1

Filed 2/3/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRENCE TOBERT HARRIS,

Defendant and Appellant.

E074136

(Super.Ct.No. RIF10003985)

OPINION

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

Affirmed.

Mark D. Johnson, 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, Charles C. Ragland, Meredith S. 

White and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Terrence Robert Harris pled guilty to voluntary manslaughter and attempted 

murder. He filed a petition under Penal Code section 1170.95 (unlabeled statutory 

citations are to this code) to vacate those convictions. The trial court denied the petition, 
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concluding that Harris is ineligible for relief under section 1170.95 because he was not 

convicted of murder. Harris appeals from the trial court’s order. Because section 

1170.95 does not provide relief for those convicted of voluntary manslaughter and 

attempted murder, we affirm.

BACKGROUND

In 2010, Harris was charged along with three other individuals with one count of 

premeditated first degree murder (§ 187, subd. (a)) in the commission or attempted 

commission of a robbery (§ 190.2, subd. (a)(17)(A)) and two counts of robbery (§ 211). 

One year later, an amended complaint filed against Harris included the original charges 

plus one count of voluntary manslaughter of the same victim in the murder count (§ 192, 

subd. (a)) and one count of attempted murder of another victim (§§ 187, subd. (a), 664). 

Harris pled guilty to the two counts of robbery and one count each of attempted murder

and voluntary manslaughter in exchange for dismissal of the murder count. The parties 

agreed to a stipulated prison term of 16 years four months, which the trial court imposed 

at sentencing.

In 2019, following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) 

(Senate Bill 1437), Harris petitioned for resentencing under section 1170.95. The trial 

court denied the petition, concluding that section 1170.95 provides relief for murder 

convictions only.
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DISCUSSION

A. Overview of Senate Bill 1437 and Section 1170.95

“Senate Bill 1437 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 provide that only defendants who act with malice can 

be convicted of murder, subject only to an exception for first degree felony murder, the 

scope of which has been restricted. (People v. Sanchez (2020) 48 Cal.App.5th 914, 917 

(Sanchez); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)

“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 

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

had not been previously been sentenced.’ (§ 1170.95, subd. (d)(1); see also id., subd. 

(c).)” (Sanchez, supra, 48 Cal.App.5th at p. 917; Gentile, supra, 10 Cal.5th at p. 843.) 

Subdivision (a) of section 1170.95 provides that “[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 specified conditions are met. 
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B. Standard of Review

“We independently review questions of statutory interpretation. (People v. Prunty

(2015) 62 Cal.4th 59, 71.) In interpreting a statute, our ‘“fundamental task . . . is to 

determine the Legislature’s intent so as to effectuate the law’s purpose.”’ (People v. Ruiz

(2018) 4 Cal.5th 1100, 1105.) ‘“Because the statutory language is generally the most 

reliable indicator of that intent, we look first at the words themselves, giving them their 

usual and ordinary meaning.”’ (Ibid.) ‘“If the statutory language is unambiguous, then 

its plain meaning controls. If, however, the language supports more than one reasonable 

construction, then we may look to extrinsic aids, including the ostensible objects to be 

achieved and the legislative history.”’ (Id. at p. 1106.)” (Sanchez, supra, 48 Cal.App.5th 

at p. 918.) “It is axiomatic that the ‘“‘language of a statute should not be given a literal 

meaning if doing so would result in absurd consequences which the Legislature did not 

intend.’”’” (Id. at p. 919.) 

C. Section 1170.95 Applies to Murder Convictions

Harris argues that he qualifies for resentencing relief under section 1170.95 as a 

person who pled guilty to attempted murder and voluntary manslaughter “in order to 

avoid a murder conviction” under a qualifying theory. (§ 1170.95, subd. (a)(2).) To 

reach this conclusion, Harris “reads section 1170.95 as containing an ambiguity that he 

argues must be interpreted in his favor in order to avoid rendering some of the statutory 

language surplusage, which he claims would create an absurd result.” (Sanchez, supra, 

48 Cal.App.5th at p. 917.) This court has already rejected this argument in Sanchez, at 

pages 917-921 with respect to a plea of guilty to voluntary manslaughter. Harris 
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contends that Sanchez was wrongly decided. We do not agree and see no reason to 

depart from our previous holding. In addition, because there is no reason to treat a guilty 

plea to attempted murder differently from a guilty plea to voluntary manslaughter under 

the statute, we adopt our reasoning in Sanchez and also reject Harris’s argument that 

section 1170.95 relief is available to him as someone who pled guilty to attempted 

murder to avoid a murder conviction.

