People v. Ware CA4/2

Filed 12/23/21 P. v. Ware 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076404

v. (Super.Ct.No. FSB03904)

MARTIN WARE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Robert E. Boyce, 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, Charles C. Ragland and Michael

Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

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 INTRODUCTION

In 1995, a jury convicted defendant and appellant Martin Ware of several crimes,

including two counts of first degree attempted murder. (Pen. Code,1 §§ 664, 187,

subd. (a).) In 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) went into effect and

now allows a defendant convicted of murder to petition a court under section 1170.95 to

have the murder conviction vacated. Defendant filed a petition under section 1170.95.

The trial court dismissed his petition because he was convicted of attempted murder, not

murder.

Defendant appeals, arguing the court erred in denying his petition since the

provisions of Senate Bill No. 1437 apply to defendants convicted of attempted murder.

We disagree and affirm the trial court’s order.

PROCEDURAL BACKGROUND

A jury found defendant guilty of shooting at an occupied vehicle (§ 246, count 1),

two counts of kidnapping for robbery (§ 209, subd. (b), counts 2 & 3), two counts of

kidnapping (§ 207, subd. (a), counts 7 & 8), one count of assault with intent to commit

rape (§ 220, count 6), and two counts of attempted premeditated murder (§§ 664, 187,

counts 9 & 10). The jury also found true various enhancements. A trial court sentenced

defendant to four consecutive life terms with the possibility of parole for the two

attempted murder convictions and two kidnapping for robbery convictions, plus a

1 All further statutory references will be to the Penal Code unless otherwise noted.
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determinate term of 21 years four months for the other convictions and enhancement

findings.

On October 10, 2019, defendant filed a petition for resentencing under section

1170.95, in propria persona, alleging that he was convicted of first or second degree

murder pursuant to the felony murder rule or the natural and probable consequences

doctrine, and that he could not now be convicted of first or second degree murder because

of the amendments to sections 188 and 189. He also requested appointment of counsel.

The People filed an opposition, arguing that defendant was convicted of attempted

murder, and Senate Bill No. 1437 does not apply to attempted murder. The trial court

appointed counsel to represent defendant, and counsel filed a reply brief arguing that

Senate Bill No. 1437 should apply to attempted murder.

On December 11, 2020, the court held a hearing on the petition. The court stated

that attempted murder is not addressed by Senate Bill No. 1437 or section 1170.95 and

therefore denied the petition.

DISCUSSION

Senate Bill No. 1437 Does Not Apply to Attempted Murder

Defendant argues that Senate Bill No. 1437, including the petitioning procedure in

section 1170.95, applies to convictions for both murder and attempted murder. He

contends that excluding attempted murder from relief is incorrect because attempted

murder is a lesser included offense of murder, it would be contrary to legislative intent

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and would result in absurd consequences, and it violates equal protection. We disagree

and conclude that the court properly dismissed his petition.

A. Senate Bill No. 1437

On September 30, 2018, the Governor signed Senate Bill No. 1437. (People v.

Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).) “The legislation, which became

effective on January 1, 2019, addresses certain aspects of California law regarding felony

murder and the natural and probable consequences doctrine by amending Penal Code

sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a

procedure by which those convicted of murder can seek retroactive relief if the changes

in law would affect their previously sustained convictions.” (Id. at pp. 722-723.) “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.’ ” (Id. at p. 723.)

Senate Bill No. 1437 accomplished that purpose by substantively amending

section 188 (defining malice) and section 189 (defining the degrees of murder). “Now, to

be convicted of murder, a principal must act with malice aforethought; malice can no

longer ‘be imputed to a person based solely on his or her participation in a crime.’ ” (In

re R.G. (2019) 35 Cal.App.5th 141, 144; see § 188, subd. (a)(3).) Amended section 189

limits first degree murder liability based on a felony-murder theory to a person who:

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(1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the

actual killer in the commission of first degree murder; or (3) was a major participant in

the underlying felony who acted with reckless indifference to human life. (§ 189,

subd. (e).)

Senate Bill No. 1437 also added section 1170.95, which creates a procedure by

which persons convicted of felony murder or murder under a natural and probable

consequences theory may seek resentencing. (Martinez, supra, 31 Cal.App.5th at

pp. 722-723.) Subdivision (a) of section 1170.95 provides: “(a) 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 when all of the

following conditions apply: [¶] (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

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. [¶] (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.” (Italics added.)

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 B. The Court Properly Dismissed the Petition

We follow the reasoning in People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz),

review granted November 26, 2019, S258234, and find that Senate Bill No. 1437 does

not apply to attempted murder. (Munoz, pp. 753-754.)

The court in Munoz, supra, 39 Cal.App.5th 738, held that Senate Bill No. 1437

plainly and unambiguously applies only to murder because “section 1170.95 . . . speaks

only in terms of murder, not attempted murder.” (Munoz, at p. 754.) As the Munoz court

noted, “[w]here the words of the statute are clear, we are not at liberty to add to or alter

them to accomplish a purpose that is not apparent on the face of the statute or in its

legislative history.” (Id. at p. 755.)

