Filed 6/8/21 P. v. Xiong CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079367
Plaintiff and Respondent,
(Super. Ct. No. SUF16461B)
v.
YENG XIONG, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Christina
Simpson, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Poochigian, Acting P.J., Peña, J. and Smith, J.
INTRODUCTION
Defendant Yeng Xiong was convicted of attempted murder and discharging a
firearm at an occupied motor vehicle. Following the passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95, asserting he was entitled to resentencing under
the new laws. (Undesignated statutory references are to the Penal Code.) The court
denied defendant’s petition, concluding he was categorically ineligible for relief because
he was not convicted of murder under the felony-murder rule or the natural and probable
consequences doctrine. Defendant appeals the denial of his petition.
We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, a jury convicted defendant of attempted murder (§§ 664, 187) and
discharging a firearm at an occupied vehicle (§ 246). The jury also found true an
allegation that defendant was armed with a firearm during the commission of the
attempted murder.1
In 2019, defendant petitioned the court for resentencing pursuant to section
1170.95. He attached a declaration in which he stated a charging document had been
filed against him allowing the prosecution to proceed under a theory of premeditated
attempted murder under the natural and probable consequences doctrine; at trial, he was
convicted of premeditated attempted murder pursuant to the natural and probable
consequences doctrine; and he could not now be convicted of premeditated attempted
murder in light of changes made to sections 188 and 189, effective January 1, 2019
(pursuant to Senate Bill 1437) because he “was the driver and not the actual shooter,” and
1We grant the People’s motion asking that we take judicial notice of our prior
unpublished opinion in this matter pursuant to Evidence Code sections 452, subdivision (a), and
459, subdivision (a).
2.
the “perpetrator was never convicted.” He also requested the court appoint counsel for
him during the resentencing process.
The court denied defendant’s petition, concluding section 1170.95 did not apply to
his conviction for attempted murder.
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the
court’s denial.
I. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Specifically, newly enacted section 1170.95 permits those “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 and to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender
may file a petition under section 1170.95 where all three of the following conditions are
met:
“(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
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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) 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.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “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).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
II. Analysis
Defendant asserts the court erred in ruling that section 1170.95 does not apply to a
conviction of attempted murder. He argues there are compelling statutory construction
and equal protection reasons to apply Senate Bill 1437 to attempted murder. Defendant
argues attempted murder is a lesser included offense of murder and, accordingly,
remedial legislation should apply to it. He also asserts Senate Bill 1437’s relief is similar
to Proposition 47’s relief, which has been extended to additional crimes. Finally,
defendant asserts he had the right to be personally present and represented by counsel at a
hearing on his petition. The People respond defendant is excluded from relief under
section 1170.95 for his attempted murder conviction, which has long been final, based on
the statute’s legislative history and plain language. They assert individuals convicted of
murder and attempted murder are not similarly situated for purposes of Senate Bill 1437
such that only permitting relief under section 1170.95 to those convicted of murder
violates equal protection. Additionally, even if these individuals are similarly situated for
purposes of Senate Bill 1437, there is a rational basis for not permitting relief to
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attempted murderers under section 1170.95. Finally, they assert the court was not
required to appoint defendant counsel until it determined the petition was not frivolous,
i.e., that defendant falls within the provisions of section 1170.95. Irrespective, they assert
the denial of right to counsel at this stage was harmless and did not amount to structural
error. We affirm the denial of defendant’s petition.
A. Section 1170.95 establishes a resentencing mechanism for defendants
convicted of murder under a now invalidated theory
First, we reject defendant’s contention he is entitled to relief under section 1170.95
from his attempted murder conviction. As we have previously explained, “[t]he plain
language of section 1170.95, subdivision (a) limits relief to persons ‘convicted of felony
murder or murder under a natural and probable consequences theory [to] file a petition
with the court ….’ No language in section 1170.95 references relief to persons convicted
of attempted murder.” (People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review
granted Mar. 11, 2020, S259948 (Medrano); see People v. Larios (2019) 42 Cal.App.5th
956, 970, review granted Feb. 26, 2020, S259983 [“section 1170.95 is limited to certain
murder convictions and excludes all other convictions”].) The legislative history of
Senate Bill 1437 also supports a conclusion the relief provided for in section 1170.95 is
limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder. (Medrano, supra, at p. 1017.) And, notably, we have
found no case reaching the opposite conclusion, that is, one not convicted of murder is
eligible for resentencing under section 1170.95’s statutory language.
