Filed 8/28/20 P. v. Davila CA2/5

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                         SECOND APPELLATE DISTRICT


                                        DIVISION FIVE



 THE PEOPLE,                                                        B298856

           Plaintiff and Respondent,                                (Los Angeles County
                                                                    Super. Ct. No. KA090972)
           v.

 GILBERT DAVILA,

           Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, Salvatore Sirna, Judge. Affirmed.
      Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
                  ___________________________
       Defendant and appellant Gilbert Davila was convicted of
two counts of attempted premeditated murder. His conviction
was affirmed on direct appeal. Seven years later, he filed a
petition for resentencing under newly-enacted Penal Code section
1170.95.1 The trial court summarily denied the petition on the
basis that section 1170.95 provides relief only for defendants
convicted of murder, not attempted murder. We affirm.
        FACTUAL AND PROCEDURAL BACKGROUND
1.     Underlying Facts2
       The attempted murders in this case were an act of gang
retaliation against a gang associate who was perceived to have
failed to do his duty for the gang.
       When El Monte Flores gang member Gilbert Lopez and
gang associate Jonathan Temores3 were in gang territory,
someone seriously assaulted Lopez, who ultimately died of his
injuries. Jonathan had not come to Lopez’s aid, a fact which,
according to gang culture, required punishment.
       Three El Monte Flores gang members – defendant and his
two codefendants, Saul Gutierrez and Miguel Suarez – went to


1       All undesignated statutory references are to the Penal
Code.

2     Our discussion of the facts is taken from the opinion in
defendant’s appeal from his conviction. (People v. Davila (May 3,
2013, B239117) [nonpub. opn.] [2013 WL 1874740].) We granted
defendant’s request for judicial notice of that opinion.

3      Defendants ultimately assaulted two of Jonathan
Temores’s family members, each of whom shared his last name.
For this reason, we refer to the Temores family members by their
first names alone.



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Jonathan’s apartment to discipline him. They knocked on the
door, asking for Jonathan by name. He was not home; his
brother Jose answered the door. The three defendants assaulted
Jose with their fists and a knife. Jonathan and Jose’s uncle Felix
came to Jose’s aid; the three defendants assaulted him as well.
Eventually Jose and Felix crawled back into the apartment and,
with the help of other family members, closed the door on the
three assailants. Jose and Felix both suffered multiple stab
wounds which required hospitalization. The evidence indicated
that defendant and codefendant Gutierrez had assaulted Jose
while codefendant Suarez had assaulted Felix. Both Jose and
another family member who had been in the apartment knew
defendant from before the attack and identified him. Jose
specifically identified defendant as having stabbed him.
      Defendant and his codefendants were charged by
information with two counts of attempted premeditated murder
(§§ 664/187), and tried together. As to defendant, multiple
sentencing enhancements were originally alleged. The court
struck several, and the following enhancement allegations were
submitted to the jury: that defendant personally inflicted great
bodily injury on victim Jose (§ 12022.7, subd. (a)); and that
defendant committed both attempted murders for the benefit of a
gang (§ 186.22, subd. (b)(1)(C)). The jury found defendant guilty
of both counts, and the enhancement allegations true. Defendant
was sentenced to prison for 33 years to life, calculated as two
consecutive terms of 15 years to life for the two attempted
premeditated murders, plus an additional 3 years for the great
bodily injury enhancement.




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2.     Defendant’s Appeal
       On appeal, defendant’s conviction was affirmed, although
there was a slight modification of his presentence credits.
Defendant argued there was insufficient evidence to support his
conviction; we rejected the argument, noting that he was guilty
both as a direct perpetrator as to Jose and as an aider and
abettor under the natural and probable consequences doctrine as
to Felix. (People v. Davila, supra, B239117 [2013 WL 1874740,
*5-*6].)
3.     Defendant’s Resentencing Petition
       In 2018, the Legislature adopted Senate Bill No. (SB) 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) which, among other
things, “significantly restricted potential aider and abettor
liability, as well as coconspirator liability, for murder under the
natural and probable consequences doctrine.” (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019,
S258175.) In addition, SB 1437 enacted a new statutory
procedure, codified in section 1170.95, by which a defendant
convicted of murder under the natural and probable
consequences doctrine could seek resentencing under the new,
narrower version of the law.
       On March 8, 2019, defendant, without assistance of
counsel, filed a petition for resentencing under newly-enacted
section 1170.95. He used a form petition which had been created
for defendants who were convicted of murder and believed they
were entitled to relief under section 1170.95. Because defendant
was not convicted of murder, but instead of attempted murder, he
interlineated “attempted” at one point in the petition. In other
places, he simply checked the boxes asserting, incorrectly, that he




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had been convicted of murder. He requested the assistance of
counsel.
       On April 24, 2019, without a hearing or appointment of
counsel, the trial court summarily denied defendant’s petition on
two bases: (1) that defendant was ineligible for relief as he had
been convicted of attempted murder, not murder; and (2) that SB
1437 was unconstitutional. Defendant filed a timely notice of
appeal.
                             DISCUSSION
       On appeal, defendant contends his petition should have not
been summarily denied. He argues: (1) SB 1437 should be
extended to attempted murder; (2) the court should not have
denied the petition without appointment of counsel; and (3) SB
1437 is constitutional. The Attorney General concedes that SB
1437 is constitutional,4 but disagrees with defendant’s remaining
arguments.
1.     Section 1170.95 Does Not Apply To Defendants
       Convicted of Attempted Murder
       SB 1437 “ ‘ “amend[s] 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).)’ [Citation.]” (People v. Torres (2020)
46 Cal.App.5th 1168, 1173, review granted June 24, 2020,
S262011.) A defendant who has previously been convicted of
murder, but would no longer be subject to murder liability under

