Filed 5/21/21 P. v. Stewart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074763
v. (Super.Ct.No. RIF10003595)
THURSTON STEWART IV, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Richard Power, 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, Daniel Rogers and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant, Thurston Stewart IV, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied. Defendant contends
the court erred in denying his petition on the grounds that section 1170.95 does not apply
to those convicted of attempted murder. We affirm.
I. PROCEDURAL BACKGROUND
On July 13, 2011, the People charged defendant by amended felony complaint
with murder (§ 187, subd. (a); count 1), two counts of robbery (§ 211; counts 2 & 3),
voluntary manslaughter (§ 192, subd. (a); count 4), and attempted murder (§§ 664, 187,
subd. (a); count 5). The People additionally alleged that defendant had been engaged in
the commission of an attempted robbery when he committed the count 1 offense.
(§ 190.2, subd. (a)(17)(A).)
On July 13, 2011, pursuant to a negotiated agreement, defendant pled guilty to two
counts of robbery (§ 211; counts 2 & 3), voluntary manslaughter (§ 192, subd. (a);
count 4), and attempted murder (§§ 664, 187, subd. (a); count 5). Defendant also
admitted a principal was armed with a firearm in the commission of the count 4 offense.
(§ 12022, subd. (a)(1).) In return, the remaining count and allegation were dismissed.
On June 11, 2012, the court sentenced defendant to the agreed upon term of 16 years four
months of imprisonment.
On January 30, 2020, defendant filed a petition for resentencing pursuant to
section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss
1 All further statutory references are to the Penal Code.
2 defendant’s petition because defendant had been convicted of attempted murder and
voluntary manslaughter, not murder. The court denied the petition.2
II. DISCUSSION
Defendant contends the court erred in denying his petition on the grounds that
section 1170.95 does not apply to those convicted of attempted murder. We disagree.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] narrowed the scope of liability for first
and second degree murder by altering the doctrines that had allowed convictions for those
offenses in the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that
change by amending sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural and probable consequences
doctrine.” (People v. Sanchez (2020) 48 Cal.App.5th 914, 917.)
“The Legislature also added section 1170.95 to the Penal Code. That provision
creates a procedure for offenders previously convicted of felony murder or murder under
a natural and probable consequences theory to obtain the benefits of these changes
retrospectively. If the petitioner makes a prima facie showing of entitlement to relief
under section 1170.95, subdivision (a), the petitioner is entitled to receive ‘a hearing to
determine whether to vacate the murder conviction and to recall the sentence and
2 The reporter’s transcript reflects that the trial court denied the petition. The minute order indicates the court dismissed the petition. We shall direct the court to correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)
3 resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not been previously . . . sentenced.’” (People v. Sanchez, supra, 48 Cal.App.5th at
p. 917.)
“By its plain language, section 1170.95 . . . makes resentencing relief available
only to qualifying persons convicted of murder.” (People v. Sanchez, supra,
48 Cal.App.5th at p. 918; accord People v. Larios (2019) 42 Cal.App.5th 956, 970,
review granted Feb. 26, 2020, S259983 [“[T]he relief provided in section 1170.95 is
limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder.”]; accord People v. Lopez (2019) 38 Cal.App.5th 1087,
1105, review granted Nov. 13, 2019, S258175 [“The plain language meaning of Senate
Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully
supported by its legislative history.”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753,
review granted Nov. 26, 2019, S258234 [“Senate Bill 1437 does not apply to attempted
murder convictions.”]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review
granted Mar. 11, 2020, S259948 [“[T]he relief provided in section 1170.95 is limited to
certain murder convictions and excludes all other convictions, including a conviction for
attempted murder.”]; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted
July 29, 2020, S262184 [“Senate Bill 1437 . . . reaches the crime of murder but has no
application to attempted murder.”]; accord People v. Love (2020) 55 Cal.App.5th 273,
286, review granted Dec. 16, 2020, S265445 [“In our view, Senate Bill 1437’s legislative
history pretty clearly establishes that its amendments apply to the crime of murder and to
that crime alone.”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 223 [“Senate Bill 1437
4 does not apply to attempted murder.”]; accord People v. Harris (2021) 60 Cal.App.5th
557, 566, review granted Apr. 21, 2021, S267529 [“[R]elief under section 1170.95 is not
available to those convicted of attempted murder.”].) We agree with the previous panels
of this court in People v. Sanchez, supra, 48 Cal.App.5th 914 and People v. Harris that
the plain language of section 1170.95 limits relief to those convicted of murder; no
reference to attempted murder appears in section 1170.95. Thus, the court properly
denied defendant’s section 1170.95 petition because defendant had been convicted of
attempted murder, not murder.
