Filed 9/14/21 P. v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY LOPEZ,

Defendant and Appellant.

 B307654

 (Los Angeles County

 Super. Ct. No.TA145893)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael Shultz, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan, Assistant Attorney 

General, Amanda Lopez and Stacy S. Schwartz, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

On May 23, 2018, the People filed an information charging 

appellant Jimmy Lopez and two codefendants with murder. 

(Pen. Code, § 187, subd. (a).1) The information further alleged 

that the crime was committed for the benefit of a criminal street 

gang (§ 186.22, subd. (b)(1)(C)), and that a principal used a 

firearm in the commission of the offense (§§ 12022, subd. (a)(1), 

12022.53, subds. (b), (c), (d), (e)(1).) Pursuant to a plea offer, in 

July 2018 appellant pled no contest to voluntary manslaughter 

(§ 192, subd. (a)) and admitted the firearm allegation under 

section 12022, subdivision (a)(1). He was sentenced to 12 years 

in prison. 

In April 2020, appellant filed a petition for resentencing 

under section 1170.95. On the form petition, he checked the box 

stating, “I pled guilty or no contest to 1st or 2nd degree murder in 

lieu of going to trial because I believed I could have been 

convicted of 1st or 2nd degree murder at trial pursuant to the 

felony murder rule or the natural and probable consequences 

doctrine.” The trial court summarily denied the petition, stating 

that appellant was not entitled to relief as a matter of law 

because he had been convicted of voluntary manslaughter, not 

murder. 

Appellant timely appealed. 

DISCUSSION

Under section 1170.95, subdivision (a), “A person convicted 

of felony murder or murder under a natural and probable 

consequences theory may file a petition . . . to have the 

petitioner’s murder conviction vacated and to be resentenced on 

any remaining counts when all of the following conditions apply: 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

(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.” 

Appellant asserts that he is entitled to resentencing under 

section 1170.95 because he accepted a plea offer in lieu of a trial 

at which he could have been convicted of first degree or second 

degree murder. He contends the trial court’s order denying his 

petition was erroneous and violated his constitutional rights to 

equal protection and due process. The People contend the 

petition was properly denied. 

The proper interpretation of a statute is a question of law 

we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.) 

To interpret a statute, “[w]e begin by examining the words of the 

statute, affording them ‘their ordinary and usual meaning and 

viewing them in their statutory context.’” (People v. Colbert

(2019) 6 Cal.5th 596, 603.) If the statutory language is not 

ambiguous, the plain meaning governs. (Ibid.)

Section 1170.95 explicitly states that it applies to “[a] 

person convicted of felony murder or murder under a natural and 

probable consequences theory,” and it allows “the petitioner’s 

murder conviction” to be vacated. (§ 1170.95, subd. (a).) The 

People assert that the provision’s references to murder exclude 

persons convicted of voluntary manslaughter, and therefore 

appellant was not entitled to relief. Appellant contends that such

a “narrow interpretation” of section 1170.95 would render 

subdivision (a)(2)’s reference to a plea offers superfluous. 
4

We agree with the many cases holding that the plain 

language of section 1170.95 bars relief for defendants convicted of 

voluntary manslaughter. (See, e.g., People v. Paige (2020) 51 

Cal.App.5th 194, 204 (Paige) [“defendants charged with felony 

murder but convicted of voluntary manslaughter pursuant to a 

plea agreement are not eligible for relief under section 1170.95”]; 

People v. Turner (2020) 45 Cal.App.5th 428, 438 (Turner) [“a 

defendant who faces murder liability under the natural and 

probable consequences doctrine, but pleads guilty to 

manslaughter in lieu of trial, is not eligible for resentencing 

under section 1170.95”]; People v. Flores (2020) 44 Cal.App.5th 

985, 993 [“the plain language of section 1170.95 limits relief only 

to qualifying persons who were convicted of murder”]; People v. 

Sanchez (2020) 48 Cal.App.5th 914, 920 (Sanchez) [“section 

1170.95 relief is not available to those offenders who pled guilty 

to voluntary manslaughter”]; People v. Cervantes (2020) 44 

Cal.App.5th 884, 887 (Cervantes) [“The plain language of the 

statute is explicit; its scope is limited to murder convictions.”].)

Appellant acknowledges this case law, but asserts that 

these cases were wrongly decided and should not be followed. He 

asserts that if the Legislature “intended to limit eligibility for 

relief under section 1170.95 to defendants convicted of first or 

second degree murder,” subdivision (a)(2) would say so explicitly. 

He argues that the “more specific provision” of subdivision (a)(2) 

controls over the more general language in the “introductory 

provision” of the statute. 