Harris also argues that Senate Bill 1437 applies generally to attempted murder 

convictions. There is currently a split of authority on that issue, with some courts holding 

that Senate Bill 1437 does not apply to attempted murder at all, some holding that it 

applies only prospectively, and some holding that it applies both prospectively and 

retroactively to nonfinal convictions.

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 (See People v. Love (2020) 55 Cal.App.5th 273, 

278-279 (Love) [summarizing the split of authority].) That split of authority is irrelevant 

in the present case because Harris’s attempted murder conviction is final, and section 

1170.95 sets forth “the exclusive avenue for retroactive relief under Senate Bill 1437.” 

(Gentile, supra, 10 Cal.5th at p. 853.) No court has held that Senate Bill 1437 applies 

retroactively to final convictions of attempted murder.

We therefore do not address any of Harris’s arguments about Senate Bill 1437’s

applicability to attempted murder under the natural and probable consequences doctrine 

either prospectively or retroactively to nonfinal convictions. Instead, we analyze Senate 

1 The issue of whether Senate Bill 1437 applies to attempted murder liability under 

the natural and probable consequences doctrine is currently pending review in our 

Supreme Court. (People v. Lopez (2019) 451 P.3d 777 [2019 Cal. Lexis 8414].) 
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Bill 1437’s applicability to final convictions of attempted murder through the sentencing 

relief procedure set forth in section 1170.95. (Gentile, supra, 10 Cal.5th at p. 853.) We 

join the other appellate courts that have concluded that relief under section 1170.95 is not 

available to those convicted of attempted murder. (See People v. Larios (2019) 42 

Cal.App.5th 956, 970 (Larios), review granted Feb. 26, 2020, S259983; People v. 

Alaybue (2020) 51 Cal.App.5th 207, 222-225 (Alaybue); Love, supra, 55 Cal.App.5th at 

p. 292; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018 (Medrano), review granted 

Mar. 11, 2020, S259948.)

Looking to the plain language of the statute, this court has already held that

section 1170.95 applies only to defendants convicted of murder. (Sanchez, supra, 48 

Cal.App.5th at p. 918.) “Section 1170.95 allows ‘[a] person convicted of felony murder 

or murder under a natural and probable consequences theory [to] file a petition’ to seek to 

have that ‘murder conviction vacated and to be resentenced on any remaining counts’ if 

certain conditions are met. (§ 1170.95, subd. (a).) Subdivision (d) of section 1170.95 

reiterates that the available relief under the section is the vacating of a ‘murder 

conviction.’ (§ 1170.95, subd. (d)(1)-(2).)” (Sanchez, at p. 918.) Section 1170.95 refers 

exclusively to murder convictions and does not mention voluntary manslaughter or 

attempted murder. (Sanchez, at p. 918; Love, supra, 55 Cal.App.5th at p. 292; Larios, 

supra, 42 Cal.App.5th at p. 969.) Harris argues that because subdivision (a) of section 

1170.95 specifies that a person convicted under a qualifying theory may petition for 

relief, the relief is not limited to those persons convicted of murder. The argument fails 

because the same subdivision provides that the relief petitioners may seek is “to have the 
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petitioner’s murder conviction vacated.” (§ 1170.95, subd. (a), italics added.) No one 

other than a person convicted of murder could seek to have a “murder conviction 

vacated.” (Ibid.) Use of the permissive word “may” in this provision therefore does not 

indicate that section 1170.95 is not limited to those offenders convicted of murder under 

a qualifying theory. Instead, it indicates that offenders convicted of murder under a 

qualifying theory are not required to seek resentencing relief. In sum, as we explained in 

Sanchez, “these ‘petitioning prerequisites and available relief all presuppose a murder 

conviction.’ [Citation.] By its plain language, section 1170.95 thus makes resentencing 

relief available only to qualifying persons convicted of murder.” (Sanchez, at p. 918; 

Love, at p. 292 [section 1170.95’s “mechanism for retroactive relief applies only to 

persons seeking to vacate a conviction for ‘murder’”].) Because Harris was convicted of 

attempted murder and voluntary manslaughter and not murder, he consequently is not 

eligible for relief under section 1170.95. 

