Opinion
A157520
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. LAE LOCKEAPHONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 173309)
Defendant Lae Lockeaphone was charged with murder and other crimes after participating in a robbery during which a co-defendant killed another man. In 2017, after pleading no contest to voluntary manslaughter and admitting two prior-conviction allegations, Lockeaphone was sentenced to 28 years in prison.
The Legislature subsequently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code section 1170.95, for eligible defendants to petition for recall and resentencing. Lockeaphone filed a petition for relief, and the trial court denied it on the basis that section 1170.95 is inapplicable to defendants convicted of voluntary manslaughter.
All further statutory references are to the Penal Code.
On appeal, Lockeaphone claims that "the rules of statutory construction compel a conclusion that section 1170.95 is applicable to manslaughter convictions resulting from plea bargains that were reached in order to avoid felony murder liability." We disagree and follow the other courts that have concluded that the statute does not by its plain terms apply to defendants convicted of voluntary manslaughter. We therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In 2013, Lockeaphone participated in the robbery of an Oakland massage parlor. During the robbery, one of his co-defendants, Curtis Yee, shot and killed a man, and Lockeaphone drove Yee and another co-defendant away from the scene. A year later, Lockeaphone was charged with murder with an accompanying allegation that he was armed with a firearm. Various sentencing enhancements based on five prior felony convictions were also alleged.
This division affirmed Yee's murder conviction in 2018. (People v. Yee (Sept. 11, 2018, A150532) [nonpub. opn.].)
The murder count was brought under section 187, subdivision (a), and the firearm enhancement was alleged under section 12022, subdivision (a)(1).
In December 2016, as part of a plea agreement, Lockeaphone pleaded no contest to voluntary manslaughter and admitted two prior convictions: one in 2008 for being an accessory after the fact, for which he served a prison term, and one in 2001 for first degree burglary, a serious felony. The firearm enhancement and the remaining prior-conviction allegations were stricken. The following February, Lockeaphone was sentenced to a total term of 28 years in prison, composed of the upper term of 11 years for voluntary manslaughter, doubled, and consecutive terms of one year for the prior prison term and five years for the prior serious felony.
The voluntary-manslaughter conviction was under section 192, subdivision (a). The prior-prison-term enhancement was imposed under section 667.5, subdivision (b), and the serious-felony enhancement was imposed under section 667, subdivision (a)(1).
While Lockeaphone was serving his sentence, the Legislature passed Senate Bill No. 1437. In January 2019, after the new legislation went into effect, Lockeaphone filed a petition under section 1170.95, arguing that he was entitled to relief because he "accepted a plea offer in lieu of trial at which he could be convicted of first-degree murder under a felony murder theory." The trial court appointed counsel for Lockeaphone and ordered the People to file a response to the petition. After a contested hearing, the court denied the petition on the basis that because Lockeaphone was not convicted of murder, he failed to make a prima facie showing of entitlement to relief.
At the same hearing, the trial court also addressed and denied petitions by two other defendants raising the same issue. Those defendants' appeals are pending in other divisions of this court. (People v. Byrd (A157502); People v. Paige (A157494).)
II.
DISCUSSION
A. Senate Bill No. 1437
"Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)" (People v. Turner (2020) 45 Cal.App.5th 428, 433 (Turner).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(3).)
Senate Bill No. 1437 also enacted section 1170.95, which authorizes "[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" so long as three conditions are met: "(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).) Any petition that fails to make "a prima facie showing that the petitioner falls within the provisions of [section 1170.95]" may be denied without a hearing. (§ 1170.95, subds. (c) & (d).)
B. Section 1170.95 Does Not Apply to Defendants Convicted of Voluntary Manslaughter.
Lockeaphone claims that section 1170.95 applies to defendants who were "charged with murder based upon the felony murder rule and accepted a plea bargain for a manslaughter conviction in order to avoid being found guilty of murder at trial." For purposes of this appeal, we will assume, without deciding, that Lockeaphone can establish he was charged with murder based on a felony murder theory and could no longer be convicted of that crime after Senate Bill No. 1437.
Lockeaphone's eligibility for relief under section 1170.95 is a question of law that we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; Turner, supra, 45 Cal.App.5th at p. 435.) " ' "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." ' " (People v. Scott (2014) 58 Cal.4th 1415, 1421.) We first consider the statutory language, " ' "giving [it] a plain and commonsense meaning." ' " (Ibid.) " ' " 'When [that] language . . . is clear, we need go no further.' [Citation.] But where a statute's terms are unclear or ambiguous, we may 'look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.' " ' " (Ibid.)
Section 1170.95 allows "[a] person convicted of felony murder or murder under a natural and probable consequences theory" to file a petition "to have the petitioner's murder conviction vacated." (§ 1170.95, subd. (a), italics added.) And should the trial court find that the petitioner has made a prima facie showing of entitlement to relief and issue an order to show cause, it "shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence" (§ 1170.95, subd. (d)(1), italics added), unless the parties "waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated." (§ 1170.95, subd. (d)(2), italics added.)
Relying on the italicized language, the Second and Fourth District Courts of Appeal have concluded that a person convicted of manslaughter is not entitled to relief under section 1170.95's plain terms. (Turner, supra, 45 Cal.App.5th at p. 432; People v. Flores (2020) 44 Cal.App.5th 985, 993; People v. Cervantes (2020) 44 Cal.App.5th 884, 887.) Using similar reasoning, appellate courts have concluded that section 1170.95 does not apply to a person convicted of attempted murder. (E.g., People v. Medrano (2019) 42 Cal.App.5th 1001, 1017, review granted Mar. 11, 2020, S259948; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104, review granted Nov. 13, 2019, S258175.)
