Filed 6/28/21 P. v. Sanchez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G059825
v. (Super. Ct. No. 06CF0077)
LOUIS ARMANDO SANCHEZ, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Luis Armando Sanchez filed a notice of appeal, and appointed
counsel filed a brief summarizing the case with citations to the record, but counsel raised
no arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed
a separate handwritten brief on his own behalf.
Because this is not defendant’s first appeal as a matter of right, we are not
required to independently review the record, but we may conduct such a review in the
interests of justice. (People v. Flores (2020) 54 Cal.App.5th 266, 268.)
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In 2008, defendant was convicted of premeditated attempted murder. The
court sentenced him to an indeterminate life term for attempted murder, a consecutive life
term for the firearm enhancement and a two-year concurrent term for active participation
in a criminal street gang. On direct appeal, we affirmed the judgment. (Rodriguez,
supra, G041795.)
A full recitation of the facts can be found in Rodriguez, supra, G041795.
Suffice it to say that defendant was with fellow gang members who, wearing black
hooded sweatshirts, rode on bicycles into rival gang territory, and approached members
of the rival gang. Gunshots rang out upon the rival gang members and the victim was
shot, but not killed. Defendant was not the shooter, but he rode beside or just behind the
shooter, and stood by while the shooter fired. Defendant admitted to the investigating
officer he backed up his gang for nine months.
On March 29, 2019, defendant filed a petition for resentencing in the
superior court pursuant to Penal Code section 1170.95. (All further statutory references
are to the Penal Code.) The court appointed an attorney to represent defendant. The
court heard argument of counsel, and reviewed the information, jury instructions, jury’s
verdict and findings, the sentencing minute order, the abstract of judgments from April 8,
2009, and November 8, 2010, this court’s July 28, 2010, opinion and a minute order
1
Defendant was an additional defendant in People v. Rodriguez et al. (July 28, 2010,
G041795) [nonpub. opn.] (Rodriguez).
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based on the remittitur. Finding defendant does not qualify for relief under section
1170.95, the court denied his petition.
The Legislature adopted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437) “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.”
(Stats. 2018, ch. 1015, § 1, subd. (f), italics added; see § 189, subd. (e).) SB 1437
therefore amended sections 188 and 189 to limit the natural and probable causes doctrine
and the felony-murder rule. (See §§ 188, 189, subd. (e).)
Additionally, SB 1437 enacted section 1170.95. Under subdivision (a) of
section 1170.95, a person convicted of first or second degree murder may petition a trial
court for resentencing “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.”
There are two lines of authority on the issue of whether a conviction for
attempted murder, rather than murder, falls within the ambit of section 1170.95, and this
issue is under review by the California Supreme Court, which, of course, will have the
final say in this matter. In People v. Dennis (2020) 47 Cal.App.5th 838 (Dennis), review
granted July 29, 2020, S262184; People v. Alaybue (2020) 51 Cal.App.5th 207; People v.
Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, S258175; and
People v. Munoz (2019) 39 Cal.App.5th 738, review granted Nov. 26, 2019, S258234,
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districts have held that section 1170.95, does not apply to attempted murder, including
this one. A conflicting line of authority from the Fifth Appellate District has reached the
opposite conclusion. (See People v. Sanchez (2020) 46 Cal.App.5th 637, review granted
June 10, 2020, S261768; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008-1009,
review granted Mar. 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th 956,
review granted Feb. 26, 2020, S259983.)
As the court discussed in Lopez, supra, 38 Cal.App.5th at page 1104:
“[T]here is nothing ambiguous in the language of Senate Bill 1437, which, in addition to
the omission of any reference to attempted murder, expressly identifies its purpose as the
need ‘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.’
[Citation.] Had the Legislature meant to bar convictions for attempted murder under the
natural and probable consequences doctrine, it could easily have done so.”
“The Legislature’s obvious intent to exclude attempted murder from the
ambit of the Senate Bill 1437 reform is underscored by the language of new section
1170.95, the provision it added to the Penal Code to permit individuals convicted before
Senate Bill 1437’s effective date to seek the benefits of the new law from the sentencing
court. Section 1170.95, subdivision (a), authorizes only those individuals ‘convicted of
felony murder or murder under a natural and probable consequences theory’ to petition
for relief; and the petition must be directed to ‘the petitioner’s murder conviction.’
Similarly, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to
determine whether to vacate ‘the murder conviction.’” (Lopez, supra, 38 Cal.App.5th at
pp. 1104-1105.)
“The plain language meaning of Senate Bill 1437 as excluding any relief
for individuals convicted of attempted murder is fully supported by its legislative history.
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[Citations.] When describing the proposed petition process, the Legislature consistently
referred to relief being available to individuals charged in a complaint, information or
indictment ‘that allowed the prosecution to proceed under a theory of first degree felony
murder, second degree felony murder, or murder under the natural and probable
consequences doctrine’ and who were ‘sentenced to first degree or second degree
murder.’ [Citation.] In addition, when discussing the fiscal impact and assessing the
likely number of inmates who may petition for relief, the Senate Committee on
Appropriations considered the prison population serving a sentence for first and second
degree murder and calculated costs based on that number. [Citation.] The analysis of
potential costs did not include inmates convicted of attempted murder.” (Lopez, supra,
38 Cal.App.5th at p. 1105.)
We adopted this reasoning in Dennis, supra, 47 Cal.App.5th at pages 845-
846. We further rejected the reasoning of People v. Medrano, supra, 42 Cal.App.5th
1001, and the cases following it as flawed. (Dennis, at p. 846.)
We have not been persuaded to change our view, and continue to join the
majority of courts in concluding that attempted murder is not within the ambit of section
1170.95. The statute is clear on its face, and we cannot add language the Legislature
itself chose not to include. We further concur with Lopez, supra, 38 Cal.App.5th at pages
1107-1112, that the Legislature’s choice not to include attempted murder within the
ambit of section 1170.95 does not violate equal protection principles. “The remedy for
any potentially inequitable operation of section 1170.95 lies with the Legislature. If the
Legislature concludes it is unwise or inequitable to exclude attempted murderers from
Senate Bill 1437’s reach, it has only to amend the law.” (People v. Munoz, supra, 39
Cal.App.5th at pp. 759-760.)
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We have conducted an independent review of the record and found no
arguable issues that require briefing or argument. Accordingly, the trial court’s order
denying the section 1170.95 petition is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
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