Filed 11/4/21 P. v. Miskam CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076504
v. (Super.Ct.No. FSB1503713)
DUSTY MATIS MISKAM, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T.
Wilson, Jr., Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant and defendant Dusty Matis Miskam was charged with first degree
murder but pled no contest to voluntary manslaughter. He filed a petition under Penal
Code1 section 1170.95 to vacate the manslaughter conviction. A trial court denied the
petition, concluding that defendant was ineligible for relief under section 1170.95
because he was not convicted of murder. Defendant appeals from the trial court’s order
and contends: (1) to promote the legislative purpose of section 1170.95, relief should
apply to voluntary manslaughter; (2) denying resentencing to those convicted of
manslaughter violates equal protection; and (3) Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437) abrogated the provocative act murder doctrine. We affirm.
PROCEDURAL BACKGROUND
In 2016, defendant was charged by information with murder (§ 187, subd. (a),
count 1) and second degree robbery (§ 211, count 2). He entered a plea agreement and
pled guilty to voluntary manslaughter (§ 192, subd. (a), added count 3) and grand theft
from a person (§ 487, subd. (c), added count 4). In exchange, he was sentenced to a total
term of 11 years in state prison, and counts 1 and 2 were dismissed.
In 2019, following the passage of Senate Bill 1437, which added section 1170.95
to the Penal Code, defendant petitioned for resentencing. The trial court denied the
petition, finding him ineligible for relief because he pled guilty to voluntary
manslaughter.
1 All further statutory references will be to the Penal Code unless otherwise noted.
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DISCUSSION
The Court Properly Denied Defendant’s Petition
Defendant contends the trial court erred when it found him ineligible for section
1170.95 resentencing. We disagree.
A. Section 1170.95 Does Not Apply to Voluntary Manslaughter
Section 1170.95, subdivision (a), provides that “[a] person convicted of felony
murder or murder under a natural and probable consequences theory may 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.” As this court recently
explained, “[b]y its plain language, section 1170.95 thus makes resentencing relief
available only to qualifying persons convicted of murder.” (People v. Sanchez (2020) 48
Cal.App.5th 914, 918 (Sanchez).)
Other courts have interpreted the language of section 1170.95 the same way.
(People v. Cervantes (2020) 44 Cal.App.5th 884, 887 (Cervantes) [“The plain language
of the statute is explicit; its scope is limited to murder convictions.”]; People v. Flores
(2020) 44 Cal.App.5th 985, 993 (Flores) [“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.”]; People v. Turner (2020) 45 Cal.App.5th 428, 435-436
(Turner) [“Relying on the clear language of the statute, courts including ours have
concluded that section 1170.95 is unambiguous and does not provide relief to persons
convicted of manslaughter.”].) These decisions all conclude that the statutory scheme
unequivocally applies only to murder convictions. (See Turner, at p. 436.)
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Defendant asserts that section 1170.95 applies to persons who are convicted of
first degree or second degree murder, and also to those who “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.) He contends that section 1170.95
cannot be interpreted to provide relief only for those convicted of first or second degree
murder, since such interpretation would render the italicized phrase in the statute
surplusage. We rejected the same argument in Sanchez, finding it “unpersuasive because
it ‘ignores the introductory language in section 1170.95, subdivision (a) that limits
petitions to persons “convicted of . . . murder.” ’ ” (Sanchez, supra, 48 Cal.App.5th at
p. 919; see Turner, supra, 45 Cal.App.5th at p. 436.)
Defendant also claims “it is fundamentally unfair to conclude that the Legislature
intended [Senate Bill] 1437 to reverse murder convictions but not lesser convictions
based on the exact same set of facts.” As we stated in Sanchez, “[w]e agree with the
other courts that have rejected the same argument.” (Sanchez, supra, 48 Cal.App.5th at
p. 919, italics added; see Cervantes, supra, 44 Cal.App.5th at p. 887; Flores, supra, 44
Cal.App.5th at pp. 996-997; Turner, supra, 45 Cal.App.5th at pp. 438-439.)
B. Equal Protection
Defendant contends that interpreting section 1170.95 to exclude manslaughter
violates equal protection under the state and federal Constitutions. He acknowledges that
we rejected this contention in Sanchez, and asks us to reconsider our position. (See
Sanchez, supra, 48 Cal.App.5th at pp. 920-921.) However, he has given us no reason to
do so. Excluding those convicted of manslaughter from section 1170.95 does not violate
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equal protection. “ ‘The first step in an equal protection analysis is to determine whether
the defendant is similarly situated with those who are entitled to the statutory benefit.’ ”
(Sanchez, at p. 920.) Defendant, like the defendant in Sanchez, was “ ‘convicted of
voluntary manslaughter, a different crime from murder, which carries a different
punishment.’ ” (Ibid.) In general, “offenders who commit different crimes are not
similarly situated.” (People v. Morales (2019) 33 Cal.App.5th 800, 808.) Defendant,
like the defendant in Sanchez therefore “ ‘has failed to establish the threshold
requirement of an equal protection claim: disparate treatment of similarly situated
persons.’ ” (Sanchez, at p. 920.)
Defendant nonetheless contends there is no rational basis for applying Senate Bill
1437 in a discriminatory manner. He claims that, “[e]xcluding a plea to a less serious
offense would irrationally treat people who have lesser convictions . . . more harshly than
those with [a] more serious conviction.” However, “the Legislature could have
reasonably concluded ‘that the punishment for voluntary manslaughter was appropriate,
but the punishment for murder based on the [natural and probable consequences theory]
could be excessive and reform was needed only there.’ ” (Sanchez, supra, 48
Cal.App.5th at p. 921, see Cervantes, supra, 44 Cal.App.5th at p. 888 [“The decision not
to include manslaughter in section 1170.95 [fell squarely] within the Legislature’s
‘linedrawing’ authority as a rational choice that [was] not constitutionally prohibited.”].)
C. The Provocative Act Murder Doctrine is Inapposite
Defendant additionally asserts that People v. Lee (2020) 49 Cal.App.5th 254 (Lee),
review granted July 15, 2020, S262459, held that Senate Bill 1437 did not abrogate the
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provocative act murder doctrine, and argues that Lee was wrongly decided and “should
not be adopted in this district.” “Under the theory of provocative act murder, the
perpetrator of an underlying crime is held liable for the killing of an accomplice by a
third party.” (People v. Mejia (2012) 211 Cal.App.4th 586, 602.) Here, defendant was
not convicted under the provocative act murder doctrine; rather, he pled guilty to
voluntary manslaughter and is thus ineligible for relief.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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