Filed 8/20/20 P. v. Bayless CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                                      E072472

 v.                                                                      (Super.Ct.No. FSB1201452)

 SHAWNA MARIE BAYLESS,                                                   OPINION

          Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Cynthia M. Jones, 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, and Charles C. Ragland, James H.




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Flaherty III, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and

Respondent.

                                   I. INTRODUCTION

      In 2013, defendant and appellant, Shawna Marie Bayless, pursuant to a plea

agreement, pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and

two counts of first degree residential robbery (§ 211) after several amendments to the

information. In 2019, defendant filed a petition for resentencing pursuant to then newly

enacted section 1170.95, which the trial court denied. Defendant appealed.

      On appeal, defendant argues that her petition was improperly denied because

section 1170.95 applies to defendants who pleaded guilty to voluntary manslaughter in

order to avoid a felony murder conviction. We affirm.

                 II. FACTUAL AND PROCEDURAL BACKGROUND2

      On the evening of April 2, 2012, defendant and her codefendant Gary Gallion met

her other codefendant, Laurie Cone. Laurie Cone was separated from her husband, the

victim, and was looking for someone to kill him in exchange for some of the victim’s

valuables. Cone gave Gallion a detailed layout of the victim’s home and provided

directions for entering the home. After this meeting, defendant dropped Gallion off “ ‘at

home’ ” near the victim’s residence. Gallion went to the victim’s home and was unable


      1   All further statutory references are to the Penal Code unless otherwise indicated.

      2   The facts of the underlying offense are taken from the report of the probation
officer. These facts have been abbreviated because they are not in dispute and are not at
issue in this appeal.

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to open a locked gate. Gallion then called defendant. Defendant, in turn, called Cone,

who told defendant how to open the locked gate. Defendant passed this information on to

Gallion. Shortly after, Cone called the police to report that she found the victim dead.

Police discovered the victim with his ankles and arms bound and severe blunt force

trauma to his head.

       On April 25, 2012, the San Bernardino County District Attorney charged

defendant via information with first degree murder (§ 187, subd. (a)), first degree

residential robbery (§ 211) and first degree residential burglary (§ 459). A subsequent

amended information alleged defendant aided and abetted the murder within the meaning

of section 190.2, subdivision (a)(17)(A) and (G) because she was acting as an accomplice

in the alleged robbery and residential burglary when the victim was killed. The

information also included identical charges against the two codefendants, with Cone

receiving an additional three counts of solicitation of murder.

       On February 7, 2013, pursuant to the plea agreement, the People added the charges

of voluntary manslaughter (§ 192, subd. (a)) and conspiracy to commit murder (§ 182,

subd. (a)(1)) to the information. Defendant thereafter pleaded guilty to voluntary

manslaughter (§ 192, subd. (a)), first degree residential robbery (§ 211), and conspiracy

to commit murder (§ 182, subd. (a)(1)). The factual basis for this plea was the

preliminary hearing transcript, which is not in the record. The plea agreement permitted

defendant to withdraw her plea to conspiracy to commit murder if she testified truthfully

at trial. Though the record is unclear, it appears she was allowed to withdraw her plea to



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conspiracy to commit murder at some point before sentencing. However, on May 1,

2013, at the sentencing hearing, the People orally added an additional charge of first

degree residential robbery (§ 211), to which defendant also pleaded guilty. Defendant

was sentenced to a total term of 13 years eight months in prison for one count of

voluntary manslaughter and two counts of first degree residential robbery.

       On January 24, 2019, defendant petitioned the trial court for resentencing pursuant

to then newly enacted section 1170.95. The trial court denied defendant’s petition on

March 29, 2019.

       Defendant timely appealed.

                                    III. DISCUSSION

       Defendant argues that the trial court improperly denied defendant’s petition for

resentencing because section 1170.95, which offers relief to those convicted of murder

under the old felony-murder rule, should be read to also offer relief to defendants who

pleaded guilty to voluntary manslaughter in order to avoid a conviction for felony

murder. In particular, defendant argues that the text and legislative history of

section 1170.95 indicates that the Legislature intended to offer relief to those who

pleaded guilty to voluntary manslaughter. In the alternative, defendant argues that the

statute is ambiguous, and that reading it in the way defendant suggests resolves this

ambiguity and avoids violating the equal protection afforded by the United States

Constitution. We disagree with each of defendant’s arguments.




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       A.     Requests for Judicial Notice

       As a preliminary matter, both parties have requested that this court take judicial

notice of certain documents. Defendant requests that we take judicial notice of the

opening brief filed with this court in an appeal involving her codefendants. The People

request that we take judicial notice of certain legislative history documents regarding the

debate, analysis, and passage of Senate Bill No. 1437 (Senate Bill 1437).

       We deny defendant’s request. A court may take judicial notice of the “[r]ecords

of . . . any court of this state,” and may certainly take notice of its own records. (Evid.