As the petitioner did in Sanchez, supra, 48 Cal.App.5th at page 918, Harris 

nevertheless contends that section 1170.95 applies to those convicted of attempted 

murder or voluntary manslaughter by plea because of an alleged ambiguity in one of the 

three qualifying conditions that must be met under subdivision (a) of section 1170.95. 

“One of those conditions requires the petitioner to have been ‘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.’ (§ 1170.95, 

subd. (a)(2), italics added.)” (Sanchez, at p. 918.) Like the petitioner in Sanchez, Harris 

maintains that because the plea portion of this condition does not expressly mention that 
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the guilty plea had to be to murder, section 1170.95 must apply to defendants, like him,

who pled guilty to attempted murder or voluntary manslaughter to avoid being convicted 

of murder at trial. (Sanchez, at pp. 918-919.) We rejected the same argument in Sanchez

with respect to voluntary manslaughter and explained: “The argument is unpersuasive 

because it ‘ignores the introductory language in section 1170.95, subdivision (a) that 

limits petitions to persons “convicted of . . . murder.”’ [Citation.] Subdivision (a) of 

section 1170.95 provides that ‘[a] person convicted of felony murder or murder under a 

natural and probable consequences theory’ may petition to have that ‘murder conviction 

vacated’ ‘when all of the following conditions apply.’ (§ 1170.95, subd. (a).) 

Consequently, only a person who has been ‘convicted of felony murder or murder under 

a natural and probable consequences theory’ may petition for relief under section 1170.95 

in the first place. (§ 1170.95, subd. (a).) If that prerequisite is not met, then fulfillment 

of the subparts in subdivision (a) is not relevant.” (Sanchez, at p. 919.)

Harris further argues that interpreting section 1170.95 as limited to defendants

convicted of murder would render most of the language in subdivision (a)(2) surplusage,

because it would be unnecessary to distinguish between those convicted by trial and those 

convicted by guilty plea. We rejected that argument in Sanchez, supra, 48 Cal.App.5th 

914 as well. “Specifying that section 1170.95 applies to murder convictions both by trial 

and by guilty plea clarifies that it does not matter how the murder conviction was 

obtained for section 1170.95 to apply. Regardless of whether that clarification was 

necessary, ‘“the Legislature may choose to state all applicable legal principles in a statute 

rather than leave some to even a predictable judicial decision.”’ [Citation.] Express 
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statutory language defining the class of defendants to whom section 1170.95 applies is

not surplusage. [Citation.] Such clarification ‘may eliminate potential confusion and 

avoid the need to research extraneous legal sources to understand the statute’s full 

meaning.’” (Sanchez, at p. 919.) 

Harris also contends that this interpretation of subdivision (a)(2) of section 

1170.95 still renders surplusage the phrase “in lieu of a trial at which the petitioner could 

be convicted for first degree or second degree murder.” We disagree, because we read 

this statutory language as emphasizing that only these particular types of guilty pleas 

meet the threshold of eligibility for relief under section 1170.95. As we explained in 

Sanchez, supra, 48 Cal.App.5th at page 919, the Legislature is free to “choose to state all 

applicable legal principles in a statute rather than leave some to even a predictable 

judicial decision,” even if some of those principles are redundant. (Reno v. Baird (1998) 

18 Cal.4th 640, 658, superseded by statute on another ground in Gov. Code, § 12940, 

subd. (j)(3).) Moreover, the Legislature may so choose “without fear the courts will find 

them unnecessary and, for that reason, imbued with broader meaning.” (Ibid.)

Harris further argues that our analysis wrongly attributes significance to the 

Legislature’s failure to mention offenses other than murder in section 1170.95. (Sanchez, 

supra, 48 Cal.App.5th at p. 918.) He contends that the phrase “in lieu of a trial at which 

the petitioner could be convicted for first degree or second degree murder” in subdivision 

(a)(2) of section 1170.95 “encompass[es] convictions for the variety of offenses a 

defendant could plead guilty to in order to avoid a murder conviction.” Again, the 

argument fails because the qualifying condition in subdivision (a)(2) applies only if the 
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offender meets the necessary prerequisite of having been “convicted of . . . murder.” 

