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Filed 4/27/21 P. v. Williams CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent,

v. TRACY JOLEEN WILLIAMS, Defendant and Appellant. A158 917

(Humboldt County Super. Ct. No. CR091869DS)

Defendant Tracy Williams , who was charged with murder but pleaded guilty to voluntary manslaughter , appeals an order denying her Penal Code
section 1170.95 1 petition for resentencing. The trial cour t erred by finding
section 1170.95 unconstitutional. However, because a conviction for voluntary manslaughter is ineligible for resentencing under s ection 1170.95,

we affirm. FACTUAL AND PROCEDURAL BACKGROUND
In 200 9, d efendant was charged with murder (§ 187, subd. (a)) which
occurred while she engaged in an attempted robbery (§ 190.2, subd. (a)(17) )

. Pursuant to a negotiated disposition, d efendant pleaded guilty to one count of voluntary manslaughter (§ 192, subd. (a)) and one count of first degree robbery ( § 211). She admitted a personal firearm use enhancement

1 Undesignated statutory references are to the Penal Code.2

(§ 12022.5, subd. (a)) and that she acted in concert with two or more individuals (§ 213, subd . (a)(1) (A) )

. The court sentenced her to 23 years in state prison. While defendant was serving her sentence, the Legislature enacted Senate Bill No. 1437 (SB 1437) to restrict “the circumstances under which a person can be liable for murder under the felony

- murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015.) ” ( People v.
Lamoureux (2019) 42 Cal.App.5th 241, 246 ( Lamoureux ).) It amended sections 188 and 189, relating to murder, “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participan t in the underlying felony who
acted with reck less indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); §§ 188, subd. (a)(3), 189, subd. (e).) The legislation also established a procedure for vacating prior convictions for felony murder o r murder under the natural and probable consequences theory that do not fulfill these amended criteria. (§ 1170.95, subds. (a), (c), (d)(1).) Shortly after the legislation was enacted , defendant filed a section
1170.95 petition for resentencing. On the record, t he trial court found that
the defendant made a prima facie showing that she was entitled to relief. 2 In the actual order, the trial court dismissed the petition after concluding
section 1170.95 was unconstitutional

— finding it violated the separation of powers doctrine and victims’ right to finality of judgments, and it deprived the parties of their right to have a jury trial

.

2 T he trial court accepted defendant’s argument that she entered “a plea to manslaughter with the idea that the People could pursue first degree murder based on the facts, and that is provided for in Senate Bill 1357.”3 DISCUSSION A. Section 1170.95 is constitutional. At the outset, d efendant argues section 1170.95 is constitutional. We

agree . T he trial court erred by concluding otherwise

. ( See People v. Bucio (2020) 48 Cal.App.5th 300, 313 [ § 1170.95 does not violate right to finality in judgment under Victims ’ Bill of Rights Act of 2008 because i t did not restrict the Legislature from creating postconviction procedures] ; Lamoureux
, supra , 42 Cal.App.5th at pp. 261

– 263 , 267 [ SB 1437 does not violate separation of

powers doctrine or the petitioner’s right to a jury trial ].) And the district attorney’s additional constitutional challenges have been similarly considered and rejected

. ( See People v. Alaybue (2020) 51 Cal.App.5th 207, 219 [ SB 1437 does not violate the separation of powers by giving the prosecutorial power of charge selection to the trial court]; Lamoureux, supra , 42 Cal.App.5th at p. 246 [SB 1437 does not violate Proposition 7 or 115] .) We follow these decisions and reject the district attorney’s contentions. However, denying the petition was proper

. D efendant ’s conviction for voluntary manslaughter does not qualify for resentencing under section
1170.95. None of defendant’s arguments convince us otherwise.
B. The court can consider matters of law for the first time on appeal. D efendant urges this court to disregard the claim that voluntary manslaughter convictions are ineligible for resentencing under section
1170.95

. Defendant argues that t he district attorney did not make this argument in the trial cou rt , and defendant invokes the rule that the district attorney may not change theories on appeal. (See People v. Carr (1974) 43 Cal.App.3d 441, 444