Code, § 452, subd. (d).) However, defendant only offers her codefendants’ opening brief

to provide some background about the factual basis for her plea. The arguments and

factual background provided in briefing is not evidence. Even if they were, or if we

augmented the record as defendant requests we do in the alternative, the factual basis for

defendant’s conviction is not relevant to deciding the issues before this court. It is

uncontested that defendant did not actually perpetrate any killing and that defendant was

charged with murder under a felony murder or natural and probable consequences theory.

Any further factual background is not necessary to resolve whether she may petition for

resentencing under section 1170.95. Finally, even if some factual background was

necessary to place defendant’s petition in context, the record already contains sufficient

factual information for those purposes in the form of the report of the probation officer.

       The People’s request for judicial notice is granted. A court may take judicial

notice of legislative history documents such as committee analyses, reports, and the



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historical texts of bills and statutes. (People v. Snyder (2000) 22 Cal.4th 304, 309, fn. 5;

People v. Ledesma (1997) 16 Cal.4th 90, 98, fn. 4; People v. Eubanks (1996) 14 Cal.4th

580, 591, fn. 3.) However, as discussed below, the legislative history of section 1170.95

is of limited utility given that we find it unnecessary to look further than the plain

meaning of the statute.

       B.     Section 1170.95 Does Not Provide Defendant with Relief

       Senate Bill 1437 “which became effective on January 1, 2019, addresses certain

aspects of California law regarding felony murder and the natural and probable

consequences doctrine by amending Penal Code sections 188 and 189, as well as by

adding Penal Code section 1170.95, which provides a procedure by which those

convicted of murder can seek retroactive relief if the changes in law would affect their

previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722.)

       Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted

a crime, the natural and probable consequence of which was murder or attempted murder,

could be convicted of not only the target crime but also of the resulting murder or

attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35

Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the defendant

harbored malice aforethought. Liability was imposed ‘ “for the criminal harms [the

defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’

[Citation.]” (R.G., at p. 144.)




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       Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of

murder, a principal must act with malice aforethought; malice can no longer ‘be imputed

to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”

(R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189,

which defines first and second degree murder, by, among other things, adding

subdivision (e). Under that subdivision, a participant in enumerated crimes is liable

under the felony-murder doctrine only if he or she was the actual killer; or, with the intent

to kill, aided and abetted the actual killer in commission of first degree murder; or was a

major participant in the underlying felony and acted with reckless indifference to human

life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749.)

       Senate Bill 1437 also added section 1170.95, which states that “[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.” (§ 1170.95,

subd. (a).) An offender may file a section 1170.95 petition if he or she was prosecuted

under a felony murder or natural and probable consequences theory, but under amended

sections 188 or 189, could not have been convicted of first or second degree murder.

(§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is

eligible for and entitled to relief, the trial court must conduct a hearing to determine

whether to vacate the murder conviction and to recall the sentence and resentence the

petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1).)



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       “This appeal requires us to determine whether section 1170.95 permits persons

who were convicted of voluntary manslaughter to have their convictions vacated and to

be resentenced.” (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores).) “Statutory

interpretation is ‘an issue of law, which we review de novo.’ ” (Union of Medical

Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183.) When

engaging in statutory construction “ ‘[i]f the language is clear, courts must generally

follow its plain meaning unless a literal interpretation would result in absurd

consequences the Legislature did not intend.’ [Citation.] But, ‘[i]f the statutory language

permits more than one reasonable interpretation, courts may consider other aids, such as

the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Flores, supra,

44 Cal.App.5th at p. 992.)

       Following these principles, several recently decided cases have addressed each of

defendant’s arguments. Indeed, in Flores, supra, 44 Cal.App.5th 985, Division 1 of this

Court addressed a nearly identical appeal. In that case the defendant “was charged with

murder, but pleaded guilty to the lesser included offense of voluntary manslaughter.

Years later, she filed a petition to have her conviction vacated and to be resentenced

under the resentencing provision of Senate Bill No. 1437. The trial court denied Flores’s

petition on grounds that the resentencing provision is available only to qualifying persons

who were convicted of murder—not persons who were convicted of voluntary

manslaughter.” (Id. at p. 989.)




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       After discussing the history of section 1170.95, the court turned to the plain

language of the statute as passed. The court noted that “[b]y its terms, section 1170.95

authorizes only a person who was ‘convicted of felony murder or murder under a natural

and probable consequences theory [to] file a petition with the court that sentenced the

petitioner to have the petitioner’s murder conviction vacated . . . .’ ” (Flores, supra, 44

Cal.App.5th at pp. 992-993.) As the court reasoned, “[t]hrough its repeated and exclusive

references to murder, the plain language of section 1170.95 limits relief only to

qualifying persons who were convicted of murder. Section 1170.95 does not mention,

and thus does not provide relief to, persons convicted of manslaughter . . . .” (Flores, at

p. 993.)

       Nevertheless, defendant here argues that though the statute’s initial language only

mentions those convicted of murder, subdivision (a)(2) states that in order to qualify for

relief a petitioner must have been “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.” (§ 1170.95, subd. (a)(2).)

Defendant argues that this language “creates a contextual ambiguity that indicates the

statute should be read as applying to plea agreements for other crimes entered into in lieu

of a murder conviction.”

