Filed 8/19/20 P. v. Rendon CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                                        G057637

           v.                                                          (Super. Ct. No. 12CF1604)

 ADRIAN RENDON,                                                        OPINION

      Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
                   Stephen M. Lathrop, 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, Amanda V. Lopez,
Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.
                                             *               *               *
                                        INTRODUCTION
                Defendant Adrian Rendon was convicted of attempted murder under the
natural and probable consequences doctrine, and sentenced to 25 years to life. Pursuant
                                 1
to Penal Code section 1170.95, defendant filed a petition for resentencing. The trial
court summarily denied defendant’s petition. We affirm.
                The language of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1051, § 4), the legislation that enacted section 1170.95, applies to murder, not
attempted murder. Even the cases which defendant cites that reach the conclusion Senate
Bill No. 1437 applies to attempted murder also conclude that section 1170.95 does not
permit resentencing petitions for those already convicted of attempted murder.


                     STATEMENT OF FACTS AND PROCEDURAL HISTORY
                The facts of the underlying case are fully set forth in our prior unpublished
opinion, People v. Rendon and Sevilla (June 26, 2018, G054006). In short, in the process
of committing a carjacking, defendant’s codefendant shot the victim in the head; the
victim survived the attack. It is undisputed that defendant was not the shooter.
Defendant claimed at trial that he was not part of a conspiracy to murder the victim, and
that he did not know his codefendant had a gun or that he would shoot or try to kill the
victim. (Ibid.)
                Defendant was convicted of conspiracy to commit murder (§§ 182,
subd. (a)(1), 187, subd. (a) [count 1]), attempted murder (§§ 664, subd. (a), 187, subd. (a)
[count 2]), and carjacking (§ 215, subd. (a) [count 3]). The trial court sentenced
defendant to 25 years to life in prison on count 1; sentences of life with the possibility of
parole after seven years on count 2 and five years determinate on count 3 were to run
concurrent to the sentence on count 1, and were stayed pursuant to section 654. A panel
1
    All further statutory references are to the Penal Code.


                                               2
of this court affirmed the judgment of conviction and remanded for further proceedings.
                                                   2
(People v. Rendon and Sevilla, supra, G054006.)
              Following the passage of Senate Bill No. 1437, defendant filed a petition
for resentencing under section 1170.95. The trial court summarily denied the petition:
“The petition does not set forth a prima face case for relief under the statute. A review of
court records indicates defendant is not eligible for relief under the statute because the
defendant does not stand convicted of murder.” Defendant filed a notice of appeal from
the postjudgment order.


                                        DISCUSSION
              Defendant argues the trial court erred by summarily denying his petition for
resentencing because the statutory changes of Senate Bill No. 1437 apply to convictions
for attempted murder based on the natural and probable consequences doctrine to the
same extent as convictions for murder based on the natural and probable consequences
doctrine.
              Two distinct lines of authority have emerged as to whether Senate Bill
No. 1437’s legislative changes apply to those charged with attempted murder under the
natural and probable consequences doctrine. On one side are People v. Lopez (2019) 38
Cal.App.5th 1087 (Lopez), review granted November 13, 2019, S258175 and People v.
Munoz (2019) 39 Cal.App.5th 738 (Munoz), review granted November 26, 2019,
S258234, and on the other side are People v. Medrano (2019) 42 Cal.App.5th 1001
(Medrano), review granted March 11, 2020, S259948, People v. Larios (2019) 42
Cal.App.5th 956, 969-970 (Larios), review granted February 26, 2020, S259983, and


2
   It is unclear from the record on appeal whether the further proceedings we directed the
trial court to conduct have been conducted. Our opinion in this appeal is not intended to
have any effect on those proceedings.