– 445.) However, we find that the issue of whether the defendant made a prima f acie showing of eligibility under Penal Code section 1170.95 presents4

a question of law based on undisputed facts that we may consider for the first time on appeal. ( See People v. Hines (1997) 15 Cal.4th 997, 1061 ; Pen. Code, § 1170.95, subd. (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” in certain circumstances ]; People v. Flores (2020) 44 Ca l.App.5th 985, 992 [ whether persons convicted of voluntary manslaughter are eligible for Pen. Code, § 1170.95 relief is a mat ter of statutory interpretation, an issue of law] .) And c ontrary to defendant’s unsupported assertions, it is not manifestly unjust to consid er this new argument

. Pursuant to Penal Code section 1252 , “the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the
trial court adverse to the State which it may be requested to pass upon by the Attorney General

. ” ( Cf. Gov. Code, § 68081 [before deciding an issue not initially raised or briefed by the parties, “the court shall afford the parties an opportunity to present their views on the matt er through supplemental briefing”].) It is unnecessary to afford supplemental briefing because the
d efendant’s reply brief thoroughly presented her views and responded to the People’s one

- paragraph argument on the matter. W e exercise our discretion
to address this issue. C. Convictions Eligible for Section 1170.95 Resentencing Defend ant argues that petitioners who accepted voluntary manslaughter pleas in lieu of a trial for first degree murder are eligible for resentencing under section 1170 .95

. When interpreting a statute, we review
its plain language , giving the words their ordinary meaning, viewing them in
their statutory context , and harmonizing them to give effect to the provision’s intended purpose. ( People v. Gonzales ( 2018) 6 Cal.5th 44, 50 .) After5

reviewing the statute de novo , we conclude the plain language does not support defendant’s argument that she presented a prima facie showing that
her voluntary manslaughter conviction is eligible under section 1170.95

. ( People v. Prunty (2015) 62 Cal.4th 59, 71.) Section 1170.95 expressly applies only to petitioners convicted of
murder. S ubdivision (a) provides , “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 three specific conditions apply. (§ 1170.95, subd. (a), italics added.) Those are : “ (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 doc trine. [¶] (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 co uld not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)

– (3) .) Defendant acknowledges this language appears to limit the class of petitioners eligible for sec tion 1170.95 relief to those convicted of murder

. Instead, she argues subdivision (a)(2)’s reference to petitioners who “ accept ed a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder ” must be read as extending resentencing relief to persons who pleaded guilty to other crimes, including manslaughter

. (§ 1170.95, subd. (a)(2).) However, Division Two of this C ourt in People v. Paige (2020) 51 Cal.App.5th 194 ( Paige ) already rejected that argument:

“ [ R ] ead in the context of th e statute as a whole, considering both its structure6

and its language, subdivision (a)(2) cannot reasonably be understood to encompass persons who accept a plea offer

. . . for a crime other than
murder. ” ( Id . at p. 202.) Subdivision (a) limits “ who ” is entitled to seek relief

— a person convicted of felony murder or murder under a natural and probable consequences theory . ( Paige , at p. 202. ) Subdivision (a)(2) further limits the relief sought

— “the opportunity to ‘ file a petition with the court

. . . to have the petitioner’s murder conviction vacated .’ ” ( Paige , at p. 202. ) Based on the statute’s language and structure , “ 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

. , italics added. ) This conclusion is consistent with other appellate court decisions addressing the same issue

. 3 ( See, e .g., People v. Turner (2020) 45 Cal.App.5th 428, 435

– 436 ( Turner ) ; People v. Cervantes (2020) 44 Cal.App.5th 884, 887 [ “ The plain language of the statute is explicit; its scope is limited to murder
convictions ” ].) And contrary to defendant’s assertions, this construction does
not render the language in section 1170.95, subdivision (a)(2) superfluous. ( See People v. Sanchez (2020) 48 Cal.App.5th 914, 919 [ “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”]. ) The express statutory language demonstrates
d efendant ’s voluntary manslaughter conviction is ineligible for section
1170.95 resentencing

.

