Filed 4/12/21 P. v. Tittle CA4/1
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COURT OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077928
Plaintiff and Respondent,
v. (Super. Ct. No. SCD176296)
DARRELL JAMES TITTLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In October 2004, a jury convicted defendant Darrell James Tittle of
voluntary manslaughter (Pen. Code,1 § 192) among other offenses. In
January 2019, defendant filed a petition for resentencing pursuant to section
1 All further statutory references are to the Penal Code.
1170.95. On August 3, 2020, the court denied the petition, finding defendant
was statutorily ineligible because he had not been convicted of murder.
Defendant appealed. Unable to identify any arguable issues, appellate
counsel has sought independent review of the record pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S.
738 (Anders). Affirmed.
FACTUAL BACKGROUND
This summary is taken from defendant’s direct appeal in People v.
Tittle (May 5, 2006, D045845) [nonpub. opn.] (Tittle I). Defendant has
requested we take judicial notice of that opinion and we grant his request.
Defendant and codefendant Na’il Downey,2 then members and
associates of a Lincoln Park street gang, were stepbrothers by marriage. On
June 15, 2003, they traveled to Mission Bay Park in San Diego to meet up
with other gang members and attend a festival. When they arrived, they saw
people there who were associated with a rival gang, the Skyline Pirus.
Defendant and Downey walked quickly toward the rival gang members where
they exchanged hostile and derogatory words. One Skyline member punched
defendant in the face after a soda can was thrown at that member. The
gangs then exchanged blows. (Tittle, supra, at *5.)
Within seconds of the fight breaking out, Downey pulled out a .38
caliber revolver from his waistband and fired between four and six shots at
the Skyline group. Everyone fled after the shots were fired and police
immediately arrived. Skyline member Travis Thomas was hit in the upper
chest by one bullet and died within the hour. A second bullet passed through
the calf of another Skyline member, causing great bodily injury. A third
bullet hit the foot of yet another Skyline member. (Tittle, supra, at *6–7.)
2 Downey is not a party to this appeal.
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Following a lengthy investigation which saw multiple events of
intimidation, defendant and Downey were arrested.
PROCEDURAL BACKGROUND
On July 29, 2004, defendant, Downey and a third individual were
charged by amended information in count 1 with the murder of Thomas
(§ 187, subd. (a)); and with special allegations (§§ 12022.53, subds. (d) and
(e)(1) [use of a firearm] & 186.22, subd. (b)(1) [committed for the benefit of a
street gang].) In counts 2 and 3 they were charged with attempted murder
(§§ 664 & 187, subd. (a)); and also with special allegations (§§ 12022.53,
subds. (c), (d) and/or (e)(1) [use of a firearm] & 186.22, subd. (b)(1) [committed
for the benefit of a street gang].) The amended information further alleged
defendant had suffered a prison prior (§ 667.5, subd. (b)); one serious felony
prior (§ 667, subd. (a)(1)); and one strike prior (id., subds. (b)-(i).)
On October 1, 2004, a jury found defendant in count 1 not guilty of
murder but guilty of the lesser included offense of voluntary manslaughter
(§ 192), and found true defendant committed count 1 for the benefit of a
street gang (§ 186.22, subd. (b)(1)). The jury also found defendant not guilty
of attempted murder in counts 2 and 3, but as to each count found he was
guilty of the lesser offense of attempted voluntary manslaughter. Defendant
waived jury on the alleged priors and the court made true findings as to the
prison prior, serious felony prior, and strike prior. (Tittle I, supra, at *2–3.)
On November 11, 2005, the court sentenced defendant to a total term of
28 years in prison. (Tittle I, supra, at *3.) This court in Tittle I reversed
defendant’s convictions on counts 2 and 3 for attempted voluntary
manslaughter based on instructional error. (Id. at *68.)
As noted, on January 9, 2019, defendant filed a pro. per. petition and
supporting documentation under 1170.95 concerning his remaining
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conviction, and requested the conviction be reduced and dismissed. He also
requested counsel be appointed for him. A motion in opposition was filed by
the People. The court summarily denied the petition, finding defendant had
not made a prima facie showing he fell within section 1170.95 because he was
not convicted of murder.
