Filed 6/21/21 P. v. Taituave CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305271
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA081157)
v.
MIKE TAITUAVE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Judith L. Meyer, Judge. Affirmed.
Thomas Owen, 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, Idan Ivri and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Mike Taituave was convicted by a jury of
conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)),1
five counts of attempted murder (§§ 664, 187, subd. (a)), and five
counts of assault with a firearm (§ 245, subd. (a)(2)). The jury
found true gang allegations on all counts (§ 186.22, subd.
(b)(1)(C)). The jury found all five attempted murders to be
willful, deliberate, and premeditated. However, the jury did not
find to be true the firearm (§ 12022.53, subds.(b), (c) & (d)) and
great bodily injury (§ 12022.7, subd. (a)) enhancements.
Appellant was sentenced to a term of 90 years to life in
state prison. The sentence was composed of six consecutive 15-
years-to-life terms on the conspiracy and the five attempted
murder counts. The sentences on the assault counts were stayed
pursuant to section 654. (People v. Taituave et al. (May 15, 2012,
B225435) [nonpub. opn.] (Taituave).
Taituave appealed. The judgment was affirmed in
Taituave, supra, B225435, with the exception that the sentence
on the conspiracy to commit murder count was stayed under
section 654, reducing his sentence to 75-years-to-life
imprisonment. Appellant also received an additional 71 days of
custody credit. (Taituave, supra, B225435.) The court corrected
1 The actual verdict form for this count is missing from the
clerk’s transcript but the form for the enhancements for this
count is at page 24. There is no dispute about the conviction for
this count.
Statutory references are to the Penal Code.
2
the stayed sentence on the murder conspiracy count to a term of
25 years to life. (Ibid.)2
Appellant filed a petition for resentencing under section
1170.95 on January 29, 2020. The superior court denied the
petition summarily on February 5, 2020, without appointing
counsel. The court gave as the reason for its denial that the
“petitioner was NOT convicted of murder. This defendant was
the shooter and was convicted of attempted murder.” Appellant
filed a timely notice of appeal. We deem this appeal to be from an
order after judgment affecting substantial rights. (§ 1237, subd.
(b).)
We conclude that appellant was not eligible for
resentencing because he was not convicted of murder but only of
attempted murder. Our conclusion is based on the plain text of
subdivision (a)(2) and (3) of section 1170.95, which requires the
applicant for resentencing to have been convicted of first or
second degree murder. Because the fact of appellant’s conviction
for attempted murder disqualifies him for relief as a matter of
law, the superior court was empowered to conclude that appellant
had not made a prima facie showing that he fell within the
provisions of section 1170.95.3 Accordingly, we affirm the order
denying appellant relief under section 1170.95.
Appellant also contends that his conviction for attempted
murder must be reversed because under Senate Bill No. 1437
2The trial court had erred as a matter of law in imposing a
15-years-to-life term.
3 “The 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.” (§ 1170.95, subd. (c).)
3
(2017-2018 Reg. Sess.) (SB 1437) a conviction for attempted
murder cannot be based on a natural and probable consequences
theory. In addition, he contends that because he could have been
convicted on a natural and probable consequences theory, he was
entitled to a full hearing on his section 1170.95 petition. We
explain below why we decline to address these two contentions.
FACTS
Appellant and respondent both rely on the summary of the
facts set forth in Taituave, supra, B225435. Since the facts
showing the commission of the multiple felonies are not material
for the purposes of our decision, save to confirm that appellant
was convicted of five attempted murders, we confine ourselves to
an abbreviated statement of the operative facts.
The crimes at bar were the result of yet another conflict
between two criminal street gangs. Appellant and two
confederates were members of the Sons of Samoa (SOS) and the
victims were affiliated in one way or another with the West Side
Piru gang. The victims were four members of the Ho-Ching
family, father Hoching (Joe), mother Maria, daughter Sheila, son
Daniel, and Sheila’s cousin Faasooso Tautolo. (Taituave, supra,
B225435.) The shootings, which were foreshadowed by SOS’s
violent aggressions against the Ho-Ching family residence,
occurred when Joe,4 accompanied by his wife, daughter, and
Tautolo, went driving, looking worriedly for Daniel who himself
was driving a car in the vicinity of the Ho-Ching residence.
Appellant waylaid the car driven by Joe from between two parked
cars, firing into the vehicle and hitting Joe and his wife multiple
4We use first names for clarity’s sake and not out of
disrespect.
