Filed 8/19/21 P. v. King CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B308568
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA084339)
v.
SABRINA OCTAVIA KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Darrell Mavis, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Stacy Schwartz and
Eric J. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
Sabrina King appeals from the trial court’s denial of her
petition for resentencing under Penal Code section 1170.95.1 She
argues the trial court erred in (1) concluding that section 1170.95
does not apply to manslaughter convictions, and (2) not
appointing counsel for her. We agree with a long line of cases
that hold only defendants convicted of murder are eligible for
relief under section 1170.95. Because appellant’s manslaughter
conviction appears on the face of her petition, the trial court
correctly denied it. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, appellant pled no contest to voluntary
manslaughter and robbery, and admitted a gang enhancement
allegation. The trial court sentenced her to 21 years in prison.
In 2019, she petitioned for resentencing under section
1170.95. The trial court summarily denied the petition without
appointing counsel or receiving any additional briefing. On
September 8, 2020, appellant filed a second petition for
resentencing. The court again summarily denied relief,
concluding that section 1170.95 “does not apply to defendants
convicted of voluntary manslaughter, including through a guilty
plea.”
Appellant timely appealed.
DISCUSSION
1. Appellant is Not Eligible for Resentencing
a. Section 1170.95 does not apply to manslaughter
convictions
The trial court’s ruling that section 1170.95 does not apply
to manslaughter is consistent with a series of Court of Appeal
1 All further statutory references are to the Penal Code.
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decisions to that effect. (See People v. Harris (2021)
60 Cal.App.5th 557, 565–569 (Harris); People v. Paige (2020) 51
Cal.App.5th 194, 200–204 (Paige); People v. Sanchez (2020),
48 Cal.App.5th 914, 917–920 (Sanchez); People v. Turner (2020)
45 Cal.App.5th 428, 434–438 (Turner); People v. Flores (2020)
44 Cal.App.5th 985, 992–997 (Flores); People v. Cervantes (2020)
44 Cal.App.5th 884, 887 (Cervantes).) Appellant cites no contrary
authority, and we are aware of none.
We agree with our sister courts that “the language of the
statute unequivocally applies to murder convictions. There is no
reference to the crime of voluntary manslaughter. To be eligible
to file a petition under section 1170.95, a defendant must have a
first or second degree murder conviction. The plain language of
the statute is explicit; its scope is limited to murder convictions.
[Citation.] [¶] . . . The plain reading of the statute is consistent
with the legislative goal of Senate Bill No. 1437 (2017–2018 Reg.
Sess.). That bill was enacted to correct the unfairness of the
felony murder rule so that murder convictions could be vacated
by filing section 1170.95 petitions. [Citations.] The felony
murder rule, however, is not applicable to the crime of voluntary
manslaughter.” (Cervantes, supra, at p. 887.)
Appellant counters that she was initially charged with
murder but pled guilty to manslaughter. She argues eligibility
for resentencing under subdivision (a)(2) of the statute because
she “accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder.” We
agree with the Flores, Turner, Paige, Sanchez and Harris courts,
all of which correctly rejected this argument. A manslaughter
plea, even one entered when defendant was originally charged
with murder, does not fall within section 1170.95.
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b. The exclusion of manslaughter from section 1170.95
eligibility does not violate equal protection or due process
Appellant argues that to deny her relief violates her
constitutional rights to equal protection and due process.
Appellate authority is to the contrary. “[V]oluntary
manslaughter, [is] a different crime from murder, [and] carries a
different punishment. Normally ‘offenders who commit different
crimes are not similarly situated’ for equal protection purposes.
[Citation.] ‘[O]nly those persons who are similarly situated are
protected from invidiously disparate treatment.’ [Citation.]”
(Cervantes, supra, 44 Cal.App.5th at p. 888; see also Harris,
supra, 60 Cal.App.5th at pp. 569–571; Paige, supra,
51 Cal.App.5th at pp. 205–206; Sanchez, supra, 48 Cal.App.5th at
pp. 920–921.) Nor does such an exclusion violate the right to due
process. (Cervantes, supra, 44 Cal.App.5th at p. 889.)
2. Appointment of Counsel
Appellant next contends the trial court erred by summarily
denying her petition without first appointing counsel under
section 1170.95, subdivision (c). We reject that argument under
the holding of our Supreme Court in People v. Lewis (July 26,
2021, S260598) ___ Cal.5th ___ [2021 WL 3137434] (Lewis).
“[W]e conclude that the statutory language and legislative intent
of section 1170.95 make clear that petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition (see § 1170.95, subds. (b), (c)) and that only after the
appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine
whether ‘the petitioner makes a prima facie showing that he or
she is entitled to relief.’ (§ 1170.95, subd. (c).)” (Id. at p. __ [2021
WL 3137434, p. *1].) Here, appellant did not file
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“a facially sufficient petition” under section 1170.95, subdivision
(a). Her petition on its face stated that she was convicted not of
murder but of manslaughter. Under Lewis she was not entitled
to the appointment of counsel.2
Even if we have read the Supreme Court’s opinion too
broadly, Lewis also holds that an appellate court reviews the
denial of counsel for harmless error under People v. Watson
(1956) 46 Cal.2d 818. (Lewis, supra, __ Cal.5th __ [2021 WL
3137434, p.*12].) Appellant “must therefore ‘demonstrate there
is a reasonable probability that in the absence of the error
[s]he . . . would have obtained a more favorable result.’ More
specifically, a petitioner ‘whose petition is denied before an order
to show cause issues has the burden of showing “it is reasonably
probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.” ’ ” (Ibid.; citations
omitted].)
Here, any error was harmless. Even if we were to construe
the petition as facially valid and that counsel should have been
appointed, the trial court would have summarily denied relief
without the issuance of an order to show cause because appellant
2 Lewis held that section 1170.95 requires only a single
prima facie review of the petition, not two as some courts of
appeal had held. (Lewis, supra, __ Cal.5th __ at p. __ [2021 WL
3137434, p.*4].) But the Court explained that its holding does
not restrict the trial court’s ability to weed out facially deficient
petitions before counsel is appointed. “[N]oncomplying petitions
may be quickly screened out under subdivision (b)(2) of
section 1170.95.” (Id. at p.__ [2021 WL 3137434, p.*8].)
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admitted she was convicted after plea of manslaughter. She was,
thus, ineligible for resentencing.
DISPOSITION
The order is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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