People v. Duarte CA2/7 ( 2022 )

Filed 1/19/22 P. v. Duarte CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B311993
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA067568)
v.
MARIA DUARTE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Mike Camacho, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Charles S. Lee, Daniel C. Chang and
David W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Maria Duarte pleaded guilty in 2005 to two counts of
attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and
admitted criminal street gang (§ 186.22, subd. (b)(1)) and firearm
enhancement allegations (§ 12022.53, subds. (b) & (e)). On
March 1, 2021 the superior court summarily denied Duarte’s
petition for resentencing under section 1170.95, ruling Duarte
was ineligible for relief because she had been convicted of
attempted murder, not murder.
While Duarte’s appeal was pending, the Legislature
enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which
amended section 1170.95 to expressly include within its reach
certain convictions for attempted murder and voluntary
manslaughter. In light of this new legislation, we remand
Duarte’s case for the superior court to permit Duarte to amend
her petition and, following amendment, to appoint counsel for
Duarte and to determine in accordance with the procedures
described in section 1170.95, subdivision (c), and People v. Lewis
(2021) 11 Cal.5th 952 (Lewis) whether Duarte has made a
prima facie showing she is entitled to relief.
FACTUAL AND PROCEDURAL BACKGROUND
1. Duarte’s Convictions for Attempted Murder
According to testimony at Duarte’s preliminary hearing
and admissions by Duarte at her plea hearing, Duarte drove a
1 Statutory references are to this code.
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member of the Happy Town criminal street gang and another
man to Academy Avenue in Pomona. The men were sitting in the
front and back passenger seats of Duarte’s vehicle. With the
windows down, the men shot at, and wounded, several teenagers
who had been riding a motor scooter outside a nearby residence.
Duarte pleaded guilty to two counts of attempted murder
and admitted firearm and criminal street gang enhancements to
both counts. Pursuant to the terms of a negotiated agreement,
Duarte waived her right to appeal and was sentenced to an
aggregate state prison term of 22 years eight months.
2. Duarte’s Petition for Resentencing
On December 31, 2020 Duarte, representing herself, filed a
petition for resentencing pursuant to section 1170.95 and
requested the court appoint counsel to represent her in the
resentencing proceedings. On the printed form petition Duarte
checked boxes stating a complaint had been filed against her that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine and she could not now be convicted of first or second
degree murder because of changes to sections 188 and 189 by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), but did not check the box stating she
had pleaded guilty or no contest to first or second degree murder
in lieu of going to trial. Duarte’s petition did not indicate she had
been convicted of attempted murder.
The superior court summarily denied the petition on
March 1, 2021 without appointing counsel or requesting a
response to the petition from the prosecutor. The court’s minute
order stated, “Convicted violation being to attempted murder and
not murder makes petition ineligible by law.”
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DISCUSSION
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see Lewis, supra, 11 Cal.5th at
p. 957.) It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Lewis, at p. 957; Gentile, at p. 843.)
There was disagreement among the courts of appeal
whether new section 188, subdivision (a)(3)’s prohibition against
imputing malice to establish liability for murder other than in
specified felony-murder cases also precluded finding a defendant
guilty of attempted murder under the natural and probable
consequences doctrine. Notwithstanding that conflict, all courts
of appeal recognized that, by its express terms, section 1170.95 as
enacted by Senate Bill 1437 did not authorize a petition to vacate
an attempted murder conviction.
As amended effective January 1, 2022 by Senate Bill 775,
however, section 1170.95, subdivision (a), now provides, “A
person convicted of felony murder or murder under the natural
and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and
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probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining
counts . . . .” (Italics added.)2
In her reply brief Duarte argues, with the passage of
Senate Bill 775, the order summarily denying her petition for
resentencing should be reversed and the cause remanded with
directions to the superior court to appoint counsel and to
thereafter reconsider her petition consistent with the provisions
of section 1170.95 as newly amended.3 In a supplemental letter
2 In an uncodified statement of its intent in enacting Senate
Bill 775, the Legislature declared the legislation “(a) Clarifies that
persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories. [¶]
(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952,
961-970, regarding petitioners’ right to counsel and the standard for
determining the existence of a prima facie case. [¶] (c) Reaffirms
that the proper burden of proof at a resentencing hearing under this
section is proof beyond a reasonable doubt. [¶] (d) Addresses what
evidence a court may consider at a resentencing hearing (clarifying
the discussion in People v. Lewis, supra, at pp. 970-972).” (Stats.
2021, ch. 551, § 1.)
3 In her opening brief Duarte argued the superior court’s
summary denial of her petition without appointment of counsel
violated the plain language of section 1170.95, subdivision (c), as
well as her right to due process. She also argued Senate
Bill 1437 applied to accomplice liability for attempted murder,
not just murder, and the contrary interpretation of the legislation
would violate her right to equal protection. The Attorney
General in his respondent’s brief argued any error in not
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brief filed at the request of this court, the Attorney General has
agreed with Duarte’s recommendation, observing that the record
on appeal “does not establish whether her convictions were
necessarily based on an actual malice. [Citations.] Accordingly,
she may be able to establish a prima facie showing of eligibility.”
We agree with the request for a remand as well.
DISPOSITION
The postjudgment order denying Duarte’s section 1170.95
petition is reversed. On remand the superior court is to permit
Duarte to amend her petition to identify her convictions for
attempted murder, appoint counsel for Duarte, order the
prosecutor to file a response to the petition and provide Duarte
an opportunity to file a reply, and determine whether Duarte has
made a prima facie showing that she is entitled to relief in
accordance with section 1170.95, subdivision (c), as amended by
Senate Bill 775.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
appointing counsel was harmless because Duarte was ineligible
for relief as a matter of law and excluding individuals convicted
of attempted murder from Senate Bill 1437’s ameliorative
provisions was constitutional.
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