1 Filed 5/21/21 P. v. Stew art 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. THURSTON STEWART IV, Defendant and Appellant. E074763 (Super.Ct.No. RIF10003595)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed with directions. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant and appellant , Thurston Stewart IV , filed a petition for resentencing pursuant to Penal Code section 1170.95 , 1 which the court denied . Defendant contends

the court erred in denying his petition on the grounds that section 1170.95 does not apply to those convicted of attempted murder. We affirm.

I. PROCEDURAL BACKGROUND On July 13, 2011, the People charged defendant by amended felony complaint with murder (§ 187, subd. (a); count 1), two counts of robbery (§ 211 ; count s 2 & 3 ), voluntary manslaughter (§ 192, subd. (a) ; count 4 ) , and attempted murder (§§ 664 , 187, subd. (a); count 5) . The People additionally alleged that defendant had been engaged in the commission of an attempted robbery when he committed the count 1 offense

. (§ 190.2, subd. ( a )( 17 ) (A)

. ) On July 13, 2011, p ursuant to a negotiated agreement, defendant pled guilty to two counts of robbery (§ 211; counts 2 & 3), voluntar y manslaughter (§ 192, subd. (a) ;

count 4 ), and attempted murder (§§ 664 , 187, subd. (a) ; count 5 ) . Defendant also admitted a principal was armed with a firearm in the commission of the count 4 offense

. ( § 12022, subd. (a)(1)

. ) In return, the remaining count and allegation were dismissed

. O n June 11, 2012, t he court sentenced defendant to the agreed upon term of 1 6 years four

months of imprisonment.

On January 30, 2020, d efendant filed a petition for resentencing pursuant to section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss

1 All further statutory references are to the Penal Code.3

defendant’s petition because defendant had been convicted of attempted murder and voluntary manslaughter , not murde r. The court denied the petition. 2

II. DISCUSSION

Defendant contends the court erred in denying his petition on the grounds that section 1170.95 does not apply to those convicted of attempted murder. We disagree.

“Senate Bill 1437 [(2017

- 2018 Reg. Sess.)] narrowed the scope of liability for first and second degree murder by altering the doctrines that had allowed convictions for those offenses in the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that change by amending sections 188 and 189 to restrict the scope of first degree felony murder and to eliminate murder liability based on the natural and probable consequences doctrine.” ( People v. Sanchez (2020 ) 48 Cal.App.5th 914, 917 .) “The Legislature also added section 1170.95 to the Penal Code. That provision creates a procedure for offenders previously convicted of felony m urder or murder under a natural and probable consequences theory to obtain the benefits of these changes retrospectively. If the petitioner makes a prima facie showing of entitlement to relief

under section 1170.95, subdivision (a), the petitioner is enti tled to receive ‘a hearing to

determine whether to vacate the murder conviction and to recall the sentence and

2 The reporter’s transcript reflects that the trial court denied the petition. The minute order indicates the court dismissed the petition. We shall direct the court to correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. ( People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)4

resentence the petitioner on any remaining counts in the same manner as if the petitioner

had not been previously

. . . sentenced.’” ( People v. Sanchez , supra , 48 Cal.App.5th at

p. 917.) “By its plain language, section 1170.95

. . . makes resentencing relief available only to qualifying persons convicted of murder.” ( People v. Sanchez , supra , 48 Cal.App.5th at p. 918; accord People v. Larios (201 9) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S25 9983 [“ [T]he relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder.”]; accord People v. Lopez (2019) 38 Cal.App.5th 1087, 1105, review granted Nov

. 13, 2019, S258175 [“The plain language meaning of S enate

Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully supported by its legislative history.”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted Nov

. 26, 2019, S258234 [“Senate Bill 1437 does not apply to attempte d

murder convictions

. ”]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review granted Mar

. 11, 2020, S259948 [“[T]he relief provided in section 1170.95 is limited to

certain murder convictions and excludes all other convictions, including a convictio n for attempted murder.”]; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted July 29, 2020, S262184 [ “ Senate Bill 1437

. . . reaches the crime of murder but has no application to attempted murder.”]; accord People v. Love (2020) 55 Cal.App.5t h 273, 286, review granted Dec

. 16, 2020, S26 5445 [“In our view, Senate Bill 1437’s legislative history pretty clearly establishes that its amendments apply to the crime of murder and to that crime alone.”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 22 3 [“Senate Bill 14375

does not apply to attempted murder.”] ; accord People v. Harris (2021) 60 Cal.App.5th 557, 566 , review granted Apr. 21, 2021, S267529 [“[R]elief under section 1170.95 is not available to those convicted of attempted murder.”].) We agree with the previous panels

of this court in People v. Sanchez , supra , 48 Cal.App.5th 914 and People v. Harris that the plain language of section 1170.95 limits relief to those convicted of murder; no reference to attempted murder appears in section 1170.95. Thus, the court properly

denied defendant’s section 1170.95 petition because defendant had been convicted of attempted murder, not murder.

Three courts have held that Senate Bill No. 1437 does apply to those convicted of attempted murder but only on dire ct appeal from the judgment: “[W]e conclude Senate Bill 1437 precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a d efendant 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.” ( People v. Medrano , supra , 42 Cal.App.5th at p. 1013; accor d People v. Larios , supra , 42 Cal.App.5th at p. 968 [“Senate Bill 1437 ’ s abrogation of the natural and probable consequences doctrine as stated in section 188, subdivision (a)(3) necessarily applies to attempted murder.”];

accord People v. San chez (2020) 4 6 Cal.App.5th 637, 64 4 , review granted June 10, 2020, S261768 [“[W]e conclude S enate Bill No. 1 437 abrogates the natural and probable consequences doctrine in attempted murder prosecutions.”].) However, “the section 1170.95 petitioning procedure does not apply to defendants for their convictions of6

attempted murder . . . .” ( Medrano , at p. 10 0 8; accord Larios , at p. 961 [“[S]ection

1170.95 provides no relief for the crime of attempted murder.”]; accord People v.

San chez , supra , 46 Cal.App.5th at p. 64 4 [The conclusion that “S enate Bill No. 1437 abrogates the natural and probable consequences doctrine in attempted murder prosecutions

. . . applies retroactively on direct appeal.”]) Thus, even if we assumed that

Senate Bill No. 1437 applied to convictio ns for attempted murder, the petitioning and resentencing procedures of section 1170.95 do not. Therefore, because defendant’s appeal is from the denial of a section 1170.95 petition and not from the judgment, he is not entitled to any relief. The court properly denied his section 1170.95 petition.

III. DISPOSITION The judgment is affirmed. The trial court is directed to modify its February 14 , 2020 , minute order to reflect that it denied , rather than dismissed , defendant’s petition for resentencing.

NO T TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS J.

MENETREZ J.