(§ 1170.95, subd. (a).) 

Like the petitioner in Sanchez, Harris further “claims that our interpretation 

produces an absurd result by allowing more culpable individuals to seek relief under 

section 1170.95.” (Sanchez, supra, 48 Cal.App.5th at p. 919.) “Thus, the less culpable 

defendant, that is, the one who was offered a plea to voluntary manslaughter or attempted 

murder rather than murder,” cannot obtain any relief, but “a more culpable defendant, 

who was forced to plead to murder,” can get the murder conviction vacated. Harris 

concludes that the Legislature could not have intended “such an illogical result.”

We are not persuaded, because such incongruities are inevitable under Senate Bill 

1437 and are not limited to homicide offenses. The natural and probable consequences

doctrine is a general theory of accomplice liability: “‘A person who knowingly aids and 

abets criminal conduct is guilty of not only the intended crime [target offense] but also of 

any other crime the perpetrator actually commits [nontarget offense] that is a natural and 

probable consequence of the intended crime.’” (People v. Medina (2009) 46 Cal.4th 913, 

920, italics added.) By requiring that a defendant cannot be convicted of murder unless 

the defendant acted with malice, Senate Bill 1437 eliminated liability for murder based 

on the natural and probable consequences doctrine. (Gentile, supra, 10 Cal.5th at p. 839

[Senate Bill 1437 “bars a conviction for first or second degree murder under a natural and 

probable consequences theory”]; id. at pp. 846, 847-848.) But the Legislature left the 

natural and probable consequences doctrine intact as to every other crime. As a result, 

section 1170.95 will provide relief to defendants convicted of murder on a natural and 
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probable consequences theory but will not provide relief to defendants convicted of lesser 

crimes on the same theory. We cannot infer from the alleged absurdity of such disparate 

treatment that the Legislature actually intended to provide relief as to the lesser crimes as 

well. “When the Legislature reforms one area of the law, it is not required to reform 

other areas of the law. [Citation.] It may elect to make reforms ‘“‘one step at a time, 

addressing itself to the phase of the problem which seems most acute to the legislative 

mind.’”’” (People v. Cervantes (2020) 44 Cal.App.5th 884, 888 (Cervantes).)

For all of these reasons, we conclude that section 1170.95 relief is not available to 

those offenders convicted of attempted murder, by guilty plea or otherwise, or to those 

offenders convicted of voluntary manslaughter. “Because section 1170.95 is clear and 

unambiguous, we need not consult its legislative history to determine the statute’s 

meaning.” (Sanchez, supra, 48 Cal.App.5th at p. 920, fn. 3.) We therefore do not 

consider any of Harris’s arguments about the legislative history of Senate Bill 1437. In 

addition, because we conclude that section 1170.95 relief is not available to those 

convicted of attempted murder or voluntary manslaughter, we need not and do not 

address Harris’s alternative arguments about the sufficiency of his petition in stating a 

prima facie case for relief or whether Harris was denied effective assistance of counsel 

because his appointed attorney failed to file an amended petition. 

D. Equal Protection

Harris also argues that section 1170.95 violates equal protection under the state 

and federal Constitutions unless it is interpreted to allow for resentencing for attempted 

murder convictions under a qualifying theory and to “provide relief for defendants who 
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pled guilty to another charge to avoid a conviction for murder under a qualifying theory.”

(Boldface and initial capitalization omitted.) We rejected the same argument as it 

pertains to guilty pleas to voluntary manslaughter in Sanchez, supra, 48 Cal.App.5th at 

pages 920-921, and we see no reason to depart from that analysis here.

When, “as here, a disputed statutory disparity implicates no suspect class or 

fundamental right, ‘equal protection of the law is denied only where there is no “rational 

relationship between the disparity of treatment and some legitimate governmental 

purpose.”’” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).) 

“‘This standard of rationality does not depend upon whether lawmakers ever actually 

articulated the purpose they sought to achieve. Nor must the underlying rationale be 

empirically substantiated. [Citation.] While the realities of the subject matter cannot be 

completely ignored [citation], a court may engage in “‘rational speculation’” as to the 

justifications for the legislative choice [citation]. It is immaterial for rational basis review 

“whether or not” any such speculation has “a foundation in the record.”’ [Citation.] To 

mount a successful rational basis challenge, a party must ‘“negative every conceivable 

basis”’ that might support the disputed statutory disparity. [Citations.] If a plausible 

basis exists for the disparity, courts may not second-guess its ‘“wisdom, fairness, or 

logic.”’” (Ibid.)