And even if attempted murder was considered to be a lesser included offense of
murder, as defendant argues, concluding that section 1170.95’s petition procedure is only
available to those convicted of murder is not so absurd that we must override the plain,
unambiguous language of section 1170.95. (See People v. Alaybue (2020) 51
Cal.App.5th 207, 225; accord, In re D.B. (2014) 58 Cal.4th 941, 948.) Rather, as
discussed post, there was a rational basis for the Legislature to limit relief under this
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section to those convicted of murder.2 (See In re D.B., supra, at p. 948 [“To justify
departing from a literal reading of a clearly worded statute, the results produced must be
so unreasonable the Legislature could not have intended them”]; People v. Flores (2020)
44 Cal.App.5th 985, 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.… Had the Legislature intended to make section 1170.95 available
to defendants convicted of [other crimes], it easily could have done so”].)
B. Limiting relief under section 1170.95 does not violate equal protection
We also cannot conclude section 1170.95’s limited avenue for relief to those
convicted of felony murder or murder under a natural and probable consequences theory
violates equal protection principles. In evaluating defendant’s equal protection argument,
we conclude a rational basis review applies because a criminal defendant does not have a
fundamental interest in a specific term of imprisonment or in the designation a particular
crime receives. (See People v. Wilkinson (2004) 33 Cal.4th 821, 838; People v. Munoz
(2019) 39 Cal.App.5th 738, 762, review granted Nov. 26, 2019, S258234.)
Defendant attempts to distinguish Wilkinson and asserts his equal protection claim
should instead be subject to a strict scrutiny analysis. He argues Senate Bill 1437 is more
than a sentencing statute and does not involve alternative penal statutes. He asserts
Senate Bill 1437 revised murder liability to eliminate nonmalice murder and
decriminalized the conduct for which he was convicted. He further contends that “[t]he
right not to be prosecuted for non-criminal conduct is certainly a fundamental liberty
interest requiring strict scrutiny.” We disagree with defendant’s characterization of the
2 In reaching this conclusion, we are not holding, as defendant suggests, that
Senate Bill 1437 had no effect on the crime of attempted murder. Rather, our conclusion
is simply that the plain language and legislative history of section 1170.95 establishes
relief is only available under this section to those convicted of felony murder or murder
under a natural and probable consequences theory. (See Medrano, supra, 42 Cal.App.5th
at pp. 1015–1017, review granted.)
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effect of the legislation; it did not “decriminalize” his conduct or render it “non-
criminal.” Rather, “[a] successful Senate Bill 1437 petitioner’s criminal culpability does
not simply evaporate; a meritorious section 1170.95 petition is not a get-out-of-jail free
card. Instead, the petitioner is resentenced on the remaining convictions. If the murder
was charged ‘generically’ and the target offense was not charged, the murder conviction
must be redesignated as the target offense or underlying felony for resentencing purposes.
(§ 1170.95, subds. (d)(3), (e).)” (People v. Munoz, supra, 39 Cal.App.5th at pp. 764–765,
review granted.)
Furthermore, the matter at issue here is whether section 1170.95’s petitioning
procedure should be extended to cover those convicted of attempted murder despite the
plain language and legislative history of the statute. The purpose of section 1170.95 is to
provide an avenue for a defendant convicted of murder under a now prohibited theory
pursuant to Senate Bill 1437 to seek resentencing, i.e., to seek a lower sentence as a result
of the legislation. And, as discussed, People v. Wilkinson held a criminal defendant does
not have a fundamental interest in a specific term of imprisonment or in the designation a
particular crime receives. (33 Cal.App.5th at p. 838.) Thus, we cannot conclude a strict
scrutiny analysis applies to our equal protection analysis of this section. Rather, a
rational basis review is appropriate.