       However, the court in Flores specifically rejected a similar argument, stating that

this “interpretation of section 1170.95 . . . places outsized importance on a single clause

to the exclusion of the provision’s other language,” which “violates well-settled rules of



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construction, which caution that we must not ‘consider the statutory words in isolation;

we must read the language as it is placed in the code section, and in the context of the

entire statutory scheme.’ [Citation.]” (Flores, supra, 44 Cal.App.5th at p. 995.)

Moreover, the court noted that this clause does not necessarily create any ambiguity, as

“criminal defendants can, and do, plead guilty to the crime of murder,” for a variety of

reasons, including simply to avoid the public embarrassment, financial cost, and

emotional turmoil of a trial. (Ibid.) There is therefore no ambiguity or contradiction in

restricting the application of the statute to petitioners who were convicted of murder after

trial or pleaded guilty to murder to avoid trial and excluding those who pleaded to lesser

offenses to avoid trial.

       Defendant argues that this interpretation raises issues of equal protection. At least

one court has already considered and rejected this argument. (See People v. Cervantes

(2020) 44 Cal.App.5th 884, 888 (Cervantes).) As that court reasoned, “[t]he first step in

an equal protection analysis is to determine whether the defendant is similarly situated

with those who are entitled to the statutory benefit. [Citation.] [Defendant] was

convicted of voluntary manslaughter, a different crime from murder, which carries a

different punishment. Normally ‘offenders who commit different crimes are not similarly

situated’ for equal protection purposes.” (Ibid.) Section 1170.95 therefore presents no

equal protection issue by treating those convicted of murder under the felony-murder rule

different from those who pleaded to voluntary manslaughter in order to avoid a trial for

murder.



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       Nor does interpreting section 1170.95 to exclude those convicted of voluntary

manslaughter undermine the legislature’s goals. “When the Legislature reforms one area

of the law, it is not required to reform other areas of the law.” (Cervantes, supra, 44

Cal.App.5th at p. 888.) “Here the legislative focus was centered on the unfairness of the

felony murder rule. The Legislature could rationally decide to change the law in this area

and not be currently concerned with crimes not involved with that rule. [Citation.] It

also could reasonably decide that the punishment for voluntary manslaughter was

appropriate, but the punishment for murder based on the felony murder rule could be

excessive and reform was needed only there.” (Ibid.) “[T]he Legislature is afforded

considerable latitude in defining and setting the consequences of criminal offenses,”

(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887) and “[c]ourts routinely

decline to intrude upon the ‘broad discretion’ such policy judgments entail.” (People v.

Turnage (2012) 55 Cal.4th 62, 74.)

       There is little doubt that this interpretation has the potential to present some

incongruous outcomes. Indeed, “we acknowledge that in hindsight, [defendant] would

have fared better by pleading guilty to murder. Because [her] liability would have been

premised on [the] killing being a natural, probable, and foreseeable consequence of [her]

participation . . . [s]he could have petitioned for relief under section 1170.95. Instead

[s]he pleaded guilty to voluntary manslaughter, in the process admitting every element of

that offense.” (People v. Turner (2020) 45 Cal.App.5th 428, 439 (Turner).) We also

acknowledge, as the court in Turner did, that “ ‘neither felony-murder nor the natural and



                                             11
probable consequences doctrine are theories on which one can commit voluntary

manslaughter.’ ” (Ibid.; see (People v. Price (2017) 8 Cal.App.5th 409, 430.) Thus,

“[b]y admitting voluntary manslaughter, [defendant] seems worse off for pleading guilty

to a crime [s]he likely could not have committed.” (Turner, at p. 440.)

       We also agree with the court in Turner that “[i]f there is a problem, it may lie in

the adequacy of the factual basis for [defendant]’s plea. . . . Whatever method employed,

a bare statement that a factual basis exists, without inquiry, is inadequate.” (Turner,

supra, 45 Cal.App.5th at p 440.) Because the factual basis for defendant’s plea is not in

the record, and that issue is not before us, we do not address it further. However, we

echo our colleagues’ sentiment that trial courts must diligently inquire into the factual

basis of a plea to protect against “ ‘an especially high risk the defendant will plead to a

crime he or she did not commit and for which no factual basis can be established,’ ”

given “ ‘ “the disparity in punishment between conviction by plea and conviction at

trial.” ’ ” (Ibid.)

       For that reason, we also echo our colleagues in Division 1 in expressing our

sympathy with defendant’s “perception that [s]he is in custody ‘for a crime [s]he did not

commit’ . . . .” (Turner, supra, 45 Cal.App.5th at p. 440.) However, it must be

remembered that defendant received the full benefit of her plea agreement. At the time of

her plea, she faced a murder conviction with all of its attendant consequences. Hindsight

based upon an unforeseen change in the law does not change that fact.

       We conclude section 1170.95 does not provide defendant an avenue for relief.



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                                 IV. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                   FIELDS
                                                            J.
We concur:


RAMIREZ
                    P. J.


RAPHAEL
                       J.




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