “in lieu of going to trial because [he] believed [he] could have been
convicted of 1st or 2nd degree murder at trial pursuant to the felony[-]murder rule or the
natural and probable consequences doctrine.”
The trial court denied the petition, ruling “evidence presented at the preliminary
examination clearly showed that this case did not involve felony murder or a natural and
probable consequences theory.”
Defendant timely appealed.
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DISCUSSION
I
Defendant’s first claim is that the trial court’s ruling was “not supported by
substantial evidence.” The People argue we need not reach the question, because “the
section 1170.95 process is inapplicable to” defendant.
We agree with the People, for the reasons explained below.
II
Recognizing that his effort to obtain reversal and remand of the trial court’s order
requires resolution of the question whether manslaughter convictions fall within the
purview of section 1170.95, defendant argues “logic and statutory construction require
that he be granted the benefits of a statute.” The People disagree, contending section
1170.95 “applies only to those convicted of murder.”
We agree with the People.
Defendant argues that the only “logical way to read” language in subdivision
(a)(2) of section 1170.95, is that “the Legislature intended those who pleaded to a lesser
crime to avoid a murder conviction to be able to challenge their convictions of the lesser
crime by way of this petition process.” The provision, which states one of the three
threshold (and conjunctive) conditions that a successful petitioner must satisfy, reads:
“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.” (§ 1170.95, subd. (a)(2), italics added.)
We disagree that the only reasonable reading of this language, in context, is that a
manslaughter conviction is eligible for relief pursuant to section 1170.95. (See Flores,
supra, 44 Cal.App.5th at p. 995 [rejecting a similar contention, because it “places
outsized importance on a single clause to the exclusion of the provision’s other
language,” as “the remaining portions of section 1170.95 repeatedly and exclusively refer
to murder, not manslaughter”].)
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Defendant contends that if eligibility for relief under section 1170.95 were limited
to murder convictions, then the language of section 1170.95, subdivision (a)(2) that we
italicized above would be “meaningless or superfluous,” as “there would have been no
reason to include” it.
We disagree, for the reasons provided in People v. Sanchez (2020) 48 Cal.App.5th
914, 919: “Specifying that section 1170.95 applies to murder convictions both by trial
and by guilty plea clarifies that it does not matter how the murder conviction was
obtained for section 1170.95 to apply. Regardless of whether that clarification was
necessary, ‘ “the Legislature may choose to state all applicable legal principles in a
statute rather than leave some to even a predictable judicial decision.” ’ [Citation.]
Express statutory language defining the class of defendants to whom section 1170.95
applies is not surplusage. [Citation.] Such clarification ‘may eliminate potential
confusion and avoid the need to research extraneous legal sources to understand the
statute’s full meaning.’ ”
Even if we assume for the sake of argument that subdivision (a)(2) is ambiguous,
we agree with the analysis in People v. Turner (2020) 45 Cal.App.5th 428, that the
legislative history of Senate Bill No. 1437 reflects that the Legislature wanted to provide
relief only to those who were convicted of felony murder or of murder on a natural and
probable consequences theory. (See Turner, at pp. 436-438.)
Defendant maintains that our conclusion leads to absurd results, because a
defendant convicted after a jury trial “of a now-invalidated theory of felony murder could
have his murder conviction vacated under section 1170.95,” whereas a different
defendant, “who engaged in the same conduct but accepted a voluntary manslaughter
plea deal resulting from the fear of a potential or threatened felony-murder conviction
would continue being saddled with the consequences of that decision.” Defendant insists
that the two defendants “are identically situated” “in terms of culpability”; but the
defendant who accepted the prosecution’s offer “would be punished more harshly.”
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Defendant’s scenario ignores that section 1170.95 contemplates relief for those
convicted “of a now-invalidated theory of felony murder,” only if they can demonstrate
that they “could not be convicted of . . . murder because of changes to [s]ection 188 or
189 made effective” by Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) In addition to
the “actual killer” (§ 189, subd. (e)(1)) and one who with intent to kill assisted the actual
killer (§ 189, subd. (e)(2)), new section 189, subdivision (e)(3) contemplates murder
liability for one who “was a major participant in the underlying felony and acted with
reckless indifference to human life.” Thus, the hypothetical is too general for purposes of
the question before us, as neither of the two individuals in the hypothetical would be
entitled to relief if they were both major participants in an underlying felony and acted
with reckless indifference to human life; but the individual who accepted a voluntary
manslaughter plea would be punished less harshly.
Further, even assuming defendant’s hypothetical is valid, our conclusion that
defendant’s voluntary manslaughter conviction is not eligible for relief pursuant to
section 1170.95 still is not “absurd,” because the Legislature reasonably could have
concluded that reform is necessary only in murder cases. (See Flores, supra,
44 Cal.App.5th at pp. 996-997 [rejecting the contention that an interpretation “limit[ing]
[section 1170.95’s] ameliorative benefits only to defendants convicted of murder” would
be absurd].)
Defendant’s invocation of the rule of lenity is unavailing, because the rule—which
“ ‘generally requires that “ambiguity in a criminal statute should be resolved in favor of
lenity, giving the defendant the benefit of every reasonable doubt on questions of
interpretation” ’ ”—does not apply simply because there are multiple reasonable
interpretations of a penal statute. (People v. Nuckles (2013) 56 Cal.4th 601, 611.) It
applies only in cases of egregious ambiguity, where we can only guess what the
Legislature intended. (Ibid.) “No such uncertainty exists here.” (Ibid.)
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III
Defendant argues “it is a violation of equal protection to exclude” his
manslaughter conviction from section 1170.95 relief. The People disagree, arguing that
defendant is not similarly situated to defendants convicted of murder, and the Legislature
has a rational basis to distinguish between voluntary manslaughter and murder
convictions.
We agree with the People.
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.)
Because defendant was convicted of voluntary manslaughter, a different crime
from murder, that carries a different punishment, he is not similarly situated to those
convicted of murder. (See People v. Cervantes (2020) 44 Cal.App.5th 884, 888
[rejecting an equal protection challenge to section 1170.95 by an offender convicted of
voluntary manslaughter].) Thus, defendant’s equal protection challenge fails at the first
step.
Defendant’s contention—that the relevant similarity is that both he (“who pleaded
guilty to voluntary manslaughter to avoid a felony[-]murder conviction”) and “a prisoner
convicted of felony murder,” suffer from “convictions [that] were obtained before
[Senate Bill No. 1437’s] effective date and where in neither case could a felony[-]murder
conviction now be obtained under the law”—is unpersuasive, as it ignores Cooley’s
guidance that, when considering an equal protection challenge, the relevant inquiry is
whether the claimant is similarly situated for purposes of the law challenged. Section
1170.95’s objective is to provide relief to those convicted of felony murder. Defendant’s
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manslaughter conviction renders him not similarly situated to those the law was intended
to benefit.
DISPOSITION
The judgment (order) is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
HOCH, J.
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