Filed 8/26/20 P. v. Pelaez CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


 THE PEOPLE,                                                      B303650

           Plaintiff and Respondent,                              (Los Angeles County
                                                                  Super. Ct. No. GA077659)
           v.

 MARIA JESUS PELAEZ,

           Defendant and Appellant.




      APPEAL from an order of the Superior Court of Los
Angeles County, Dorothy L. Shubin, 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, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
                     ______________________
     Appellant Maria Jesus Pelaez challenges the trial court’s
summary denial of her Penal Code section 1170.951 petition for
resentencing relating to a conviction for voluntary manslaughter.
We affirm the trial court’s denial.

                         BACKGROUND
       The information charged Pelaez with murder (§ 187,
subd. (a)), torture (§ 206), and assault on a child causing death
(§ 273a, subd. (b).) As part of a plea agreement, these charges
were dismissed, and Pelaez pleaded no contest to voluntary
manslaughter (§ 192, subd. (a)) and two counts of child
endangerment (§ 273a, subd. (a)) and admitted to death-of-the-
victim enhancement allegations (§ 12022.95). The trial court
sentenced Pelaez to 11 years for manslaughter plus 10 years and
8 months on the other counts and enhancements, for a total
sentence of 21 years and 8 months.
       On December 5, 2019, Pelaez filed a petition for
resentencing pursuant to section 1170.95, in which she requested
counsel. On December 11, 2019, the trial court summarily denied
the petition without appointing counsel or scheduling any
briefing on the grounds that Pelaez was ineligible for
resentencing because she was convicted of voluntary
manslaughter, not murder. Pelaez timely filed a notice of appeal
from the denial of her section 1170.95 petition.




     1   All unspecified statutory references are to the Penal Code.




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                         DISCUSSION
A.     A Defendant Convicted of Voluntary Manslaughter Is
       Not Eligible for Section 1170.95 Resentencing Relief
       Pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.),
the Legislature enacted section 1170.95, which permits “[a]
person 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 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 Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a), italics added.)
       Pelaez contends the trial court erred in summarily denying
her section 1170.95 petition on the basis that she was convicted
of voluntary manslaughter and not murder. Pelaez argues
section 1170.95, subdivision (a)’s condition that the petitioner
“accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder,”
suggests section 1170.95 applies to persons charged with first or
second degree murder, but who accepted a plea of a lesser charge,
such as manslaughter. She also argues that interpreting section
1170.95 to not extend to voluntary manslaughter is inconsistent




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with the intent of the Legislature, would produce absurd
consequences, and violates her constitutional rights to due
process and equal protection.
       Each of these arguments has already been considered and
rejected in a number of well-reasoned appellate opinions. (People
v. Paige (2020) 51 Cal.App.5th 194 [holding § 1170.95 does not
apply to persons charged with murder but who plead guilty to
voluntary manslaughter; and rejecting the appellant’s arguments
that such an interpretation is inconsistent with the legislative
purpose, produces absurd consequences, or violates equal
protection]; People v. Sanchez (2020) 48 Cal.App.5th 914 [holding
§ 1170.95 does not apply to persons charged with murder but who
plead guilty to voluntary manslaughter; and rejecting the
appellant’s arguments that such an interpretation produces
absurd consequences or violates equal protection]; People v.
Turner (2020) 45 Cal.App.5th 428 [holding § 1170.95 does not
apply to persons charged with murder but who plead guilty to
voluntary manslaughter; and rejecting the appellant’s arguments
that such an interpretation is inconsistent with the legislative
purpose or produces absurd consequences]; People v. Flores (2020)
44 Cal.App.5th 985 [holding § 1170.95 does not apply to persons
charged with murder but who plead guilty to voluntary
manslaughter; and rejecting the appellant’s arguments that such
an interpretation produces absurd results]; People v. Cervantes
(2020) 44 Cal.App.5th 884 [holding § 1170.95 does not apply to
persons charged who plead guilty to voluntary manslaughter; and
rejecting the appellant’s arguments that such an interpretation
violates constitutional rights to equal protection or due process].)
We have found no contrary authority.