4
times; both required surgery and hospitalization. (Ibid.) Sheila
and Tautolo were in the backseat, got down on the floor, and were
not hit. Daniel, who happened to be following Joe at this point,
was the target of three or four shots fired by appellant, with the
shots hitting the car but not Daniel. (Ibid.)
In rejecting the claim that the evidence was insufficient to
show that appellant was the shooter, the court in Taituave,
supra, B225435, found that, in one way or another, Joe, Maria
Sheila, and Daniel all identified appellant as the shooter. (Ibid.)
Ample physical evidence (guns, ammunition, cell phone usage)
corroborated the eyewitness identification of appellant. (Ibid.)
DISCUSSION
I. THE PLAIN MEANING OF SECTION 1170.95
EXCLUDES ATTEMPTED MURDER FROM ITS
COVERAGE
Section 1170.95 provides in relevant part: “(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
5
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1), (2) & (3).)
Two out of the three conditions for resentencing under
section 1170.95 state explicitly that the petitioner must have
been convicted of first or second degree murder. (§ 1170.95, subd.
(a)(2) & (3).)
“Words used in a statute or constitutional provision should
be given the meaning they bear in ordinary use. [Citations.] If
the language is clear and unambiguous there is no need for
construction, nor is it necessary to resort to indicia of the intent
of the Legislature (in the case of a statute) or of the voters (in the
case of a provision adopted by the voters).” (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735.)
Given that the Legislature knows that there is such a crime
as attempted murder, the plain meaning of subdivision (a)(2) and
(3) of section 1170.95 is that these provisions are limited to first
and second degree murder and do not include attempted murder.
It is manifest that if the Legislature had intended to include
attempted murder in subdivision (a)(2) and (3) of section 1170.95,
it certainly would have done so simply by listing it in addition to
first and second degree murder.
The plain meaning of these provisions is buttressed by the
fact that subdivision (a)(2) and (3) do not simply refer to “murder”
but to first and second degree murder. If the reference would be
only to “murder,” the argument could be made that all forms of
murder were intended to be included. But that is not what the
Legislature did. Under the principle expressio unius est exclusio
6
alterius, the expression of one thing is the exclusion of another.5
First and second degree murder are specifically listed, which
means that other forms of homicide are excluded. This comports
with the plain meaning of the statute.
The court in People v. Flores (2020) 44 Cal.App.5th 985
reached the same conclusion when it came to a conviction for
manslaughter. The applicant had been convicted of
manslaughter pursuant to a plea agreement. (Id. at p. 990.)
Citing subdivision (a)(2) of section 1170.95, the applicant
contended that she had accepted a plea offer in lieu of a trial at
which she could have been convicted for first or second degree
murder. (Flores, supra, at p. 994.) The court rejected her
argument, holding that “[h]ad the Legislature intended to make
section 1170.95 available to defendants convicted of
manslaughter, it easily could have done so” and that the “absence
of any reference to manslaughter implies the omission was
intentional.” (Flores, supra, at p. 993.) The applicant was found
to be statutorily ineligible because manslaughter is not listed in
section 1170.95, subd. (a). (Flores, supra, at pp. 990, 993, 997.)
People v. Cervantes (2020) 44 Cal.App.5th 8846 also
concluded that a manslaughter conviction did not qualify the
applicant for resentencing under section 1170.95, holding that
the “decision not to include manslaughter in section 1170.95 falls
within the Legislature’s ‘line-drawing’ authority as a rational
5 Foran application of this interpretative canon, see United
Farm Workers of America v. Agricultural Labor Relations Bd.
(1995) 41 Cal.App.4th 303, 316.
6 Requests for depublication were denied in both People v.
Flores, supra, 44 Cal.App.5th 985, and People v. Cervantes, supra,
44 Cal.App.5th 884.
7
choice that is not constitutionally prohibited” (Cervantes, supra,
at p. 888), rejecting, as we do below, an equal protection
challenge to section 1170.95.
We do not stop with the plain meaning of subdivision (a)(2)
and (3) of section 1170.95. We go on to inquire whether these
provisions are in conflict with companion legislation which were
amendments to sections 188 and 189. As we discuss below, SB
1437 enacted sections 188 and 189. “But the ‘plain meaning’ rule
does not prohibit a court from determining whether the literal
meaning of a statute comports with its purpose or whether such a
construction of one provision is consistent with other provisions
of the statute. The meaning of a statute may not be determined
from a single word or sentence; the words must be construed in
context, and provisions relating to the same subject matter must
be harmonized to the extent possible.” (Lungren v. Deukmejian,
supra, 45 Cal.3d at p. 735.)