Three courts have held that Senate Bill No. 1437 does apply to those convicted of
attempted murder but only on direct appeal from the judgment: “[W]e conclude Senate
Bill 1437 precludes any imposition of vicarious liability under the natural and probable
consequences doctrine if the charged offense requires malice aforethought. Because
malice cannot be imputed to a defendant who aids and abets a target offense without the
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Filed 5/21/21 P. v. Stewart 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, E074763
v. (Super.Ct.No. RIF10003595)
THURSTON STEWART IV, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Richard Power, 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, Daniel Rogers and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant, Thurston Stewart IV, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied. Defendant contends
the court erred in denying his petition on the grounds that section 1170.95 does not apply
to those convicted of attempted murder. We affirm.
I. PROCEDURAL BACKGROUND
On July 13, 2011, the People charged defendant by amended felony complaint
with murder (§ 187, subd. (a); count 1), two counts of robbery (§ 211; counts 2 & 3),
voluntary manslaughter (§ 192, subd. (a); count 4), and attempted murder (§§ 664, 187,
subd. (a); count 5). The People additionally alleged that defendant had been engaged in
the commission of an attempted robbery when he committed the count 1 offense.
(§ 190.2, subd. (a)(17)(A).)
On July 13, 2011, pursuant to a negotiated agreement, defendant pled guilty to two
counts of robbery (§ 211; counts 2 & 3), voluntary manslaughter (§ 192, subd. (a);
count 4), and attempted murder (§§ 664, 187, subd. (a); count 5). Defendant also
admitted a principal was armed with a firearm in the commission of the count 4 offense.
(§ 12022, subd. (a)(1).) In return, the remaining count and allegation were dismissed.
On June 11, 2012, the court sentenced defendant to the agreed upon term of 16 years four
months of imprisonment.
On January 30, 2020, defendant filed a petition for resentencing pursuant to
section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss
1 All further statutory references are to the Penal Code.
2 defendant’s petition because defendant had been convicted of attempted murder and
voluntary manslaughter, not murder. The court denied the petition.2
II. DISCUSSION
Defendant contends the court erred in denying his petition on the grounds that
section 1170.95 does not apply to those convicted of attempted murder. We disagree.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] narrowed the scope of liability for first
and second degree murder by altering the doctrines that had allowed convictions for those
offenses in the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that
change by amending sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural and probable consequences
doctrine.” (People v. Sanchez (2020) 48 Cal.App.5th 914, 917.)
“The Legislature also added section 1170.95 to the Penal Code. That provision
creates a procedure for offenders previously convicted of felony murder or murder under
a natural and probable consequences theory to obtain the benefits of these changes
retrospectively. If the petitioner makes a prima facie showing of entitlement to relief
under section 1170.95, subdivision (a), the petitioner is entitled to receive ‘a hearing to
determine whether to vacate the murder conviction and to recall the sentence and
2 The reporter’s transcript reflects that the trial court denied the petition. The minute order indicates the court dismissed the petition. We shall direct the court to correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)
3 resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not been previously . . . sentenced.’” (People v. Sanchez, supra, 48 Cal.App.5th at
p. 917.)