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      Pelaez argues that Cervantes, Flores, and Turner are
wrongly decided, overly simplistic, and unpersuasive. However,
with one exception discussed below, Pelaez does not raise any
new arguments that were not soundly addressed in those
opinions.
      Pelaez further argues Supreme Court authority, People v.
Page (2017) 3 Cal.5th 1175, counsels in favor of extending section
1170.95 beyond murder. We conclude Page is inapposite in this
regard. Page concerned the reclassification of felony theft to a
misdemeanor and resentencing pursuant to Proposition 47 if the
value of the property taken was worth $950 or less. Appellant
Page had been convicted of violating Vehicle Code section 10851,
which involves the “taking or driving a vehicle.” (Id. at pp. 1179-
1180.) Our Supreme Court held that although the resentencing
statute did not expressly list Vehicle Code section 10851, Vehicle
Code section 10851 fell within the provision of the general
resentencing statute when the value of the vehicle was less than
$950 and involved theft rather than joyriding. (Id. at p. 1187.)
      Here, there is no comparable statutory language at issue.
Section 1170.95 specifically confines itself to the crime of murder.
B.     The Trial Court Did Not Err in Denying Pelaez’s
       Petition Prior to the Appointment of Counsel or
       Scheduling Briefing
       Pelaez contends the trial court should have first appointed
counsel and ordered briefing prior to denying her petition. We
disagree.
       Subdivision (c) of section 1170.95 states: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court




                                 5
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
       Subdivision (c) requires a petitioner to make two prima
facie showings. First, a petitioner must show she “ ‘falls within
the provisions of this section’ ”—that is, that she is eligible for
section 1170.95 relief. (People v. Verdugo (2020) 44 Cal.App.5th
320, 328, review granted Mar. 18, 2020, S260493 (Verdugo); see
§ 1170.95, subd. (c).) It is only after the petitioner makes this
first prima facie showing of eligibility that the trial court need
appoint counsel or order briefing. (People v. Lewis (2020) 43
Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020,
S260598 (Lewis) [“When the statutory framework is, overall,
chronological, courts will construe the timing of particular acts in
relation to other acts according to their location within the
statute; that is, actions described in the statute occur in the order
they appear in the text”]; accord, Verdugo, supra, at p. 328.)
Thereafter, the trial court is to evaluate whether the petitioner
has demonstrated a second prima facie showing of entitlement to
relief before issuing an order to show cause why relief should not
be granted. (Verdugo, supra, at p. 328.)
       In determining whether a petitioner established the initial
prima facie showing of eligibility, the trial court is not limited to
reviewing the petition. (Lewis, supra, 43 Cal.App.5th at p. 1138.)
The court may also consider the record of conviction (ibid), which
may include “the complaint, information or indictment filed




                                  6
against the petitioner; the verdict form or factual basis
documentation for a negotiated plea; and the abstract of
judgment” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330).
“Allowing the trial court to consider its file and the record of
conviction is . . . sound policy” because it will avoid misuse of
judicial resources “ ‘when even a cursory review of the court file
[may] show as a matter of law that the petitioner is not eligible
for relief.’ ” (Lewis, supra, at p. 1138; accord, Verdugo, supra, at
p. 331.)
       Here, Pelaez stated in her petition that she pleaded guilty
or no contest to first or second degree murder. However, the
record of conviction plainly reveals she pleaded no contest to
voluntary manslaughter. The trial court “need not credit factual
assertions [in the petition] that are untrue as a matter of law—
for example, a petitioner’s assertion that a particular conviction
is eligible for relief where the crime is not listed in subdivision (a)
of section 1170.95 as eligible for resentencing.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 980.) As we discussed above,
a conviction for voluntary manslaughter does not fall within the
ambit of section 1170.95. Pelaez failed to demonstrate an initial
prima facie showing of eligibility. The trial court was not
required to appoint counsel or schedule briefing prior to such a
showing. (Lewis, supra, 43 Cal.App.5th at pp. 1139-1140; accord,
Verdugo, supra, 44 Cal.App.5th at p. 328.)




                                   7
                        DISPOSITION
       The December 11, 2019 minute order denying Pelaez’s
petition is affirmed.
       NOT TO BE PUBLISHED



                                          SINANIAN, J.*


We concur:


             CHANEY, J.



             BENDIX, Acting P. J.




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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