Lockeaphone argues that although section 1170.95's text "seems to limit the availability of relief . . . to petitioners convicted of murder[,] . . . that language must be read in light of the rest of the statute and harmonized, to the extent possible, with provisions relating to the same subject matter." He focuses on section 1170.95, subdivision (a)(2), which provides that one requirement for relief is that "[t]he 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." (Italics added.) Since the italicized language does not mention a murder conviction, he reasons that it includes those defendants who pleaded to manslaughter to avoid being tried for murder based on a theory that Senate Bill No. 1437 abolished. He argues that to conclude otherwise would render the italicized language surplusage, since if the provision was not intended to include people who pleaded to crimes other than murder, it "could simply read, 'The petitioner was convicted of first or second degree murder.' "
Lockeaphone fails to present compelling reasons to depart from section 1170.95's unambiguous language limiting relief to petitioners convicted of murder. Reading subdivision (a)(2) to include a person convicted of voluntary manslaughter after a plea does not "harmonize" the provision with other parts of the statute. To the contrary, such an interpretation is inconsistent with the rest of section 1170.95, particularly because it "ignores the introductory language in . . . subdivision (a) that limits petitions to persons 'convicted of . . . murder.' " (Turner, supra, 45 Cal.App.4th at p. 436.) And even if subdivision (a)(2) of section 1170.95 could have been drafted more concisely, "the rule against surplusage will be applied only if it results in a reasonable reading of the legislation." (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 234-235.) As we have said, interpreting subdivision (a)(2) to include a person convicted of voluntary manslaughter after a plea conflicts with section 1170.95's other provisions. For this reason, we decline to apply the rule of lenity or any of the other canons of statutory construction on which Lockeaphone relies to interpret subdivision (a)(2) in a manner at odds with the rest of the statute.
In any case, as Lockeaphone effectively acknowledges, the reference to trials and pleas in section 1170.95, subdivision (a)(2), is not surplusage to the extent it clarifies that petitioners who entered pleas to murder are also eligible for relief. Similar clarification can be found in other ameliorative statutes that specify they apply to petitioners convicted of a qualifying crime "whether by trial or plea." (E.g., § 1170.18, subd. (a) [petitions for relief under Proposition 47].) While the Legislature could have echoed this language in subdivision (a)(2), we do not agree with Lockeaphone that its failure to do so supports his interpretation of section 1170.95. --------
Having concluded that section 1170.95 unambiguously applies only to petitioners convicted of murder, we need not address Lockeaphone's remaining arguments in depth. Lockeaphone claims that "[a]pplying section 1170.95 to manslaughter convictions would be consistent with the Legislature's intent in enacting . . . Senate Bill No. 1437," but the relevant question is whether the Legislature intended to provide relief to petitioners with such convictions, not whether a more expansive reading of the statute can be reconciled with the bill's basic purpose. And as the Fourth District explained in Turner, the legislative history of Senate Bill No. 1437 confirms that the Legislature did not intend to include those convicted of manslaughter. (Turner, supra, 45 Cal.App.5th at pp. 436-438.) We find Turner's reasoning on this point persuasive, and Lockeaphone offers us no reason to depart from it.
Finally, we reject Lockeaphone's claim that interpreting section 1170.95 to exclude those convicted of manslaughter will lead to absurd results. He argues that it is unfair for defendants who pleaded to voluntary manslaughter to serve longer sentences than defendants who were convicted of murder but file successful petitions under section 1170.95, thereby avoiding any homicide conviction upon resentencing. Again, we find Turner persuasive on this point. As that decision explained, interpreting section 1170.95 to exclude those convicted of manslaughter does not "produce absurdity by undermining the Legislature's goal to calibrate punishment to culpability. The punishment for manslaughter is already less than that imposed for first or second degree murder, and the determinate sentencing ranges of 3, 6, or 11 years for voluntary manslaughter and two, three[,] or four years for involuntary manslaughter permit a sentencing judge to make punishment commensurate with a defendant's culpability based on aggravating and mitigating factors. [Citations.] Providing relief solely to defendants convicted of murder under a felony-murder or natural and probable consequences theory does not conflict with the Legislature's stated objective to make 'statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.' " (Turner, supra, 45 Cal.App.5th at p. 439, quoting Stats. 2018, ch. 1015, § 1, subd. (b).)
We recognize that barring defendants who entered a plea to manslaughter from pursuing relief under section 1170.95 might lead to situations in which they receive longer sentences than they would have had they gone to trial and been convicted of murder. But here, Lockeaphone's plea bargain allowed him to avoid not only a murder conviction but a third-strike sentence. In any event, "[t]he remedy for any potentially inequitable operation of section 1170.95 lies with the Legislature," not with this court, as we are bound to follow its clear intent to provide relief only to those convicted of murder. (People v. Munoz (2019) 39 Cal.App.5th 738, 760, review granted Nov. 26, 2019, S258234; see Turner, supra, 45 Cal.App.5th at pp. 440-441.)
III.
DISPOSITION
The order denying Lockeaphone's section 1170.95 petition is affirmed.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.