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Filed 5/21/21 P. v. Stewart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.
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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; counts 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, pursuant to a negotiated agreement, defendant pled guilty to two 

counts of robbery (§ 211; counts 2 & 3), voluntary 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. 

On June 11, 2012, the court sentenced defendant to the agreed upon term of 16 years four 

months of imprisonment.

On January 30, 2020, defendant filed a petition for resentencing pursuant to 

section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss 

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 All further statutory references are to the Penal Code.
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defendant’s petition because defendant had been convicted of attempted murder and 

voluntary manslaughter, not murder. 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 murder 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 entitled 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.)
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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 (2019) 42 Cal.App.5th 956, 970, 

review granted Feb. 26, 2020, S259983 [“[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 Senate 

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 attempted 

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 conviction 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.5th 273, 

286, review granted Dec. 16, 2020, S265445 [“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, 223 [“Senate Bill 1437 
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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 direct 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 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.” (People v. Medrano, supra, 

42 Cal.App.5th at p. 1013; accord 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. Sanchez (2020) 46 Cal.App.5th 637, 644, review granted June 10, 2020, 

S261768 [“[W]e conclude Senate Bill No. 1437 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 of 
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attempted murder . . . .” (Medrano, at p. 1008; accord Larios, at p. 961 [“[S]ection 

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

Sanchez, supra, 46 Cal.App.5th at p. 644 [The conclusion that “Senate 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 convictions 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.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.