The question therefore is whether the plain meaning of
section 1170.95, in requiring the petitioner to have been
convicted of first or second degree murder, is consistent with
recent amendments to sections 188 (“Malice, express malice, and
implied malice defined”) and 189 (“Murder; degrees”). We turn to
this next.
II. THE PLAIN TEXT OF SECTION 1170.95
IS NOT IN CONFLICT WITH THE AMENDMENTS
TO SECTIONS 188 AND 189
In 2018, SB 1437 added subdivision (a)(3) to section 188,
which states: “Except as stated in subdivision (e) of Section 189,
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
8
SB 1437 also added subdivisions (e) and (f) to section 189.
Subdivision (e) creates three exceptions to the rule against the
imputation of malice. They are if the defendant is the actual
killer, when the defendant, with the intent to kill, aided in the
commission of murder in the first degree, and when the
defendant is a major participant in the underlying felony and
acted with reckless indifference to human life. Subdivision (f)
provides that imputation of malice is permissible if the victim is a
peace officer.
As we have had the occasion to recently observe in People v.
Love (2020) 55 Cal.App.5th 273, 283–284, review granted
December 16, 2020, S265445, the amendments to section 188 and
189 have had the effect of abrogating vicarious liability in the
form of the natural and probable consequences theory in cases of
murder. We will from time to time refer to this as the “no
imputation of malice” rule. The question is whether vicarious
liability has been abrogated for attempted murder as well.
The reviewing courts are of differing views on this subject,
although the majority view appears to be that the abrogation of
vicarious liability by SB 1437 does not apply to attempted
murder. (People v. Munoz (2019) 39 Cal.App.5th 738, 753, review
granted Nov. 26, 2019, S258234 [SB 1437 does not apply to
attempted murder]; People v. Lopez (2019) 38 Cal.App.5th 1087,
1103, review granted Nov. 13, 2019, S258175 [does not apply];
People v. Dennis (2020) 47 Cal.App.5th 838, 844–847, review
granted July 29, 2020, S262184 [does not apply]; People v. Larios
(2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020,
S259983 [does not apply]; People v. Alaybue (2020) 51
Cal.App.5th 207, 222–225 [does not apply]; People v. Love, supra,
55 Cal.App.5th at p. 291, rev.gr. [does not apply]; People v.
9
Medrano (2019) 42 Cal.App.5th 1001, 1015–1016, review granted
Mar. 11, 2020, S259948 [does apply]; People v. Sanchez (2020) 46
Cal.App.5th 637, 642–644, review granted June10, 2020, S261768
[does apply].)
Even though the reviewing courts are currently divided on
whether the “no imputation of malice” rule applies to attempted
murder, this controversy should have no impact on whether
resentencing is limited to first and second degree murder. This is
so because the concept of vicarious liability in attempted murder
is a question independent of the plain meaning of subdivision
(a)(2) and (3) of section 1170.95. There is no symbiotic, reciprocal
relationship between vicarious liability in attempted murder, on
the one hand, and the limitation of resentencing to first and
second degree murder by section 1170.95, on the other. These
concepts operate independently of each other. That is, whether
attempted murder should or should not be divested of vicarious
liability has no impact on what the plain language of section
1170.95 currently provides.
Even if we assume for the purposes of discussion that the
“no imputation of malice” rule is applied to attempted murder, we
see no inconsistency in limiting resentencing to first and second
degree murder. It is perfectly conceivable that attempted murder
is divested of vicarious liability and resentencing is limited to first
and second degree murder. We discuss this is as a rational
legislative choice in the next section where we reject the claim
that failure to include attempted murder in section 1170.95 is a
violation of equal protection.
10
Section 1170.95 is very much a part of the changes wrought
by SB 1437.7 Yet section 1170.95 limits resentencing to persons
convicted of first and second degree murder. It is hard to escape
the conclusion that the decision to limit resentencing to first and
second degree murder was deliberate and made with full
knowledge of the circumstance that malice can be a factor in
other contexts as well, such as in attempted murder and
voluntary manslaughter.
III. RESTRICTING RESENTENCING TO PERSONS
CONVICTED OF FIRST AND SECOND DEGREE
MURDER DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE
Appellant contends that applying SB 1437 to first and
second degree murder but not to attempted murder violates the
equal protection clause. We conclude to the contrary.