Other appellate courts have concluded that despite attempted murder not being

enumerated in Senate Bill No. 1437, the legislation must be interpreted to include

attempted murder. (See People v. Larios (2019) 42 Cal.App.5th 956, 966 (Larios),

review granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001

(Medrano), review granted March 11, 2020, S259948; see also People v. Sanchez (2020)

46 Cal.App.5th 637 (Sanchez), review granted June 10, 2020, S261768.) Larios and

Medrano held that Senate Bill No. 1437’s changes to sections 188 and 189 preclude

imposition of vicarious liability under the natural and probable consequences doctrine if

the charged offense requires malice aforethought. (Larios, at p. 966; Medrano, at

p. 1013.) As the Larios court explained, section 188, as amended, stated that “ ‘malice

shall not be imputed to a person based solely on his or her participation in a crime’ ”

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(Larios, at p. 966), and contained “no exceptions for attempted murder, which

indisputably requires express malice.” (Id. at p. 967.) Based on section 188, the Larios

court determined Senate Bill No. 1437 modified accomplice liability for both murder and

attempted murder. (Larios, at p. 968.) Accordingly, because the amended statutes

prohibit malice from being imputed to a defendant who aids and abets a target offense

without the intent to kill, the natural and probable consequences doctrine is no longer a

viable theory of accomplice liability for attempted murder. (Larios, at p. 966; Medrano,

at p. 1013.)

However, in Larios and Medrano, the courts found that even if Senate Bill

No. 1437 applied to attempted murder convictions on direct appeal, based on the

unambiguous language in section 1170.95, a defendant convicted of attempted murder

could not file a petition pursuant to section 1170.95. (Larios, supra, 42 Cal.App.5th at

pp. 969-970; Medrano, supra, 42 Cal.App.5th at pp. 1017-1018.) Larios and Medrano

agreed with the reasoning of Munoz “that the relief provided in section 1170.95 is limited

to certain murder convictions and excludes all other convictions, including a conviction

for attempted murder.” (Larios, supra, 42 Cal.App.5th at p. 970; see Medrano, supra, 42

Cal.App.5th at p. 1018.) Larios and Medrano concluded, “there [was] a rational basis for

the Legislature’s decision to grant relief pursuant to section 1170.95 only to murder

convictions and exclude attempted murder convictions based on judicial economy and the

financial costs associated with reopening both final murder and final attempted murder

convictions.” (Medrano, at p. 1018; see Larios, at p. 970.) We agree and find that

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section 1170.95 does not allow a defendant who has been convicted of attempted murder

to apply for relief.

Defendant acknowledges that Larios and Medrano hold that the petitioning

procedures in section 1170.95 are not available to defendants convicted of attempted

murder. Nonetheless, he claims that relief should be permitted to those convicted of

attempted murder because attempted murder is a lesser included offense of murder. In

support of this position, he cites People v. Barrajas (1998) 62 Cal.App.4th 926, People v.

Crowles (1993) 20 Cal.App.4th 114, Hooper v. Deukmejian (1981) 122 Cal.App.3d 987,

and People v. King (1993) 5 Cal.4th 59. However, none of those cases concern Senate

Bill No. 1473, and they are therefore inapposite. We further note that, by section

1170.95’s plain terms, only persons “convicted of felony murder or murder under a

natural and probable consequences theory may file a petition . . . .” (§ 1170.95, subd. (a),

italics added.) “The repeated references to murder convictions in section 1170.95, as

opposed to attempted murder convictions, make clear that Senate Bill 1437’s

ameliorative benefit was meant to reach only the completed offense of murder, not the

distinct offense of attempted murder.” (People v. Alaybue (2020) 51 Cal.App.5th 207,

223 (Alaybue).)

Defendant further argues that construing Senate Bill No. 1437 to apply to murder,

but not attempted murder, would be contrary to the intent of the Legislature and would

result in the absurd consequences of, for example, a defendant who committed an assault

with a deadly weapon where the victim died being guilty of assault; however, for the

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same conduct, if the victim does not die, the defendant would be guilty of the greater

offense of attempted murder. The court in Munoz rejected a similar argument. The

defendant in that case argued that construing Senate Bill No. 1437 to apply only to

murder would result in “ ‘absurdly disparate’ sentencing consequences for the same

conduct, with persons convicted of the lesser offense of attempted murder serving longer

sentences than those convicted of murder.” (Munoz, supra, 39 Cal.App.5th at p. 756, fn.

omitted.) The Munoz court recognized that the language of a statute should not be given

a literal meaning if doing so would result in absurd consequences that the Legislature did

not intend or would frustrate the purpose of the legislation as a whole. However, it

concluded that the Legislature apparently intended to exclude attempted murder from

Senate Bill No. 1437’s reach “and the consequences of that legislative choice are not

clearly absurd.” (Munoz, at p. 757.) The court pointed to “[t]he statute’s uncodified

statement of legislative findings and declarations,” and noted the “repeated references to

‘murder,’ and murder alone,” as well as “the statement that amendment of the natural and

probable consequences doctrine was necessary ‘as it relates to murder.’ ” (Ibid.)