3 We note that the California Supreme Court granted review of a related question of whether SB 1437 applies to defendants convicted of attempted murder

. ( People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175.)7

D. Senate Bill No. 1437 ’s Legislative Purpose Defendant argues that precluding person s convicted of voluntary manslaughter convictions is contrary to the Legislature’s intent in enacting SB 1437 and would lead to absurd results

. ( Turner, supra , 45 Cal.App.5th at

p p . 43 8

– 439 [ courts may disregard a statute’s plain language if it contravenes the Legislature’s intent or results in absurd consequences].) We disagree. Citing SB 1437’s uncodified findings, defendant claims the Legislature
inten ded to “ ‘ more equitably sentence offenders in accordance with their
involvement in homicides , ’ ” not only murders. ( Stats. 2018, ch. 1015, § 1, subd. (b) , italics added.) H owever , those same findings go on, noting the Legislature was “ amend[ing] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder , to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. ” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.) This purpose does not extend to the crime of voluntary manslaughter. (See People v. Shiga (2019) 34 Cal.App .5th 466, 476 [ “ ‘ if the Legislature meant to define only one offense, we may not turn it into two ’ ” ].)
This construction does not produce absurd results or unfairly exclude petitioners with voluntary manslaughter convictions from the benefits of
section 1170.95 resentencing

. Punishments for manslaughter

— a determinate sentence of 3, 6, or 11 years in prison

— a re already less than those imposed for first degree murder

— possibility of 25 years to life

. ( Turner, supra , 45 Cal.App.5th at p. 439 [citing § 193, subds. (a)

– (b)] ; § 190, subd (a) .) Thus, “ [p] roviding relief solely to defendants convicted of murder under a felony

- murder or natural and probable consequences the ory does not8

conflict with the Legislature’s stated objective to make ‘ statutory changes to more equitably sentence offenders in accordance with their involvement in
homicides. ’ ” ( Turner , at p. 439. ) By pleading guilty to manslaughter , defendant may now be in a worse position than if she were convicted of first degree murd er

. (§ 193, subd. (a).) In those latter circumstances, she would
have be en eligible for section 1170.95 resentencing

. However, given defendant’s conviction for voluntary manslaughter, “ we are constrained to conclude Senate Bill 1437 does not provide [defendant] an avenue for relief.” ( Turner
, supra , 45 Cal.App.5th at p

. 441.) None of defendant’s additional arguments alter that conclu sion. We further reject defendant’s claim that the rule of lenity applies
here

— “courts must resolve doubts as to the meaning of a statute in a criminal defendant ’ s favor

. . . . ” ( People v. Avery (2002) 27 Cal.4th 49, 57.)
As discussed , section 1170.95’s text is clear and there is no doubt of its meaning. ( See People v. Anderson (2002) 28 Cal.4th 767, 780 [ rule of lenity applies “only if two reasonable interpretations of the statute stand in relativ e equipoise ” ].)
E. Equal Protection Finally, d enying persons who pleaded guilty to voluntary manslaughter offenses the benefits of sect ion 1170.95 resentencing does not violate their rights to equal protection , contrary to defendant’s claims

. The “requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.” ( People v. Chatman (2018) 4 Cal.5th 277, 288 ( Chatman ) ; U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)

. ) “We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly9

situated in all material respects, we consider whether the cha llenged classification ultimately bears a rational relationship to a legitimate state interest.” ( Chatman , at p. 289. ) Defendant fails to fulfill either requirement. Contrary to defendant’s assertions, persons who pleaded guilty to voluntary manslaughter are not similarly situated to those convicted of first degree murder. ( People v. Cervantes , supra , 44 Cal.App.5th at p. 888 [ generally , “ ‘ offenders who commit different crimes are not similarly
situated ’ for equal protection purposes , ” and manslaughter and murder are different crimes carrying different punishments ]

. ) Nor has defendant
demonstrated the absence of “ rational basis for the unequal treatment

. . . . ” ( Chatman, supra , 4 Cal.5th at p. 289.) Th e Legislature focused “on the unfairness of the felony murder rule , ” and it “ could reasonably decide that the punishment for voluntary manslaughter was appropriate, but the punishment for murder based on the felony murder rule could be excessive
and reform w as needed only there. ” ( Cervantes
, supra , 44 Cal.App.5th at p.
888 .) DISPOSITION The order denying defendant’s section 1170.95 petition is affirmed.10 _________________________ Jackson, J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Wiseman, J. *

A158917/ People v. Tracy Joleen Williams

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.