People v. Twyman CA2/8 ( 2021 )

Filed 4/7/21 P. v. Twyman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304515, B306643
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139642)
v.
ANTHONY DAWAYNE
TWYMAN,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Pat Connolly, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Beccera, Attorney General, Lance E. Winters, Chief
Asssitant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant appeals the denial of his petitions for
resentencing pursuant to Penal Code section 1170.95.12 Because
we find appellant entered a plea to attempted murder, which is
not named as a conviction within the remedial provisions of
section 1170.95, we affirm.
On September 29, 2017, appellant Anthony Dawayne
Twyman entered a plea to attempted murder and other
sentencing enhancements. The trial court sentenced him to
20 years imprisonment.
On October 17, 2019, appellant filed a petition for
resentencing pursuant to section 1170.95. Without appointing
counsel, the trial court summarily denied the petition, finding
appellant ineligible for relief because he was “not convicted of
murder.”
Twyman filed a timely notice of appeal. He argues the trial
court’s summary denial of his petition without appointing counsel
violated not only the clear language of the statute, but also his
state and federal constitutional rights to due process and the
assistance of counsel.
Section 1170.95 allows defendants who have been convicted
of murder under the theory of felony murder or the doctrine of
natural and probable consequences to petition the trial court to
vacate such convictions and resentence them. Section 1170.95
has been the subject of numerous appellate decisions from around
1 All undesignated statutory references are to the Penal
Code.
2 Appellant filed two notices of appeal from the denial of two
resentencing petitions he filed. We ordered the appeals
consolidated. This disposition addresses all issues raised by the
denials of the two petitions.
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the state. In particular, the timing of appointment of counsel and
the eligibility of petitioners convicted of attempted murder,
rather than murder, have been expressly considered. Both issues
are currently before our Supreme Court. (People v. Lewis (2020)
43 Cal.App.5th 1128, 1139–1140 [trial court may deny petition
without appointing counsel where the petition shows ineligibility
for relief as a matter of law], review granted Mar. 18, 2020,
S260598; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104–1105
[attempted murder convictions are excluded from relief under the
statute], review granted Nov. 13, 2019, S258175; see also People
v. Dennis (2020) 47 Cal.App.5th 838, 841 [same], review granted
July 29, 2020, S262184; People v. Alaybue (2020) 51 Cal.App.5th
207, 222–223 [same].
We agree with the court in People v. Lopez that the plain
language of section 1170.95 and its legislative history limit
eligibility for resentencing to convictions of murder, not
attempted murder, and that the limitation does not violate
equal protection. (People v. Lopez, supra, 38 Cal.App.5th at
pp. 1104–1105, 1112; see also People v. Munoz (2020)
39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234.)
We also agree with the court in People v. Lewis that the trial
court may find a petitioner ineligible for resentencing under the
statute, as a matter of law, without first appointing counsel.
(People v. Lewis, supra, 43 Cal.App.5th at pp. 1139–1140; see also
People v. Verdugo (2020) 44 Cal.App.5th 320, 332–333 [same],
review granted Mar. 18, 2020, S260493.)
Finally, we disagree that appellant’s Sixth Amendment
right to the assistance of counsel is violated by our interpretation
of section 1170.95. A section 1170.95 proceeding is a collateral
sentence modification unrelated to the criminal trial process. It
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is an “act of lenity intended to give prisoners the benefit of later
enacted adjustments to the judgments.” (Dillon v. United States
(2010) 560 U.S. 817, 828 [no Sixth Amendment right to jury trial
in statutory proceeding to modify sentence because the statute
constituted an act of lenity].)
Similarly, we disagree with appellant that his
constitutional right to due process protection against the
arbitrary deprivation of state-created rights is at issue. Because
we find that there is no state-created right to assistance of
counsel for petitioners, like appellant, who are ineligible for relief
as a matter of law, there is no due process violation.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P.J.
WILEY, J.
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