The Munoz court also reasoned that it would not be absurd to abide by the plain

language of the statute, since “it is far from clear that interpreting Senate Bill [No.] 1437

to apply to convictions for murder, but not attempted murder, will always, or typically,

result in longer sentences for the latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758.)

The court noted that “the basic punishment for attempted murder is far less severe than

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that imposed for murder”2 and applying the statute’s plain language does not “undermine

the primary legislative goal of making punishment commensurate with culpability,

because the punishment for attempted murder was already, prior to Senate Bill [No.]

1437’s enactment, less than that imposed for murder.” (Id. at p. 758; see also Alaybue,

supra, 51 Cal.App.5th at p. 224 [“the Legislature could have reasonably concluded that

the need to address sentencing reform was more appropriately directed at persons

convicted of murder as opposed to attempted murder . . . because the punishment for

attempted murder is generally far less than the punishment imposed for murder.”].)

Moreover, the Munoz court observed that the “ ‘absurdity exception requires much

more than [a] showing that troubling consequences may potentially result if the statute’s

plain meaning were followed or that a different approach would have been wiser or

better,’ ” and, further, that the absurdity doctrine should be used only in extreme cases.

(Munoz, supra, 39 Cal.App.5th at p. 758; see People v. Morales (2019) 33 Cal.App.5th

800, 806.) Here, although the potential consequences suggested by defendant may be

troubling, we do not find the plain meaning of Senate Bill No. 1437 to be “so absurd in

its results that we would be permitted to disregard the literal language used in the

statute.” (Alaybue, supra, 51 Cal.App.5th at p. 225; see Munoz, supra, 39 Cal.App.5th at

p. 758.)

2 We note that the punishment for first degree murder is death, life in prison
without the possibility of parole, or 25 years to life in state prison. (See § 190, subd. (a).)
The penalty for second degree murder is, with some exceptions, generally 15 years to life
in state prison. (Ibid.) The penalty for attempted murder is life in prison with the
possibility of parole (with a minimum term of seven years) or a determinate term of five,
seven, or nine years. (See § 664, subd. (a).)
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 Defendant further argues that interpreting Senate Bill No. 1437 and section

1170.95 as only permitting relief for murder and not attempted murder violates equal

protection, since “murder and attempted murder are ‘similarly situated’ for the purpose of

section 1170.95 because by definition both require malice.” We disagree. “The concept

of equal treatment under the laws means that persons similarly situated regarding the

legitimate purpose of the law should receive like treatment. [Citation.] ‘ “The first

prerequisite to a meritorious claim under the equal protection clause is a showing that the

state has adopted a classification that affects two or more similarly situated groups in an

unequal manner.” [Citations.] This initial inquiry is not whether persons are similarly

situated for all purposes, but “whether they are similarly situated for purposes of the law

challenged.” ’ ” (People v. Morales (2016) 63 Cal.4th 399, 408.)

“[P]ersons convicted of murder are not similarly situated to persons convicted of

attempted murder for purposes of Senate Bill 1437.” (Munoz, supra, 39 Cal.App.5th at

pp. 760-761.) “Attempted murder and murder are different offenses. [Citations.]

Significantly, attempted murder is punished less harshly than murder. ‘These different

penal consequences necessarily mean, for purposes of sentencing reform, an individual

charged with, or convicted of, murder under the natural and probable consequences

doctrine is not similarly situated to an individual confronting a charge of attempted

murder . . . under the doctrine.’ ” (Id. at p. 761.)

Defendant’s equal protection claim also fails because he has not shown the

absence of a rational basis for excluding attempted murder convictions from Senate Bill

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No. 1437’s reach. As explained extensively in Munoz, “balancing the costs involved, the

fact the penalties for attempted murder are less severe than for murder, and the length of

prison terms mandated for many potentially relevant felonies, the Legislature could

rationally have determined that extending Senate Bill 1437 relief to attempted murderers

would put too great a strain on state resources, while resulting—in most cases—in

insignificant decreases in the sentences served for attempted murder convictions. The

Legislature could reasonably conclude its aims could be achieved by limiting relief to

persons convicted of murder, but not attempted murder. ‘Preserving the government’s

financial integrity and resources is a legitimate state interest.’ ” (Munoz, supra, 39

Cal.App.5th at p. 765.)

Ultimately, we agree with the reasoning and holding of the court in Munoz that

Senate Bill No. 1437 does not apply to defendants convicted of attempted murder.3

3 We recognize that Senate Bill No. 775, signed by Governor Newsom on
October 5, 2021, and effective January 1, 2002, amends section 1170.95 to include
attempted murder and manslaughter within its provisions. Therefore, this opinion is
made without prejudice to defendant bringing a new petition under section 1170.95 after
the effective date of the amended statute.
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 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

RAMIREZ
P. J.

MENETREZ
J.

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