People v. Haro CA4/2

• Court: California Court of Appeal
• Decided: November 8, 2023
• Docket: E081033
• Status: Unpublished

Opinion

Filed 11/8/23 P. v. Haro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E081033

v. (Super.Ct.No. FSB030258)

JOHNNY JOE HARO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the

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

Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Johnny Joe Haro appeals the order of the San Bernardino

County Superior Court denying his petition for resentencing made pursuant to section

1172.6.1

BACKGROUND

In March 2000, defendant and his codefendant, Daryl Scott Ferguson, attempted to

rob a liquor store. In the course of the robbery, Ferguson fired his gun three times, hitting

the store owner in the shoulder.

In 2001, a jury convicted defendant of several offenses, including attempted

second degree robbery (§§ 664, 211), attempted voluntary manslaughter (§§ 664, 192,

subd. (a)), and assault with a firearm (§ 245, subd. (b)), as well as discharge of a handgun

by a principal during the commission of those crimes, resulting in great bodily injury

(§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced defendant to a prison term of

25 years to life, consisting of the upper term of three years for the attempted robbery, a

two-year consecutive term for the assault, and a 25-year-to-life consecutive term for the

use of a firearm enhancement attached to the attempted robbery count. The sentence for

the attempted voluntary manslaughter was stayed pursuant to section 654. Defendant

appealed the judgment and we affirmed with instructions to the trial court to amend

defendant’s abstract of judgment. (People v. Ferguson (Oct. 15, 2003, E030830)

[nonpub. opn.].)

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.

2 In February 2022, defendant filed a petition for resentencing pursuant to section

1172.6. The People responded with a brief and request for judicial notice of the court’s

relevant case files, and argued defendant’s conviction for attempted voluntary

manslaughter does not come within section 1172.6. At the eligibility hearing, the trial

court stated it had reviewed its file and agreed with the People that defendant is not

eligible for resentencing relief and denied the petition. Defendant timely noticed this

appeal.

Defendant’s appointed appellate counsel filed an opening brief that sets forth

statements of the case and facts but does not present any issues for adjudication. Counsel

requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 to

conduct an independent review of the record. The brief lists the following issue

considered by counsel: whether attempted voluntary manslaughter should be included as

a qualifying offense for the purposes of section 1172.6 on the grounds that excluding

defendants convicted of that crime violates the equal protection clauses of the United

States and California Constitutions.

Upon receipt of the opening brief, we notified defendant of his counsel’s inability

to find an arguable issue, advised him we are not required to conduct an independent

review of the record, and invited him to file any arguments he deemed necessary.

DISCUSSION

In his handwritten letter submitted in response to our invitation, defendant argues

reversal of the trial court’s denial of his petition for resentencing is called for because:

3 (i) section 1172.6 applies to a conviction for attempted manslaughter because the statute

does not exclude that crime, (ii) failure to include attempted manslaughter in the relief

afforded by section 1172.6 violates the equal protection clauses of the United States and

California Constitutions, (iii) the natural and probable consequences doctrine had a

significant prejudicial impact on the jury’s verdict, and (iv) his trial counsel did not

provide effective assistance. He also requests this court to relieve his appointed appellate

counsel and provide another attorney.

We are not persuaded by defendant’s argument that attempted voluntary

manslaughter is eligible for section 1172.6 relief because the statute does not exclude it.

Subdivision (a) of section 1172.6 unambiguously limits the applicability of the statute to

persons convicted of certain offenses and defendant does not cite, nor do we find, any

authority or legislative history suggesting the Legislature intended for the statute to

encompass any offense not specified in subdivision (a). (People v. Colbert (2019) 6

Cal.5th 596, 603 [where the statute’s language is unambiguous, then the plain meaning of

the statute governs].) Naturally, because the offense of attempted voluntary

manslaughter is not included in section 1172.6, the issue whether the natural and

probable consequences doctrine had a significant prejudicial impact on the jury’s verdict

is of no relevance here.

Nor do we agree with defendant that the exclusion of attempted voluntary

manslaughter runs afoul of the equal protection clauses set forth in the United States and

California Constitutions. Those provisions do not apply because defendant is not

4 similarly situated with those who are entitled to the benefit of section 1172.6. (People v.

Cervantes (2020) 44 Cal.App.5th 884, 888.) The crime of voluntary manslaughter is a

different crime and carries a different punishment than those set forth in subdivision (a)

of section 1176.2.

Defendant urges us to find his trial counsel was ineffective because counsel did

not reply to the People’s response to the resentencing petition. A reply to the response is

not required by section 1172.6, subdivision (c). Moreover, we are confident defendant

did not suffer any harm on account of counsel’s failure to reply because defendant’s

offense of attempted voluntary manslaughter does not qualify for resentencing relief.

Defendant requests that we relieve appointed appellate counsel and appoint

another attorney “if this court believes future proceedings are necessary.” No future

proceedings on the issue of defendant’s eligibility for resentencing pursuant to section

1172.6 are necessary and, in all events, we find counsel has provided effective

representation on appeal.

5 DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

FIELDS J.