As also noted, appellate counsel has filed a brief under Wende and
Anders, stating he has read and thoroughly reviewed the record, and has
consulted with Appellate Defenders, Inc. Counsel states he has found no
specific grounds for reversal or modification of the case, and asks we
independently review the record to determine if we can identify any such
grounds. Under Anders, counsel requests we consider whether the trial court
erred in failing to grant relief under section 1170.95, where defendant was
convicted of voluntary manslaughter and the jury was instructed on the
natural and probable consequences theory.
Defendant has filed a supplemental brief in his own behalf, raising
essentially the same question counsel points out with respect to section
1170.95.
We have reviewed the entire record and focused attention of the
question of applicability of section 1170.95.
DISCUSSION
“ ‘If the language [of a statute] is clear, courts must generally follow its
plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.’ ” (People v. Flores (2020) 44
Cal.App.5th 985, 992.) “[S]ection 1170.95 authorizes only a person who was
‘convicted of felony murder or murder under a natural and probable
consequences theory [to] file a petition with the court that sentenced the
petitioner to have the petitioner's murder conviction vacated . . . .’ (Id., subd.
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(a), italics added.) If the petitioner makes a prima facie showing that he or
she is entitled to relief, the sentencing court must ‘hold a hearing to
determine whether to vacate the murder conviction and to recall the sentence
and resentence the petitioner on any remaining counts . . . .’ (Id., subd. (d)(1),
italics added.) In lieu of a resentencing hearing, the parties may stipulate
that ‘the petitioner is eligible to have his or her murder conviction vacated’
and to be resentenced. (Id., subd. (d)(2), italics added.)” (Flores, at p. 993.)
“Through its repeated and exclusive references to murder, the plain language
of section 1170.95 limits relief only to qualifying persons who were convicted
of murder.” (Flores, at p. 993; see People v. Cervantes (2020) 44 Cal.App.5th
884, 887 (Cervantes) [noting the “plain language of [section 1170.95] is
explicit; its scope is limited to murder convictions”].)
“Section 1170.95 does not mention, and thus does not provide relief to,
persons convicted of manslaughter, which, ‘while a lesser included offense of
murder, is clearly a separate offense . . . .’ [Citation.] Had the Legislature
intended to make section 1170.95 available to defendants convicted of
manslaughter, it easily could have done so.” (Flores, supra, 44 Cal.App.5th at
p. 993; see Cervantes, supra, 44 Cal.App.5th at p. 887 [concluding there “is no
reference [in section 1170.95] to the crime of voluntary manslaughter”].)
Because the plain language of section 1170.95 is clear, and does not
lead to an absurd result, we will follow its plain meaning and conclude that
convictions for voluntary manslaughter are ineligible for relief under section
1170.95. In so doing, we are in accord with the uniform line of decisions by
other Courts of Appeal that hold section 1170.95 applies to defendants
convicted of murder, not to defendants who plead to and are convicted of a
lesser offense. (People v. Sanchez (2020) 48 Cal.App.5th 914, 916 [charged
with first degree murder with a gang enhancement, pled guilty to voluntary
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manslaughter and admitted enhancement]; People v. Turner (2020) 45
Cal.App.5th 428, 431–432 [charged with first degree murder and firearm and
gang enhancements, pled guilty to voluntary manslaughter and admitted
firearm enhancement]; Flores, supra, 44 Cal.App.5th at pp. 989–990 [charged
with murder with robbery and gang enhancements, pled guilty to voluntary
manslaughter and admitted enhancements]; Cervantes, supra, 44
Cal.App.5th at p. 887 [charged with murder, pled no contest to voluntary
manslaughter].) We therefore conclude the court properly denied defendant’s
section 1170.95 petition.
Following our independent review, we conclude there are no other
issues which would modify or reduce the sentence or otherwise reverse this
case.
Defendant has been represented by competent counsel on this appeal.
DISPOSITION
The order denying defendant relief under section 1170.95 is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
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