“By its plain language, section 1170.95 . . . makes resentencing relief available
only to qualifying persons convicted of murder.” (People v. Sanchez, supra,
48 Cal.App.5th at p. 918; accord People v. Larios (2019) 42 Cal.App.5th 956, 970,
review granted Feb. 26, 2020, S259983 [“[T]he relief provided in section 1170.95 is
limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder.”]; accord People v. Lopez (2019) 38 Cal.App.5th 1087,
1105, review granted Nov. 13, 2019, S258175 [“The plain language meaning of Senate
Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully
supported by its legislative history.”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753,
review granted Nov. 26, 2019, S258234 [“Senate Bill 1437 does not apply to attempted
murder convictions.”]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review
granted Mar. 11, 2020, S259948 [“[T]he relief provided in section 1170.95 is limited to
certain murder convictions and excludes all other convictions, including a conviction for
attempted murder.”]; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted
July 29, 2020, S262184 [“Senate Bill 1437 . . . reaches the crime of murder but has no
application to attempted murder.”]; accord People v. Love (2020) 55 Cal.App.5th 273,
286, review granted Dec. 16, 2020, S265445 [“In our view, Senate Bill 1437’s legislative
history pretty clearly establishes that its amendments apply to the crime of murder and to
that crime alone.”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 223 [“Senate Bill 1437
4 does not apply to attempted murder.”]; accord People v. Harris (2021) 60 Cal.App.5th
557, 566, review granted Apr. 21, 2021, S267529 [“[R]elief under section 1170.95 is not
available to those convicted of attempted murder.”].) We agree with the previous panels
of this court in People v. Sanchez, supra, 48 Cal.App.5th 914 and People v. Harris that
the plain language of section 1170.95 limits relief to those convicted of murder; no
reference to attempted murder appears in section 1170.95. Thus, the court properly
denied defendant’s section 1170.95 petition because defendant had been convicted of
attempted murder, not murder.
Three courts have held that Senate Bill No. 1437 does apply to those convicted of
attempted murder but only on direct appeal from the judgment: “[W]e conclude Senate
Bill 1437 precludes any imposition of vicarious liability under the natural and probable
consequences doctrine if the charged offense requires malice aforethought. Because
malice cannot be imputed to a defendant who aids and abets a target offense without the
intent to kill, the natural and probable consequences doctrine is no longer a viable theory
of accomplice liability for attempted murder.” (People v. Medrano, supra,
42 Cal.App.5th at p. 1013; accord People v. Larios, supra, 42 Cal.App.5th at p. 968
[“Senate Bill 1437’s abrogation of the natural and probable consequences doctrine as
stated in section 188, subdivision (a)(3) necessarily applies to attempted murder.”];
accord People v. Sanchez (2020) 46 Cal.App.5th 637, 644, review granted June 10, 2020,
S261768 [“[W]e conclude Senate Bill No. 1437 abrogates the natural and probable
consequences doctrine in attempted murder prosecutions.”].) However, “the section
1170.95 petitioning procedure does not apply to defendants for their convictions of
5 attempted murder . . . .” (Medrano, at p. 1008; accord Larios, at p. 961 [“[S]ection
1170.95 provides no relief for the crime of attempted murder.”]; accord People v.
Sanchez, supra, 46 Cal.App.5th at p. 644 [The conclusion that “Senate Bill No. 1437
abrogates the natural and probable consequences doctrine in attempted murder
prosecutions . . . applies retroactively on direct appeal.”]) Thus, even if we assumed that
Senate Bill No. 1437 applied to convictions for attempted murder, the petitioning and
resentencing procedures of section 1170.95 do not. Therefore, because defendant’s
appeal is from the denial of a section 1170.95 petition and not from the judgment, he is
not entitled to any relief. The court properly denied his section 1170.95 petition.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to modify its February 14,
2020, minute order to reflect that it denied, rather than dismissed, defendant’s petition for
resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
FIELDS J.
MENETREZ J.