The federal and California Constitutions guarantee that no
person shall be denied the equal protection of the laws. (U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7.) Equal protection of
the laws means that similarly situated persons shall be treated in
like manner unless there is a sufficiently good reason to treat
them differently. (People v. Morales (2016) 63 Cal.4th 399, 408;
Engquist v. Oregon Dept. of Agriculture et al. (2008) 553 U.S. 591,
602; see People v. Chatman (2018) 4 Cal.5th 277, 287 [“our
precedent has not distinguished the state and federal guarantees
of equal protection for claims arising from allegedly unequal
consequences associated with different types of criminal
offenses”]; Johnson v. Department of Justice (2015) 60 Cal.4th
7 SB 1437 also added section 1170.95. (People v. Alaybue,
supra, 51 Cal.App.5th at p. 213.)
11
871, 881 [federal and state equal protection guarantees have
similar interpretation].)
The first step in addressing an equal protection claim is to
determine whether there are two groups of persons who are
similarly situated for the purposes of the law being challenged
but who are being treated differently. (Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.)
The question is whether persons convicted of attempted
murder are similarly situated to persons convicted of murder.
The answer is no. Murder and attempted murder are separate,
distinct crimes. An attempt is an offense separate and distinct
from the completed crime. (People v. Marinelli (2014) 225
Cal.App.4th 1, 5.) It is also true that murder is punished more
severely than attempted murder. (§ 190, subd. (a) [murder];
§ 664, subd. (a) [attempted murder].) The difference in penal
consequences means that persons convicted of murder under the
natural and probable consequences doctrine are not similarly
situated to persons convicted of attempted murder. Since these
two groups are not similarly situated, they may be treated
differently by the Legislature.
This could end our analysis. However, it is possible to
contend that the classification is not between persons convicted of
attempted murder, on the one hand, and murder, on the other,
but that the classification is of persons convicted of willful,
deliberate, and premeditated attempted murder, on the one hand,
and second degree murder, on the other. In this case, there is no
disparity in penal consequences. Second degree murder is
punishable by 15 years to life (§ 190, subd. (a)), which was the
punishment imposed in this case for willful, deliberate, and
premeditated attempted murder.
12
Assuming that there are two groups of similarly situated
persons, we must take the second step in the equal protection
analysis and ascertain whether the Legislature has a
constitutionally sufficient reason to treat the two groups
differently (People v. Chatman, supra, 4 Cal.5th at p. 288), i.e.,
accord resentencing to one group and not to the other.
“The extent of justification required to survive equal
protection scrutiny in a specific context depends on the nature or
effect of the classification at issue. Unequal treatment based on a
suspect classification such as race is subject to ‘ “the most
exacting scrutiny.” ’ (People v. Wilkinson (2004) 33 Cal.4th 821,
836.) So is treatment affecting a fundamental right.” (People v.
Chatman, supra, 4 Cal.5th at p. 288.) In cases involving suspect
classifications or fundamental rights, courts subject the
classifications to strict scrutiny. Under the strict scrutiny
standard, the state bears the burden of establishing not only that
it has a compelling interest which justifies the law but that the
distinctions drawn by the law are necessary to further its
purpose. (Ibid.) Where the law challenged neither draws a
suspect classification nor burdens fundamental rights, there is “a
denial of equal protection only if there is no rational relationship
between a disparity in treatment and some legitimate
government purpose.” (Id. at pp. 288–289.)
The classification of persons based on their crimes of
conviction is not a suspect classification. (Cf. People v. Wilkinson,
supra, 33 Cal.4th at p. 838.)
While personal liberty is a fundamental right for purposes
of equal protection (People v. Olivas (1976) 17 Cal.3d 236, 251), as
we have had the occasion to observe in People v. Love, supra, 55
Cal.App.5th at page 288, rev.gr., People v. Wilkinson, supra, 33
13
Cal.4th 821 “clipped Olivas’s wings.” Specifically, in applying the
rational basis standard to the difference between the crimes of
battery on a custodial officer in the performance of his or her
duties and battery on a custodial officer causing injury,8
Wilkinson held that Olivas does not require the courts to subject
all criminal classifications to strict scrutiny. (Wilkinson, supra,
at p. 838.) Wilkinson went on to hold that a defendant does not
have a fundamental interest in a specific term of imprisonment
or in the designation a particular crime receives. (Ibid.) The
Courts of Appeal anticipated Wilkinson on the inapplicability of
the strict scrutiny standard of review. (People v. Bell (1996) 45
Cal.App.4th 1030, 1049 [a broad reading of Olivas would
“intrude[ ] too heavily on the police power and the Legislature’s
prerogative to set criminal justice policy”]; People v. Mitchell
(1994) 30 Cal.App.4th 783, 796 [“[d]etermining gradations of
culpability . . . does not implicate the strict scrutiny test for
equal protection purposes”]; People v. Silva (1994) 27 Cal.App.4th
1160, 1167 [all criminal laws are not subject to strict scrutiny].)
