Filed 8/26/20 P. v. Vazquez CA2/4
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR



THE PEOPLE,                                                   B297133

       Plaintiff and Respondent,                              Los Angeles County
                                                              Super. Ct. No. BA416505
       v.

CARLOS ADRIAN VAZQUEZ,

       Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, Katherine Mader, Judge. Affirmed.
      Jeralyn Keller, 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, Acting
Senior Attorney General, Amanda V. Lopez and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
                         INTRODUCTION

       Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under Penal Code section 1170.95,1 a person
who was convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who
could not be convicted of murder following the enactment of SB
1437, may petition the sentencing court to vacate the conviction
and resentence on any remaining counts.
       In 2015, appellant and defendant Carlos Vazquez pled no
contest to voluntary manslaughter. In 2019, he filed a petition for
recall and resentencing under section 1170.95. The trial court
denied the petition, concluding as a matter of law Vazquez was
ineligible for relief because he was not convicted of murder. On
appeal, Vazquez argues (1) because his petition stated a prima
facie claim for relief, the court erred in denying the petition
before appointing counsel; and (2) the court erred by concluding
section 1170.95 does not apply to petitioners who pled no contest
to voluntary manslaughter. We affirm.

                         BACKGROUND2

      The Los Angeles County District Attorney filed an
information charging Vazquez and two co-defendants with
murder (§ 187, subd. (a); count one). The information also alleged

1       All undesignated statutory references are to the Penal
Code.
2    Because Vazquez pled no contest, there was no trial at
which facts relating to the underlying offense were adduced.




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the murder was committed for the benefit of a criminal street
gang. On the People’s motion, the trial court amended the
information by interlineation and added a voluntary
manslaughter charge (§ 192, subd. (a); count two). Vazquez pled
no contest to voluntary manslaughter, and the court sentenced
him to an upper term of 11 years in state prison. The court
ordered the remaining count and allegations dismissed.
      In 2019, Vazquez filed a petition for resentencing under
section 1170.95. In the petition, Vazquez noted that he pled no
contest to voluntary manslaughter, not first or second degree
murder. Vazquez requested that counsel be appointed on his
behalf. The trial court summarily denied the petition, concluding
Vazquez was ineligible for relief as a matter of law because he
was not convicted of murder.
      Vazquez timely appealed.

                            DISCUSSION
The Trial Court Correctly Denied Vazquez Relief under
Section 1170.95
    A. Governing Principles
        1. SB 1437’s Limitation of Accomplice Liability for
           Murder
        The legislature enacted SB 1437 “to amend 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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies




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during which death occurs generally will not be liable for murder
unless the person was (1) “the actual killer,” (2) a direct aider and
abettor in first degree murder, or (3) “a major participant in the
underlying felony [who] acted with reckless indifference to
human life[.]” (§ 189, subd. (e).)3
      SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326, rev. granted,
S260493, Mar. 18, 2020 (Verdugo).) Under new section 188,
subdivision (a)(3), “‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ [Citations.]”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev.
granted, S260598, Mar. 18, 2020.) “As a result, the natural and
probable consequences doctrine can no longer be used to support
a murder conviction. [Citation.]” (Ibid.)

      2. Petitions to Vacate Prior Convictions

       SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95

3      This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)




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must include: “(A) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of the information is missing “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).)
       If the petition contains the required information, section
1170.95, subdivision (c), prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) The court then reviews the
petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
       “Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any




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remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions. (§ 1170.95, subd. (d)(3).)

