Filed 6/8/21 P. v. Wallace CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307965
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA049674)
v.
KEVIN DEMPSEY WALLACE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed.
Jonathan E. Demson, 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, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Kevin Dempsey Wallace appeals
from the denial of his petition for resentencing pursuant to Penal
Code section 1170.95. We affirm.
Defendant was convicted by jury of attempted murder (Pen.
Code, § 187, subd. (a), § 664). The jury also found true the
allegations a principal used a firearm in the commission of the
offense and that the offense was committed for the benefit of, at
the direction of, or in association with a criminal street gang
(§ 12022.53, § 186.22). The charges arose from an altercation and
shooting at a gas station convenience store involving multiple
individuals, including defendant and two codefendants who were
fellow gang members. The court sentenced defendant to 29 years
in prison.
In an unpublished opinion, we affirmed defendant’s
conviction. (People v. Wallace (Mar. 6, 2012, B233065) [nonpub.
opn.].)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In August 2020, defendant filed in propria persona a
petition for resentencing pursuant to Penal Code section 1170.95.
On August 20, 2020, the trial court summarily denied defendant’s
petition without appointing counsel. The trial court concluded
defendant had not stated a prima facie case for relief under the
statute because he was convicted of attempted murder, not
murder.
Defendant appealed. He contends the trial court’s
summary denial of his resentencing petition was in error and
violated his rights to due process and the assistance of counsel.
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He argues the statutory amendments effected by Senate Bill 1437
should be broadly interpreted to cover attempted murder and
that it was structural error for the trial court to deny his petition
without first appointing counsel. We disagree.
We find no error in the trial court’s decision to summarily
deny defendant’s petition without first appointing him counsel.
Penal Code section 1170.95, subdivision (c) provides the trial
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.” The statutory language, read in
context, contemplates an initial eligibility determination by the
court. Several courts have interpreted the statutory language
and have concluded that a defendant seeking resentencing is
entitled to appointment of counsel only after demonstrating a
prima facie case. The issue is currently under review by our
Supreme Court. (See, e.g., People v. Lewis (2020) 43 Cal.App.5th
1128, review granted Mar. 18, 2020, S260598; People v. Cornelius
(2020) 44 Cal.App.5th 54, review granted Mar. 18, 2020,
S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, review
granted Mar. 18, 2020, S260493 & People v. Tarkington (2020)
49 Cal.App.5th 892, review granted Aug. 12, 2020, S263219.)
Pending guidance from the Supreme Court, we adopt the
persuasive analyses in these decisions. The statutory framework
supports the trial court’s authority to make an initial eligibility
determination as a matter of law without appointing defendant
counsel. Further, we are not persuaded to depart from our
decision in People v. Falcon (2020) 57 Cal.App.5th 272, review
granted January 27, 2021, S266041. The denial of counsel did
not infringe on defendant’s constitutional rights or amount to
structural error. (Id. at p. 279 [Penal Code “section 1170.95 is an
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act of lenity. If the trial court acted erroneously in declining to
appoint counsel, that error does not constitute a violation of
appellant’s constitutional rights.”].)
Moreover, the trial court did not err in concluding that
defendant could not state a prima facie case for relief. “Senate
Bill 1437 was enacted 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.’ (Stats. 2018,
ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
Penal Code section 1170.95, subdivision (a) provides, in
plain language, that only persons “convicted of felony murder or
murder under a natural and probable consequences theory” may
file a petition seeking resentencing. “When we interpret statutes,
giving effect to legislative purpose is the touchstone of our
mission.” (People v. Valencia (2017) 3 Cal.5th 347, 409.) “The
text of the statute is integral to our understanding of the
statute’s purpose.” (Ibid.) “We must take ‘the language . . . as it
was passed into law, and [we] must, if possible without doing
violence to the language and spirit of the law, interpret it so as to
harmonize and give effect to all its provisions.’ ” (Id. at pp. 409–
410.)
Defendant was convicted of attempted murder, not murder.
The Courts of Appeal are divided on the question of whether the
statutory language may be interpreted as encompassing
convictions for attempted murder. Our Supreme Court is
currently considering the issue. (Compare People v. Lopez (2019)
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38 Cal.App.5th 1087 [attempted murder not within scope of
statute], review granted Nov. 13, 2019, S258175; People v. Muñoz
(2019) 39 Cal.App.5th 738 [same], review granted Nov. 26, 2019,
S258234; People v. Dennis (2020) 47 Cal.App.5th 838 [same],
review granted July 29, 2020, S262184 & People v. Love (2020)
55 Cal.App.5th 273 [same], review granted Dec. 16, 2020,
S265445, with People v. Larios (2019) 42 Cal.App.5th 956
[concluding Senate Bill 1437 abrogated the natural and probable
consequences doctrine for attempted murder but section 1170.95
does not provide relief for attempted murder convictions that
have become final], review granted Feb. 26, 2020, S259983;
People v. Medrano (2019) 42 Cal.App.5th 1001 [amended
statutory language applies to attempted murder and retroactive
relief provisions are applicable to nonfinal attempted murder
convictions], review granted Mar. 11, 2020, S259948 &
People v. Sanchez (2020) 46 Cal.App.5th 637 [same], review
granted June 10, 2020, S261768.)
Pending guidance from the Supreme Court, we believe
Lopez, Muñoz, Dennis and Love are the better reasoned and
adopt their analyses. The trial court did not err in concluding
defendant was not eligible for sentencing relief as to his
conviction for attempted murder, and the court’s denial of his
petition did not violate defendant’s constitutional rights.
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DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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