                                              3
People v. Sanchez (2020) 46 Cal.App.5th 637 (Sanchez), review granted June 10, 2020,
           3
S261768.
               In Lopez, the appellate court noted that Senate Bill No. 1437 does not
mention attempted murder, and the legislative history supports the conclusion that the
legislation was not intended to affect convictions for attempted murder. (Lopez, supra,
38 Cal.App.5th at pp. 1103-1105.) The court reached the same conclusion for the same
reasons in Munoz, supra, 39 Cal.App.5th at pages 753 through 760.
               In Medrano, the appellate court held that because “the crime of attempted
murder is tethered to the murder statutes, i.e., it does not exist without them, there is no
logical basis for applying section 188 to murder and treating the crime of attempted
murder as being subject to an impliedly different and unspecified rule of law.”
(Medrano, supra, 42 Cal.App.5th at p. 1015.)
               In Larios, the appellate court held that “the natural and probable
consequences doctrine is no longer a viable theory of accomplice liability for attempted
murder.” (Larios, supra, 42 Cal.App.5th at p. 966.) The court reasoned that “since
‘implied malice cannot support a conviction of an attempt to commit murder’ [citation],
the current version of section 188 requires proof the aider and abettor acted with the
intent to kill while aiding and abetting the target offense.” (Ibid.)
               In Sanchez, the appellate court agreed with the decisions in Medrano and
Larios (Sanchez, supra, 46 Cal.App.5th at pp. 642-643), and further concluded that
“[l]imiting Senate Bill 1437’s malice imputing prohibition to murder has the absurd
consequence of incentivizing murder” by creating a situation in which under certain



3
   The California Supreme Court limited review in Lopez to two issues, only one of which
is relevant to this appeal: “Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to
attempted murder liability under the natural and probable consequences doctrine?” In
Munoz, Medrano, Larios, and Sanchez, the Supreme Court deferred further action
pending the disposition of Lopez.

                                              4
circumstances an aider and abettor of murder would face lesser criminal culpability than
an aider and abettor of attempted murder. (Id. at pp. 643-644.)
              In People v. Dennis (2020) 47 Cal.App.5th 838 (Dennis), another panel of
this court concluded that Lopez and Munoz are the better reasoned opinions, and rejected
the analyses of Sanchez, Medrano, and Larios. “In our view, the Medrano, Larios, and
Sanchez courts rested their contrary conclusion on a flawed premise—that to be
convicted as an aider and abettor under the natural and probable consequences doctrine a
defendant must share the mental state of the direct perpetrator.” (Dennis, supra, 47
Cal.App.5th at p. 846.) To the contrary, the Dennis court quoted the Supreme Court’s
opinion in People v. Chiu (2014) 59 Cal.4th 155, 164 regarding aider and abettor
culpability under the natural and probable consequences doctrine: “‘Because the
nontarget offense is unintended, the mens rea of the aider and abettor with respect to that
offense is irrelevant and culpability is imposed simply because a reasonable person could
have foreseen the commission of the target crime.’” We agree with Dennis’s conclusion
that Senate Bill No. 1437 does not permit defendants convicted of attempted murder
under the natural and probable consequences doctrine to seek resentencing under
section 1170.95.
              Additionally, the plain language of section 1170.95 applies only to those
convicted of murder, not attempted murder. The initial sentence of the statute begins:
“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), italics added; see Munoz, supra, 39 Cal.App.5th at p. 754;
Lopez, supra, 38 Cal.App.5th at p. 1104.) Even Medrano and Larios are in agreement
that section 1170.95’s resentencing petition procedure is not available to those previously
convicted of attempted murder under the natural and probable consequences doctrine, and
that the distinction between murder and attempted murder in this context meets the

                                             5
rational basis test. (Medrano, supra, 42 Cal.App.5th at pp. 1016-1018; Larios, supra,
42 Cal.App.5th at pp. 968-970 [“there is a rational basis for the Legislature’s decision to
grant relief pursuant to section 1170.95 only to murder convictions and exclude
attempted murder convictions based on judicial economy and the financial costs
                                                                                          4
associated with reopening both final murder and final attempted murder convictions”].)
               Contrary to defendant’s argument, the application of the ameliorative
benefits of Senate Bill No. 1437 to those convicted of murder but not to those convicted
of attempted murder does not violate state and federal equal protection principles. As the
court explained in Lopez, there are two primary bases supporting the legislation’s
distinction between these two crimes. First, the Legislature could reasonably decide that
the reforms accomplished by Senate Bill No. 1437 were “‘more crucial or imperative’” in
murder cases than in attempted murder cases because of the gap in culpability. (Lopez,
supra, 38 Cal.App.5th at pp. 1111-1112.) Second, given the costs associated with the
section 1170.95 petitioning process, “it is reasonable for the Legislature to limit the scope
of reform measures to maintain the state’s financial integrity.” (Lopez, supra, at p. 1112.)




4
    Sanchez, supra, 46 Cal.App.5th 637, did not address this issue.

                                              6
                                 DISPOSITION
          The postjudgment order is affirmed.




                                           FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



THOMPSON, J.




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