To succeed on his equal protection challenge, Harris must first demonstrate that

those convicted of murder under a qualifying theory are situated similarly to those who 

pled guilty to attempted murder or voluntary manslaughter in order to avoid a murder 

conviction under a qualifying theory, as well as to those tried and convicted of attempted 
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murder or voluntary manslaughter under the natural and probable consequences theory. 

(Johnson, supra, 60 Cal.4th at p. 882; Sanchez, supra, 48 Cal.App.5th at p. 920.) He then 

must “‘“negat[e] every conceivable basis”’” for the legislative choice to omit those 

specified classes of offenders not committed of murder from relief under section 1170.95. 

(Johnson, at p. 882, italics added.) Assuming for the sake of argument that all these 

offenders are similarly situated for purposes of section 1170.95, construing section 

1170.95 to apply only to murder convictions does not violate equal protection, because 

we can conceive of at least one rational reason for the Legislature to limit relief under 

section 1170.95 to those convicted of murder.

As we explained in Sanchez, supra, 48 Cal.App.5th at page 921, “the Legislature 

could have reasonably concluded ‘that the punishment for voluntary manslaughter was 

appropriate, but the punishment for murder based on the [natural and probable 

consequences theory] could be excessive and reform was needed only there.’” This same 

analysis applies to punishment for attempted murder, which also carries a lighter

punishment than murder. (Alaybue, supra, 51 Cal.App.5th at p. 225.) Given that the 

punishment for murder is much more severe than the punishment for voluntary 

manslaughter or attempted murder, “the Legislature could have reasonably concluded 

that the need to address sentencing reform was more appropriately directed at persons 

convicted of murder as opposed to attempted murder” or voluntary manslaughter. (Id. at 

p. 224; Cervantes, supra, 44 Cal.App.5th at p. 888.) The Legislature thus could have 

reasonably chosen to apply its “ameliorative reforms to those instances where it 

perceived the disconnect between culpability and punishment to be most glaring.” 
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(Alaybue, at p. 225; Love, supra, 55 Cal.App.5th at p. 288 [“the Legislature may have 

wanted to focus on the crime—that is, murder—for which the gap [between the 

individual’s culpability and the resulting sentence] was most pronounced”].) “‘“The 

Legislature is responsible for determining which class of crimes deserves certain 

punishments and which crimes should be distinguished from others. As long as the 

Legislature acts rationally, such determinations should not be disturbed.”’” (Sanchez, at 

p. 921.) Even assuming that the same grounds that support providing resentencing relief 

to convicted murderers under a qualifying theory would support providing relief to other 

categories of offenders as well, the Legislature is not required to reform an entire area of 

law at once. (Cervantes, supra, at p. 888.) The Legislature instead may choose to make 

incremental steps toward reformation by choosing first to address the problem it has 

deemed most acute. (Ibid.; Sanchez, at p. 921.) Again, we will not disturb that choice so 

long as there is a rational relationship because the distinction and some legitimate 

governmental purpose.

Harris argues that even if the gaps in culpability “could in some abstract way 

justify the disparate treatment, they cannot in light of the net economic gain from 

allowing those convicted of attempted murder to be resentenced.” We rejected this 

argument in Sanchez, supra, 48 Cal.App.5th at page 921, and the same reasoning applies 

to those convicted of attempted murder. In short, whether expanding section 1170.95 

relief to those offenders not convicted of murder would result in increased fiscal savings 

by decreasing incarceration costs does not demonstrate that limiting the relief to 
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convicted murderers is irrational. (Sanchez, at p. 921.) “That is exactly the type of fiscal 

line-drawing and policymaking decision that the Legislature is free to make.” (Ibid.)

Because a rational basis supports the Legislature’s decision to exclude those 

convicted of attempted murder and voluntary manslaughter from the ambit of section 

1170.95, the legislative line-drawing between offenses in section 1170.95 withstands 

constitutional scrutiny.

DISPOSITION

The trial court’s order denying Harris’s section 1170.95 petition is affirmed.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.