People v. Tuvalu CA2/3 ( 2021 )

Filed 1/14/21 P. v. Tuvalu CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304159
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA103060
v.
YUTI ALBERT TUVALU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Jonathan E. Demson, 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 Ragland, Lynne G. McGinnis and
Laura Baggett, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Defendant and appellant Yuti Albert Tuvalu appeals
from the superior court’s summary denial of his petition for
resentencing under Penal Code section 1170.95.1 We affirm.
FACTS AND PROCEDURAL BACKGROUND
The record on appeal is sparse. In 2008, the People
charged Tuvalu with the murder of Christopher Woods.
In an amended complaint, the People charged two additional
defendants—Francisco Vicente Navarette and Jesus Garcia—
with Woods’s murder as well. The People alleged the defendants
committed the crime for the benefit of, at the direction of, or
in association with a criminal street gang. The People alleged
each of the three defendants personally and intentionally
discharged a firearm causing Woods’s death, and that a principal
did so as well. The People alleged three additional counts
against Navarette, for carrying a loaded firearm.
According to the probation department report,2 on
October 3, 2008, officers were called to an address in Carson.
They found the semi-conscious victim, moaning. The victim was
taken to the hospital, where he was pronounced dead. Witnesses
told the police Tuvalu got into an argument with Woods after
Woods inadvertently turned off a living room light by leaning
against the switch on the wall. Tuvalu approached Woods
“and punched him twice in the face, knocking him to the ground.”
Navarette and Garcia then “joined in the beating and began
kicking and hitting [Woods] while he was on his knees and curled
up against the living room sofa.” Someone turned the lights off;
then witnesses heard one or two shots. Tuvalu, Navarette,
1 References to statutes are to the Penal Code.
2 As the case apparently settled before the preliminary
hearing, we take the facts from the probation department report.
2
and Garcia ran out the front door. One witness told police he’d
seen Tuvalu with a long-barreled .357 magnum and a .22 caliber
handgun.
Tuvalu apparently reached a plea agreement with the
prosecution in which the prosecution added a count for voluntary
manslaughter and Tuvalu pleaded guilty to that charge.3 On
October 13, 2009, the trial court sentenced Tuvalu to 26 years
in the state prison. Presumably in accordance with the plea
agreement, the court chose the midterm of six years, plus
ten years for the gang enhancement under section 186.22,
subdivision (b)(1)(C), plus ten years for the firearm enhancement
under section 12022.5. The court dismissed the murder charge
“due to plea negotiation.”
On January 3, 2019, Tuvalu—represented by counsel—
filed a “Verified Petition for Resentencing,” citing section
1170.95. Tuvalu stated “[a] complaint . . . was filed against [him]
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine,” and he “pled guilty to voluntary manslaughter in lieu
of going to trial the avoid the possibility of a conviction of felony
murder.” Tuvalu didn’t identify the “felony” that purportedly
formed the basis for any felony murder theory by the prosecution.
Tuvalu’s petition stated he “could not now have been convicted
of murder [sic] because of the changes made to PC § 188 & 189
by Senate Bill 1437.”
On January 28, 2019, the trial court summarily denied
Tuvalu’s petition. The court found, “Pursuant to Penal Code
3 The Clerk’s Transcript contains a minute order of the
sentencing but not of the change of plea itself. Nor is there
a Reporter’s Transcript on appeal of any of the proceedings
in the trial court.
3
section 1170.95(a) the petitioner was not convicted of felony
murder or murder under a natural and probable consequences
theory and thus does not qualify for resentencing pursuant to
this section.”
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (SB 1437)
amended murder liability under the felony murder and natural
and probable consequences theories. Adding section 1170.95
to the Penal Code, the Legislature created a new petitioning
procedure for eligible defendants to have their murder
convictions vacated and to seek resentencing on any remaining
counts. (People v. Turner (2020) 45 Cal.App.5th 428, 433-434.)
Subdivision (a) of section 1170.95 allows “[a] person convicted
of felony murder or murder under a natural and probable
consequences theory” to file a petition “to have [his] murder
conviction vacated.” (Italics added.) Likewise, section 1170.95,
subdivision (d) defines the available relief as the vacating of
a “murder conviction.” (Italics added; Turner, at p. 435.)
Based on the clear language of the statute, California
appellate courts have concluded section 1170.95 is unambiguous
and does not provide relief to individuals convicted of
manslaughter. (People v. Turner, supra, 45 Cal.App.5th at
pp. 435-436, 438 [defendant charged with murder who pleaded
to voluntary manslaughter not entitled to relief under SB 1437];
People v. Paige (2020) 51 Cal.App.5th 194, 201, 204 [same];
People v. Sanchez (2020) 48 Cal.App.5th 914, 916 [same];
People v. Flores (2020) 44 Cal.App.5th 985, 989, 997 [same];
People v. Cervantes (2020) 44 Cal.App.5th 884, 886 [same].)
Our Supreme Court has denied review in every one of these
cases. (People v. Turner, review den. May 13, 2020, S261425;
People v. Paige, review den. Sept. 9, 2020, S263571; People v.
Sanchez, review den. July 15, 2020, S262656; People v. Flores,
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review den. Apr. 29, 2020, S261252; People v. Cervantes, review
den. Apr. 15, 2020, S260440.)
The trial court did not err in denying Tuvalu’s petition
for resentencing.
DISPOSITION
We affirm the trial court’s order denying Yuti Albert
Tuvalu’s petition for resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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