Assuming, but only for the purposes of our discussion, that
the “no imputation of malice” rule is extended to attempted
murder, the issue is whether limiting resentencing to first and
second degree murder, and excluding attempted murder
convictions from this benefit, has a rational relationship to a
legitimate governmental purpose.
The preservation of the government’s financial resources is
a legitimate state interest. (People v. Chatman, supra, 4 Cal.5th
at p. 290.) It has been estimated that the cost of SB 1437 in its
8 The latter battery is punishable as either a misdemeanor
or a felony, while the former is a felony.
14
current configuration is approximately $7.6 million. (People v.
Lopez, supra, 38 Cal.App.5th at p. 1112, rev.gr.) It is also true
that resentencing is an extraordinary step in the criminal process
and not one that is frequently taken. Extending resentencing
beyond first and second degree murder would entail additional
expense and a greater burden on judicial resources. It is a
rational decision to curtail resentencing as an extraordinary
remedy for the very serious crime of murder in order to lessen the
financial and administrative burden imposed by this reform.
In addition, there is no doubt that, on the whole, attempted
murder entails lesser culpability than either first or second
degree murder. It is a rational decision to reserve resentencing
for convictions that are as burdensome as those for murder,
especially when they are compared to convictions of attempted
murder that can result in much lesser terms of five, seven, or
nine years.
There is a rational relationship between the disparity in
treatment and there are legitimate governmental purposes in the
limitation of resentencing to first and second degree murder.
There is therefore no violation of the equal protection clauses of
the federal and California Constitutions.
It follows that even if the “no imputation of malice” rule is
extended to attempted murder, the limitation of resentencing to
first and second degree murder is a valid exercise of the state’s
legislative power.
IV. APPELLANT DID NOT PRESENT
A PRIMA FACIE CASE FOR RESENTENCING
UNDER SECTION 1170.95
Appellant contends that he presented a prima facie case
that he was eligible for resentencing and that, for this reason, the
15
trial court erred in summarily denying his petition and in failing
to appoint counsel. We disagree with all of these propositions.
One decision that has survived our Supreme Court’s grants
of review that speaks to the issue of a prima facie case for
resentencing under section 1170.95 is People v. Taylor (2019) 34
Cal.App.5th 543.9 Taylor provides a working definition of what a
prima facie case is for the purposes of section 1170.95: “Upon
receiving a petition that is supported by the petitioner’s
declaration that all three conditions are met and that makes a
‘prima facie showing that the petitioner falls within the
provisions of [section 1170.95],’ the sentencing court must issue
an order to show cause. (§ 1170.95, subd. (c).)” (Taylor, supra, at
p. 562.) (For the full text of subdivision (c) of section 1170.95, see
footnote 10, post.)
The sensible rule that emerges from this, and the text of
subdivision (c) of section 1170.95, is that if the applicant’s
declaration shows that all three conditions of subdivision (a) of
section 1170.95 have been met, the applicant has made a prima
facie case that he or she is eligible for resentencing. By the same
token, if the applicant fails to show that one or more of these
conditions has been met, the applicant has not made a prima
facie case.
In this case, appellant “checked the box” on the application
form that states that he was convicted of first or second degree
murder. However, that is simply not true.
9 Respondent lists six cases on this issue, all of which have
been granted review.
16
Subdivision (c) of section 1170.95 makes two references to a
“prima facie case.”10 The first reference focuses on “eligibility”
for relief, while the second addresses “entitlement” to relief.
(People v. Drayton (2020) 47 Cal.App.5th 965, 975.)
As far as making a prima facie case on the issue of
entitlement to relief, it has been held that the trial court should
assume the facts stated in the 1170.95 petition to be true but the
court “need not credit factual assertions that are untrue as a
matter of law—for example, a petitioner’s assertion that a
particular conviction is eligible for relief where the crime is not
listed in subdivision (a) of section 1170.95 as eligible for
resentencing.” (People v. Drayton, supra, 47 Cal.App.5th at
p. 980.) The court went on to hold that the authority to make
factual determinations “without conducting an evidentiary
hearing pursuant to section 1170.95, subd. (d)[11] is limited to
10 “The 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. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor
response is served. These deadlines shall be extended for good
cause. 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.” (§ 1170.95, subd. (c).)