And here, even if we were to assume, arguendo, defendants convicted of
attempted murder under a felony-murder or natural and probable consequences theory
could establish they are “similarly situated” to those convicted of murder under a felony-
murder or natural and probable consequences theory for purposes of Senate Bill 1437,
there is a rational basis for the Legislature’s decision to grant relief pursuant to section
1170.95 only to murder convictions based on judicial economy and the financial costs
associated with reopening both final murder and final attempted murder convictions. As
our sister courts have reasoned:
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“There may well be sound policy reasons for the Legislature to adopt
ameliorative provisions like those in Senate Bill 1437 for individuals
charged with, or convicted of, attempted murder under the natural and
probable consequences doctrine. But the Legislature’s decision to limit
sentencing reform at this time to offenders in cases of murder is certainly
rational. First, the gap between a defendant’s culpability in aiding and
abetting the target offense and the culpability ordinarily required to convict
on the nontarget offense is greater in cases where the nontarget offense is
murder, than where the nontarget offense is attempted murder or, in the
prosecutor’s discretion, aggravated assault. The Legislature could have
reasonably concluded reform in murder cases ‘was more crucial or
imperative.’ …
“Second, the process created in section 1170.95 for those convicted
of felony murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate that conviction and to be
resentenced is not cost free. The staff of the Senate Appropriations
Committee estimated, if 10 percent of the inmates eligible for relief under
Senate Bill 1437 petitioned the courts for resentencing, additional court
workload costs would approximate $7.6 million. The committee’s report
expressed concern that this increase in workload ‘could result in delayed
court services and would put pressure on the General Fund to fund
additional staff and resources.’ (Sen. Com. Appropriations Report, p. 3.)
Additional expenditures would also be required to transport petitioners in
custody to and from court hearings. (Ibid.)
“In a world of limited resources, it is reasonable for the Legislature
to limit the scope of reform measures to maintain the state’s financial
integrity.” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1111–1112, fn.
omitted, review granted Nov. 13, 2019, S258175; see People v. Munoz,
supra, 39 Cal.App.5th at pp. 763–765, review granted; accord, Medrano,
supra, 42 Cal.App.5th at p. 1017, review granted; People v. Larios, supra,
42 Cal.App.5th at p. 970, review granted.)
Thus, in light of section 1170.95’s unambiguous language, defendant is
categorically excluded from seeking relief through its petitioning procedure for his
attempted murder conviction, which has long been final. Because there is a rational basis
to exclude defendants convicted of attempted murder from the ambit of section 1170.95,
we find no equal protection violation. For the same reason, we find no violation of
defendant’s due process rights.
8.
C. Any alleged error in failing to appoint counsel was harmless
Finally, based on our conclusion defendant is statutorily ineligible for relief under
section 1170.95, we further conclude any alleged error by the trial court in failing to
appoint defendant counsel during the petition process was harmless. We note that our
sister courts have adopted conflicting interpretations of whether section 1170.95 requires
a trial court to appoint a petitioner counsel immediately upon the filing of a petition for
resentencing under section 1170.95. (Compare People v. Lewis (2020) 43 Cal.App.5th
1128, 1140, review granted Mar. 18, 2020, S260598 [court does not err by denying
petition for resentencing without appointing petitioner counsel because duty to appoint
counsel does not arise unless and until the court makes threshold determination petitioner
“‘falls within the provisions’” of statute] and People v. Verdugo (2020) 44 Cal.App.5th
320, 332–333, review granted Mar. 18, 2020, S260493 [petitioner was not entitled to
appointment of counsel before initial prima facie review of eligibility for relief] with
People v. Cooper (2020) 54 Cal.App.5th 106, 112, review granted Nov. 10, 2020,
S264684 [“when a petitioner files a facially sufficient petition requesting counsel, … the
trial court must appoint counsel and give the parties an opportunity to submit briefing
before denying the petition”]; People v. Daniel (2020) 57 Cal.App.5th 666, 673–674,
review granted Feb. 24, 2021, S266336 [reiterating conclusion in Cooper that trial court
must appoint counsel for petitioner who files facially sufficient petition before court
denies petition for failure to make prima facie showing of entitlement to relief].)