We do not agree with this interpretation of the statute. As 

the court stated in Paige, supra, section 1170.95, subdivision 

(a)(2) sets out only “one of three conditions—all of which must 

also apply before the person convicted of felony murder or natural 
5

and probable consequences murder may seek relief under section 

1170.95. Given the structure of the statute and the language in 

the first paragraph of section 1170.95, subdivision (a), the 

reference to a person who ‘accepted a plea offer’ in subdivision 

(a)(2) must necessarily mean a person who accepted a plea to, 

and was convicted of, first or second degree murder in lieu of a 

trial at which he could have been convicted of either of those 

charges.” (Paige, supra, 51 Cal.App.5th at p. 202; see also 

Turner, supra, 45 Cal.App.5th at p. 436 [focus on subdivision 

(a)(2) “ignores the introductory language in section 1170.95, 

subdivision (a) that limits petitions to persons ‘convicted of . . . 

murder.’”]; Sanchez, supra, 48 Cal.App.5th at p. 919 [same].)

Appellant argues that such a reading of the statute is 

inconsistent with the “purposes” of the statute and the intent of 

the Legislature. However, “[i]f the plain language of the statute 

is clear and unambiguous, our inquiry ends, and we need not 

embark on judicial construction. [Citation.] If the statutory 

language contains no ambiguity, the Legislature is presumed to 

have meant what it said, and the plain meaning of the statute 

governs.” (People v. Johnson (2002) 28 Cal.4th 240, 244.) The 

plain language of section 1170.95 states that it applies to persons 

convicted of murder, and it allows “the petitioner’s murder 

conviction” to be vacated. (§ 1170.95, subd. (a).) We therefore 

need not engage in further judicial construction.

Appellant also contends that section 1170.95 violates his 

right to equal protection under the United States and California 

constitutions. Again, we agree with the cases that have rejected 

similar challenges. “The first step in an equal protection analysis 

is to determine whether the defendant is similarly situated with 

those who are entitled to the statutory benefit.” (Cervantes, 
6

supra, 44 Cal.App.5th at p. 888.) As in Cervantes, appellant here 

“was convicted of voluntary manslaughter, a different crime from 

murder, which carries a different punishment. Normally 

‘offenders who commit different crimes are not similarly situated’

for equal protection purposes.” (Ibid.; see also Paige, supra, 51 

Cal.App.5th at pp. 205-206; Sanchez, supra, 48 Cal.App.5th at 

pp. 920-921.)

Appellant further asserts that the superior court’s ruling 

violated “guarantees of substantive due process.” We disagree.

“‘[S]ubstantive due process requires a rational relationship 

between the objectives of a legislative enactment and the 

methods chosen to achieve those objectives.’” (Cervantes, supra, 

44 Cal.App.5th at p. 889.) In section 1170.95, “there was such a 

relationship. The legislative goal was to eliminate the sentencing 

disparity caused by the felony murder rule.” (Ibid.) Thus, 

appellant’s substantive due process rights were not violated.

Finally, appellant asserts that the superior court erred in 

summarily denying his petition without appointing counsel or 

allowing briefing on the issues. He asserts this was structural 

error requiring automatic reversal, or in the alternative, that the 

error was prejudicial under any standard. The People assert that 

appellant was not entitled to counsel, and even if he was, any 

error was harmless. 

After briefing in this case was complete, the Supreme Court 

held that under section 1170.95, “petitioners are entitled to the 

appointment of counsel upon the filing of a facially sufficient 

petition (see § 1170.95, subds. (b), (c)) and that only after the 

appointment of counsel and the opportunity for briefing may the 

superior court consider the record of conviction to determine 

whether ‘the petitioner makes a prima facie showing that he or 
7

she is entitled to relief.’ (§ 1170.95, subd. (c).)” (People v. Lewis

(2021) 11 Cal.5th 952, 957 (Lewis).) The court also held that the 

deprivation of the right to counsel under section 1170.95 is “state 

law error only, tested for prejudice under People v. Watson (1956) 

46 Cal.2d 818, 299 P.2d 243 (Watson).” (Ibid.)

Under the standard articulated in Lewis, the superior court 

erred in failing to appoint counsel to appellant. Appellant’s 

section 1170.95 petition was arguably facially sufficient, because 

he incorrectly checked the box stating that he “pled guilty or no 

contest to 1st or 2nd degree murder.” Any error was harmless, 

however. Because a person convicted of voluntary manslaughter 

is not eligible for section 1170.95 relief, appellant cannot 

“demonstrate there is a reasonable probability that in the 

absence of the error he or she would have obtained a more 

favorable result.” (People v. Lightsey (2012) 54 Cal.4th 668, 699.) 

DISPOSITION

The denial of appellant’s petition under section 1170.95 is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.