4     The concession is appropriate. (See, e.g., People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 275.)



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the law as amended by SB 1437, may seek resentencing pursuant
to the procedure established by section 1170.95. If the defendant
prevails, and had been charged with murder “generically, and the
target offense was not charged, the petitioner’s conviction shall
be redesignated as the target offense or underlying felony for
resentencing purposes.” (§ 1170.95, subd. (e).)
       As to eligibility, section 1170.95 provides, in pertinent part:
“(a) A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
[¶] (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 doctrine. [¶] (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 could not be convicted of first or second degree
murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019.”
       Once a petition is filed, there follows a multi-step process
by which the court determines whether the petition is facially
sufficient, and, if so, whether the petitioner has made a prima
facie showing that he falls within the provisions of statutory
eligibility. (People v. Torres, supra, 46 Cal.App.5th at p. 1177.) If
the court determines the petitioner is ineligible for relief as a
matter of law, the petition is denied; if not, the court proceeds to
the next step. (Id. at p. 1178.) Here, the trial court denied the




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petition on the basis that defendant was ineligible as a matter of
law, because he was not convicted of murder. Defendant does not
dispute he was convicted of attempted murder.
       The trial court’s order was indisputably correct. Our
research has disclosed seven published opinions that address
whether SB 1437 and section 1170.95 apply to attempted murder.
Although there is a disagreement as to whether some of SB
1437’s substantive changes to the law of felony murder and
natural and probable consequences apply to attempted murder
convictions in cases still on direct appeal, all the authorities
agree that the remedy provided by section 1170.95 is not
available to defendants convicted of attempted murder. For
example, in People v. Lopez, supra, 38 Cal.App.5th 1087, Division
Seven of the Second Appellate District concluded SB 1437 does
not apply to attempted murder, because its statutory language is
limited to murder. (Lopez, at pp. 1104−1105; see also People v.
Alaybue (2020) 51 Cal.App.5th 207, ___ [264 Cal.Rptr.3d 876,
889–891]; People v. Dennis (2020) 47 Cal.App.5th 838, 844,
review granted July 29, 2020, S262184; People v. Munoz (2019)
39 Cal.App.5th 738, 754−755, review granted November 26, 2019,
S258234.)
       A series of three cases, all from the Fifth Appellate District,
take a different view but one ultimately not relevant to the
present appeal. Those cases interpret SB 1437 as abrogating the
natural and probable consequences doctrine as a theory of
accomplice liability for attempted murder, but only if raised by
direct appeal from the underlying judgment, not by way of a
section 1170.95 petition. (People v. Sanchez (2020)
46 Cal.App.5th 637, 642−643, review granted June 10, 2020,
S261768; People v. Medrano (2019) 42 Cal.App.5th 1001,




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1016−1018, review granted March 11, 2020, S259948; People v.
Larios (2019) 42 Cal.App.5th 956, 969−970, review granted
February 26, 2020, S259983.) The dispute over whether SB 1437
applies to attempted murder cases on direct appeal will be
resolved by our Supreme Court, but it is not relevant to the
present appeal. All of the courts are in agreement that the
remedy provided by section 1170.95 for defendants whose
convictions have already become final applies only to defendants
convicted of murder, not attempted murder.
       A brief reference to 1170.95 proves the point as a matter of
semantics. Section 1170.95 – in words as plain as can be –
applies only to murder convictions: “A person convicted of felony
murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction
vacated . . . .” (§ 1170.95, subd. (a), italics added.) (See People v.
Medrano, supra, 42 Cal.App.5th at pp. 1016−1018; People v.
Larios, supra, 42 Cal.App.5th at pp. 969−970; People v. Munoz,
supra, 39 Cal.App.5th at p. 754; People v. Lopez, supra,
38 Cal.App.5th at pp. 1104−1105.)5

5      In his opening brief, defendant recognizes the cases are in
agreement on this point, but he responds only, “Appellant
disagrees.” In his reply brief, defendant expounds on this
slightly, stating that he “urges this Court of Appeal to reconsider
its position and to hold that the Legislature intended for section
1170.95 to apply to attempted murder convictions, that excluding
persons convicted of attempted murder from obtaining relief
under section 1170.95 violates federal and state equal protection,
and that the Legislature necessarily intended to eliminate the
natural and probable consequences theory of liability as a means
of proving attempted murder.” The argument that follows,




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2.     Defendant’s Right to Counsel Argument is No Longer
       Viable
       In defendant’s opening brief, he argues at length that the
court erred in denying his section 1170.95 petition without first
appointing counsel. In his reply brief, he states that he “stands
by” that argument “assuming Penal Code section 1170.95
provides relief to attempted murderers convicted under the
natural and probable consequences doctrine.” As we have
concluded section 1170.95 does not apply to defendants convicted
of attempted murder, defendant’s assumption for his right-to-
counsel argument disappears. We need not address it further.
                         DISPOSITION
       The order denying defendant’s section 1170.95 resentencing
petition is affirmed.




                                         RUBIN, P. J.
WE CONCUR:




           BAKER, J.




           MOOR, J.


however, is that SB 1437 should be interpreted to reach
attempted murder; defendant does not address the language of
section 1170.95 at all.



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