    B. Analysis
       1. The court did not err by denying Vazquez’s
           petition without appointing counsel
       On appeal, Vazquez argues because he stated a prima facie
claim for relief, the court prejudicially erred in denying his
petition before appointing counsel. Vazquez’s claims regarding
the procedures section 1170.95 affords raise questions of law
subject to de novo review. (See In re T.B. (2009) 172 Cal.App.4th
125, 129 [interpretation of statute reviewed de novo].) Applying
this standard, we reject Vazquez’s contentions.
       The trial court was allowed to conclude, as it did, at the
first stage of the section 1170.95 analysis, that Vazquez was
ineligible for relief as a matter of law. (Verdugo, supra, 44
Cal.App.5th at p. 329 [“The court’s role [at the preliminary
eligibility determination stage] is simply to decide whether the
petitioner is ineligible for relief as a matter of law . . . .”].) In his
petition, Vazquez plainly stated he pled no contest to voluntary
manslaughter and not first or second degree murder. The court
file in no way suggested Vazquez was convicted of murder on a
felony murder or natural and probable consequences theory.
Rather, the court file showed he pled no contest to voluntary
manslaughter. (See § 1170.95, subd. (a). [section 1170.95 applies
only to individuals “convicted of felony murder or murder under a
natural and probable consequences theory . . . .”]; Verdugo, supra,
44 Cal.App.5th at p. 329 [in determining whether a petitioner is




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ineligible for relief as a matter of law, the trial court may
evaluate “documents in the court file or otherwise part of the
record of conviction that are readily ascertainable . . . .”].)
       Finding no error in the court’s conclusion that Vazquez was
ineligible for relief as a matter of law, we also reject Vazquez’s
argument that the court erred by not appointing counsel.
(Verdugo, supra, 44 Cal.App.5th at pp. 332-333 [“If, as here, the
court concludes the petitioner has failed to make the initial prima
facie showing required by subdivision (c), counsel need not be
appointed.”].)
       We lastly reject Vazquez’s argument that the trial court
violated his constitutional rights by not appointing counsel.
“[T]he retroactive relief . . . afforded by Senate Bill 1437 is not
subject to Sixth Amendment analysis.” (People v. Anthony (2019)
32 Cal.App.5th 1102, 1156.) “[T]he Legislature’s changes
constituted an act of lenity that does not implicate defendants’
Sixth Amendment rights. [Citation.]” (Ibid.)
       The trial court followed the proper procedures and correctly
denied Vazquez’s petition.

      2. Penal Code section 1170.95 does not apply to
          individuals convicted of voluntary manslaughter
      Vazquez separately argues the trial court prejudicially
erred by concluding section 1170.95 does not apply to petitioners
who pled no contest to voluntary manslaughter. We disagree.
Section 1170.95 applies only to individuals “convicted of felony
murder or murder under a natural and probable consequences
theory . . . .” (§ 1170.95, subd. (a).) It does not apply to individuals
convicted of voluntary manslaughter. (See § 1170.95; People v.
Cervantes (2020) 44 Cal.App.5th 884, 887 (Cervantes) [section




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1170.95 plainly applies only to certain individuals convicted of
murder, not voluntary manslaughter]; People v. Flores (2020) 44
Cal.App.5th 985, 989, 992-997 [section 1170.95 does not apply to
defendants charged with murder who pled guilty to voluntary
manslaughter]; People v. Turner (2020) 45 Cal.App.5th 428, 438
[“a defendant who faces murder liability under the natural and
probable consequences doctrine, but pleads guilty to
manslaughter in lieu of trial, is not eligible for resentencing
under section 1170.95.”].)
       Vazquez also argues that not extending him section
1170.95 relief violates his constitutional right to equal protection.
Cervantes addressed this issue and concluded the Legislature’s
decision to not extend section 1170.95 relief to individuals
convicted of voluntary manslaughter does not violate equal
protection. (Cervantes, supra, 44 Cal.App.5th at pp. 888-889.) As
the Cervantes court noted, “[t]he decision not to include
manslaughter in section 1170.95 falls within the Legislature’s
‘line-drawing’ authority as a rational choice that is not
constitutionally prohibited. [Citation.]” (Cervantes, supra, 44
Cal.App.5th at p. 888.) Until such time as the Legislature
redraws the line, we have no basis to remand for resentencing.




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                         DISPOSITION
       The order denying Vazquez’s petition under section 1170.95
is affirmed.

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




CURREY, J.



We concur:




MANELLA, P.J.




WILLHITE, J.




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