However, we need not decide whether the trial court should have appointed
defendant counsel after he filed his petition because here we cannot conclude defendant
was prejudiced by the lack of counsel. In so concluding, we do not agree with
defendant’s contention that any alleged error by the trial court in failing to appoint
counsel at this juncture was structural error. Rather, any alleged error by the trial court in
failing to appoint defendant counsel after he filed a petition and prior to the issuance of
an order to show cause is subject to review for harmless error. (See People v. Cooper,
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supra, 54 Cal.App.5th at p. 123, review granted [rejecting argument failure to appoint
counsel after petition filing requires per se reversal and instead concluding harmless error
analysis applies]; People v. Daniel, supra, 57 Cal.App.5th at pp. 674–675, review granted
[holding violation of statutory right to counsel upon filing a facially sufficient petition is
not structural error, but instead “susceptible to review for prejudice”]; accord, People v.
Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.)
Defendant’s reliance upon People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse) to
argue the failure to appoint counsel was structural error requiring automatic reversal is
misplaced. In Rouse, an incarcerated defendant filed a petition for resentencing pursuant
to section 1170.18 after Proposition 47 reclassified theft of property valued at less than
$950 as misdemeanor shoplifting. (Rouse, at pp. 294–295.) At the hearing on his
petition, the defendant was not present or represented by counsel. (Id. at p. 296.) The
court found the defendant’s petition to be “well taken.” (Ibid.) It permitted the People to
amend the defendant’s commercial burglary charge, granted the defendant’s petition,
vacated the original sentence, and resentenced the defendant. (Ibid.) The Second District
Court of Appeal, Division Eight, concluded the defendant was entitled to the assistance
of counsel at the resentencing hearing on his petition under section 1170.18, subdivision
(a). (Rouse, at p. 301; accord, People v. Simms (2018) 23 Cal.App.5th 987, 998 [holding
defendant has right to be present at Prop. 47 eligibility hearing where eligibility depends
on disputed issues of fact rather than legal issues decided as matter of law].) The court
therefore reversed and remanded for a new resentencing hearing on that basis. (Rouse, at
p. 301.)
Contrary to defendant’s contentions, he did not have an absolute right to a hearing.
Rather, petitioners only have a right to a hearing under section 1170.95 if they have made
a prima facie showing of entitlement to relief. (See § 1170.95, subds. (c) & (d) [“If the
petitioner makes a prima facie showing that he or she is entitled to relief, the court shall
issue an order to show cause. [¶] … Within 60 days after the order to show cause has
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issued, the court shall hold a hearing to determine whether to vacate the conviction and to
recall the sentence and resentence the petitioner”].) And the Rouse court did not consider
whether a defendant’s right to counsel attaches at some point before a resentencing
hearing is held, as is at issue here. We have found no cases, nor does defendant point us
to any, that hold a court’s failure to appoint a petitioner counsel before a hearing under
section 1170.95 amounts to structural error. Thus, Rouse does not assist defendant.
Rather, the trial court’s error here was “harmless under any standard of review.”
(People v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8, 2020,
S262481, citing Chapman v. California (1967) 386 U.S. 18, 24 [constitutional error] and
People v. Watson (1956) 46 Cal.2d 818, 836 [state law error]; see People v. Daniel,
supra, 57 Cal.App.5th at p. 678, review granted [applying harmless error standard under
Watson]; People v. Law, supra, 48 Cal.App.5th at p. 826, review granted [applying
harmless beyond a reasonable doubt standard under Chapman].) As discussed, defendant
is categorically ineligible for relief pursuant to section 1170.95. Thus, even if counsel
had been appointed below, the result would be no different.
DISPOSITION
The court’s order denying defendant’s section 1170.95 petition for resentencing is
affirmed.
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