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Filed 1/28/21 P. v. Duque CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LESTER ALFREDO DUQUE,

Defendant and Appellant.

 A158604

 (Contra Costa County

 Super. Ct. No. 5-160789-4)

Defendant Lester Alfredo Duque appeals from the trial court’s denial of 

his resentencing petition brought under Penal Code section 1170.95. The 

trial court denied the petition on the ground defendant, who had been

convicted of voluntary manslaughter pursuant to a plea agreement, did not 

meet the prerequisite of currently being convicted of first or second degree 

murder. 

On appeal, defendant contends section 1170.951 applies to petitioners 

like him who plead to manslaughter “in lieu of a trial at which the petitioner 

could be convicted for first or second degree murder,” quoting section 1170.95, 

subdivision (a)(2). We rejected this argument in People v. Paige (2020) 51 

Cal.App.5th 194, 201–202 (Paige). We decline defendant’s invitation to 

depart from Paige and every other appellate decision that has reached the 

1 All undesignated statutory references are to the Penal Code. 
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same conclusion. (See id. at p. 201 [noting “appellate courts have repeatedly

rejected the argument” that section 1170.95 applies to defendants who were

charged with murder and pleaded to voluntary manslaughter and cataloging 

cases].) Accordingly, we affirm.

BACKGROUND

In May 2016, the Contra Costa County District Attorney charged 

defendant with murder (§ 187, subd. (a); count 1) with special allegations 

that he personally used a firearm (§ 12022.53, subd. (b)) and that he 

committed the offense while aiding and abetting a robbery and a burglary 

(§ 190.2, subd. (a)(17)). Defendant was also charged with attempted home 

invasion robbery (§§ 664, 211; count 2) and first degree residential burglary 

(§§ 459, 460, subd. (a); count 3) with a firearm enhancement (§§ 12022.53, 

subd. (b), 12022.5, subd. (a)) for both counts. 

In November 2016, defendant reached a plea agreement under which 

he entered a plea of no contest to voluntary manslaughter (§ 192, subd. (a)) 

with a firearm enhancement (12022.5) and count 2 (attempted robbery with a 

firearm enhancement) with a maximum sentence of 25 years in prison, in 

exchange for dismissal of the remaining charges. 

In May 2019, defendant filed a petition for resentencing under section 

1170.95. Defendant asserted (1) he was charged with first or second degree 

murder and accepted a plea bargain for manslaughter in lieu of going to trial 

because he believed he could be convicted of murder under the felony murder 

rule or natural and probable consequences doctrine, and (2) he could not now 

be convicted of murder because of changes made to the law effective January 

1, 2019. 

The trial court denied the petition “[b]ecause the fact of a murder 

conviction is a pre-requisite to obtaining relief under the statute.” 
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DISCUSSION

“[S]ection 1170.95, which became effective in January 2019, was 

adopted by the Legislature as part of the changes in the application of the 

felony murder and natural and probable consequences theories of murder 

liability contained in Senate Bill No. 1437. It entitles certain defendants to 

petition the superior court for resentencing. (Paige, supra, 51 Cal.App.5th at 

p. 197.) 

Subdivision (a) of section 1170.95 provides: “(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 because of changes to Section 188 or 189 made effective January 1, 

2019.” (Italics added.) 

Defendant argues the plain meaning of the portion of section 1170.95, 

subdivision (a)(2) (§ 1170.95(a)(2)), italicized above demonstrates the statute 

applies to persons who pleaded to manslaughter after having been charged 

with murder. As we explained in Paige, “read in the context of the statute as 

a whole, considering both its structure and its language, subdivision (a)(2) 

cannot reasonably be understood to encompass persons who accept a plea 
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offer in lieu of trial for a crime other than murder. The first paragraph of 

section 1170.95, subdivision (a) sets forth the basic ‘who’ and ‘what’ of the 

statute—who may seek relief and what they may seek. The ‘who’ is ‘[a] 

person convicted of felony murder or murder under a natural and probable 

consequences theory’ . . . .” (51 Cal.App.5th at p. 202.) “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.” (Ibid.) We also 

relied on other language in the statute referring to the “murder conviction” 

and the legislative history demonstrating “the Legislature’s focus on 

reforming liability for murder and not for any other crime.” (Id. at pp. 202–

203.) 

Defendant forthrightly acknowledges that every published decision to 

consider this issue concurs with Paige’s holding that section 1170.95 does not 

apply to defendants who have entered pleas to voluntary manslaughter, but 

he advances his position because he believes it is correct and to preserve the 

issue for further review in the California Supreme Court. However, 

defendant’s arguments—that our interpretation renders some of the 

language of section 1170.95(a)(2) surplusage, that a general provision is 

controlled by one that is special, that our interpretation is contrary to the 

purpose of the law, and that any ambiguity should be resolved in favor of 

criminal defendants—do not persuade us to deviate from Paige. We 

understand that defendant believes the reference to “a trial at which the 

petitioner could be convicted for . . . second degree murder” (italics added) in 
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section 1170.95(a)(2) is dispositive, but we stand by our construction based on 

our reading of the statute as a whole.

DISPOSITION

The order denying defendant’s petition under section 1170.95 is 

affirmed. 

_________________________

Miller, J.

WE CONCUR:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A158604, People v. Duque