11 “Within 60 days after the order to show cause has issued,
the court shall 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
17
readily ascertainable facts from the record (such as the crime of
conviction), rather than fact finding involving the weighing of
evidence or the exercise of discretion.” (Drayton, supra, at
p. 980.) As far as a prima facie case for eligibility is concerned,
the court in People v. Drayton noted with approval the summary
denial of the section 1170.95 application by People v. Flores,
supra, 44 Cal.App.5th 985, on the ground that the applicant in
that case was convicted of a crime not listed in section 1170.95,
subdivision (a). (People v. Drayton, supra, 47 Cal.App.5th at p.
976.)
We conclude that when, as here, the applicant cannot show
that he or she was convicted of the crimes listed in section
1170.95, subdivision (a), the applicant has not made a prima facie
case for eligibility for relief.
People v. Verdugo (2020) 44 Cal.App.5th 320, 332–333,
review granted March 18, 2020, S260493, held that counsel need
not be appointed at the initial stage when the court determines
whether the applicant is eligible for resentencing. We cite this
holding for its persuasive value only. (Cal. Rules of Court, rule
8.1115(e)(1).) We think it is persuasive in that there is no point
in appointing counsel when review is limited to readily
ascertainable facts from the record such as the crime of
conviction. It is also true that the making of a prima facie case
for eligibility is very simple, as long as the applicant has been
convicted of first or second degree murder.
By way of analogies, the appointment of counsel in
Proposition 47 cases appears to be limited to the resentencing
stage and is not extended to the eligibility determination.
petitioner had not been previously been sentenced.” (§ 1170.95,
subd. (d)(1).)
18
(Cf. People v. Rouse (2016) 245 Cal.App.4th 292, 301.) Counsel in
habeas corpus proceedings is appointed only upon the issuance of
an order to show cause (Cal. Rules of Court, rule 4.551(c)(2)),
which means that there is no counsel for the initial stages in the
evaluation of a petition for a writ of habeas corpus.
We conclude that counsel need not have been appointed
before the court denied the application on the ground that
appellant was not convicted of first or second degree murder and
was therefore not eligible for resentencing.
Finally, the trial court’s statement that appellant was the
shooter was not necessary for the court’s order denying the
application. That order was based on the fact that appellant was
not eligible for resentencing because he had not been convicted of
first or second degree murder. We will disregard the reference to
appellant as the shooter because it was surplusage and
unnecessary for the trial court’s decision. Moreover, we review
the court’s ruling and not the reason for the ruling and will
affirm if the ruling is correct, even if the trial court’s reason for
the ruling is wrong. (D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 19.)
V. WE DECLINE TO ADDRESS
APPELLANT’S REMAINING CONTENTIONS
The issue before us is a narrow one. It is whether
appellant is eligible for resentencing even though he has not been
convicted of first or second degree murder. Since the answer to
this is in the negative, it is not necessary to proceed any further.
This is not a case where the issue of vicarious liability for
attempted murder is raised in the direct appeal from the
judgment, as it was in People v. Medrano, supra, 42 Cal.App.5th
19
at p. 1007, rev.gr.12 Unlike Medrano, the judgment in this case
was final when the changes enacted by SB 1437 became effective.
Appellant’s contention that his conviction for attempted
murder must be set aside because the conviction cannot be based
on the natural and probable consequences theory is based on a
misunderstanding of the procedural posture of this case. The
issue before us is whether appellant is eligible for resentencing
under section 1170.95. The issue is not whether appellant’s final
conviction for attempted murder should be set aside in a
collateral attack on the judgment based on the “no imputation of
malice” rule of SB 1437. This appeal is not the forum for such a
collateral attack. For the same reason, appellant’s contention
that he was entitled to a hearing under section 1170.95 because
he could have been convicted under the natural and probable
consequences theory also ignores that the issue is whether he is
eligible for resentencing under section 1170.95, not whether his
conviction should be set aside because of the demise of the
natural and probable consequences theory of liability. Appellant
may have the makings of a collateral attack on his final
judgment, but this appeal is not the vehicle for such an attack.
12 The Medrano court concluded that SB 1437 eliminated
the natural and probable consequences theory for attempted
murder prospectively and retroactively as to nonfinal convictions.
(People v. Medrano, supra, 42 Cal.App.4th at pp. 1008, 1017–
1019, rev.gr.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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