People v. Hamilton CA4/1 ( 2021 )

Filed 4/23/21 P. v. Hamilton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077879
Plaintiff and Respondent,
v. (Super. Ct. No. SCN292715)
KENNETH HAMILTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed.
Mark Alan Hart, 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, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respond.
In 2011, Kenneth Hamilton was charged, along with other gang
members, with two counts of murder. Hamilton entered into a negotiated
plea agreement. Hamilton pleaded guilty to two counts of voluntary
manslaughter (Pen. Code,1 § 192, subd. (a)) and admitted a gang
enhancement (§ 186.22, subd. (b)) as well as a firearm enhancement (§ 12022,
subd. (a)(1)). The parties stipulated to a determinate term of 20 years in
prison. Hamilton was sentenced in accordance with the plea agreement.
In 2019, Hamilton filed a petition for resentencing under
section 1170.95. The court appointed counsel and solicited briefing. After
reviewing the briefing and the record of conviction, the court found Hamilton
was statutorily ineligible for relief under section 1170.95 and denied the
petition.
Hamilton filed a timely notice of appeal.
Although Hamilton was not convicted of murder as required by
section 1170.95, he argues he must be eligible because he was originally
charged with murder on an aiding and abetting theory. He also contends
that if he is not given the benefit of the relief enacted by Senate Bill No. 1437,
that would violate the Equal Protection Clause of the Fourteenth
Amendment.
Hamilton candidly admits multiple courts of appeal have rejected his
arguments, but he contends that all the courts, including this court, simply
got it wrong, and the opinions should not be followed. We respectfully
disagree and will follow the unanimous precedent from several appellate
districts and reject Hamilton’s arguments.
STATEMENT OF FACTS
This appeal follows an earlier plea of guilty. The only factual
statements are taken from the probation officer’s report. The facts are well
summarized in the respondent’s brief. We include them here simply for
background information.
1 All further statutory references are to the Penal Code.
2
On the night of May 3, 2011, Hamilton and two of his co-defendants
were at Libby Park in Oceanside. One of the co-defendants, who was armed
with a firearm, walked over to where an Hispanic 16-year-old male and an
Hispanic 14-year-old female were sitting on a park bench. The co-defendant
asked the teens where they were from, and the male indicated he was not
from anywhere, just from Oceanside. The co-defendant then shot and killed
both teens. Hamilton and his co-defendants fled the park.
Hamilton’s cohorts were documented Deep Valley Crips gang members,
and Hamilton (aka “Little 187”) was also associated with the Deep Valley
Crips. The co-defendant who shot the teens had recently been “jumped” by
Hispanic gang members in the area, and Hamilton had also recently been
assaulted in Libby Park.
DISCUSSION
Senate Bill No. 1437 “was enacted ‘to amend 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.’ ”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez))
Section 1170.95 was created to permit defendants convicted of felony
murder or murder under a natural and probable consequences theory to file a
petition for resentencing to have the murder conviction vacated and to be
resentenced on any remaining counts. (§ 1170.95, subd. (a))
The beginning point of the analysis of Senate Bill No. 1437 is that the
defendant must have been convicted of murder or by plea in a case
prosecuted on a felony murder or natural consequences theory. (Martinez,
supra, 31 Cal.App.5th at p. 723.) In this case Hamilton was not convicted of
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murder, and his conviction did not arise from an offense where malice is an
element of the crime. Thus, Hamilton is not a person aggrieved by the former
methods of proving malice that the Legislature has now rejected.
The arguments that the statute applies to persons convicted of
manslaughter after being charged with murder or that failure to apply the
statute to manslaughter convictions would violate equal protection have been
soundly rejected by the courts of appeal, including the following cases:
(1) People v. Harris (2021) 60 Cal.App.5th 557, 565-571 [Fourth Appellate
District, Division Two]; (2) People v. Sanchez (2020) 48 Cal.App.5th 914, 916,
918-921 [Fourth Appellate District, Division Two]; (3) People v. Paige (2020)
51 Cal.App.5th 194, 197-198 [First Appellate District, Division Two];
(4) People v. Turner (2020) 45 Cal.App.5th 428, 435-439 (Turner) [Fourth
Appellate District, Division One]; (5) People v. Flores (2020) 44 Cal.App.5th
985, 992-997 [Fourth Appellate District, Division One]; and (6) People v.
Cervantes (2020) 44 Cal.App.5th 884, 887-888 [Second Appellate District,
Division Six].
We have reviewed the cases listed above, all of which have rejected all
of Hamilton’s arguments. We agree with the analysis in each of the cases.
In Turner, supra, 45 Cal.App.5th at pages 435 through 439, this court
analyzed the arguments that are now presented in this appeal. We carefully
considered the same arguments and found them to not be persuasive. We
continue to hold to the views we expressed in Turner. For the reasons set
forth in Turner, we once again hold that a person convicted by plea of
voluntary manslaughter is not eligible for resentencing under
section 1170.95. We further hold that denial of eligibility for relief to persons
convicted of voluntary manslaughter does not violate equal protection.
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DISPOSITION
The order denying Hamilton’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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