Filed 4/5/22 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
NANCY RODRIGUEZ,
Defendant and Appellant.
|
F079641
(Super. Ct. No. 1456746)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Nancy Rodriguez appeals from the superior court’s order denying her request for reconsideration of her Penal Code[1] section 1170.95 petition to vacate her sentence for voluntary manslaughter. Finding the issues appellant raises in the appeal are moot, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, appellant was charged by indictment with conspiracy to commit murder (§§ 182, 187, subd. (a); count I) and premeditated murder (§ 187, subd. (a); count II). It was further alleged the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(a)). Appellant underwent a jury trial, where the prosecutor’s theory was that appellant was guilty based on the natural and probable consequences doctrine. The jury was unable to reach a verdict, and the court found them to be “hopelessly deadlocked” and declared a mistrial.
Appellant thereafter reached a plea agreement with the People. On June 1, 2016, appellant pled no contest to voluntary manslaughter (§ 192, subd. (a)), a lesser-included offense of count II of the indictment. Appellant further admitted the criminal street gang enhancement. In exchange for appellant’s plea, the People dismissed the balance of the charges against appellant. Appellant was sentenced to the upper term of 11 years, plus 10 years for the enhancement, for an aggregate sentence of 21 years in state prison.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which abolished the natural and probable consequences doctrine in cases of murder, and limited the application of the felony-murder doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842‒843.) The Legislature also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4.)
On April 19, 2019, appellant filed, in pro per, a petition for resentencing under section 1170.95. Appellant used a form petition that included the following checkboxes:
“□ 1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
“□ 2a. At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine;
“OR
“□ 2b. I pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine.
“□ 3. I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.
“Note: Box 1, Box 2a or 2b, and Box 3 must all apply in order to be resentenced under Penal Code § 1170.95.”
Appellant only checked box 3. Appellant did not check the box requesting to be appointed an attorney but put her trial attorney’s information on the form.
On May 2, 2019, a judge who was not the judge who presided over appellant’s sentencing, issued a written ruling summarily denying appellant’s petition. The court noted that appellant failed to make a prima facie case as she did not aver she was convicted under any theory of felony murder or murder under the natural and probable consequences doctrine. The court also noted appellant pled to voluntary manslaughter, not “under any theory of felony-murder or murder under natural and probable consequences,” and was thus ineligible for relief under section 1170.95 as a matter of law.
On June 12, 2019, appellant, through counsel, filed a request for reconsideration of her petition for resentencing pursuant to section 1170.95. Appellant argued that aiders and abettors prosecuted for murder under the natural and probable consequences doctrine, who pled to the lesser offense of manslaughter, qualified for resentencing under the language of section 1170.95 and the intent of Senate Bill 1437, and appellant was therefore eligible for relief.
The People filed an opposition to appellant’s request contending it was untimely under Code of Civil Procedure section 1008, subdivision (a).[2] The People also noted they further objected to the request “based on the nconstitutionality of Senate Bill 1437, [appellant’s] role in the murder … as a major participant and her reckless disregard for human life, and because [appellant] was convicted of voluntary manslaughter, not a crime falling under the relief named in … section 1170.95.”
On June 24, 2019, appellant’s trial counsel, in response to the opposition by the People, filed a supplemental declaration in support of the request for reconsideration providing some background information as to why the request for reconsideration was filed. Counsel indicated that in April 2019, counsel had sent appellant a letter suggesting she file the initial petition and informing her that upon her filing the petition he would be re-appointed to represent her. Counsel received a service copy of appellant’s pro per petition. After about a month without hearing anything from the court regarding the petition, in May 2019, counsel contacted the superior court clerk’s office to follow up. The clerk’s office informed counsel appellant’s petition had already been denied. Counsel declared he was not given notice of the denial or an opportunity to be heard. Counsel further declared he noticed appellant had not checked the box requesting to be appointed counsel and sent appellant a letter asking if she wished to be represented by his office, to which she responded, in June 2019, that she did. Two days later, counsel filed the request for reconsideration.
On July 9, 2019, the judge who presided over appellant’s trial, plea, and sentencing conducted a hearing on appellant’s request for reconsideration. Appellant was not personally present, but counsel was. The judge expressed concern that he was not the judge who issued the initial denial. He expressed further concern that the statute on its face appeared not to apply to manslaughter convictions, only murder convictions. After some discussion with the parties, the court ultimately stated, “if you want me to decide the specific issue before me, and that is whether I would consider a reconsideration of [the previous judge’s] denial, that request is denied. I think your remedy is an appeal.”
Appellant filed a notice of appeal on July 10, 2019.
[u]DISCUSSION
As an initial matter, the parties disagree over whether we have jurisdiction over this appeal. Appellant contends both the summary denial of her original petition and the denial of her request for reconsideration were appealable under section 1237, subdivision (b), as they were “order[s] made after judgment, affecting the substantial rights of the party.”
Respondent concedes the court’s denial of the original petition was an appealable order under section 1237, subdivision (b) but contends the denial of the request for reconsideration was not a separately appealable order and did not extend the deadline to file a notice of appeal from the denial of the original petition. As appellant’s notice of appeal was not filed within 60 days of the court’s denial of the original petition, it is respondent’s position we have no jurisdiction over this appeal.
We do not reach the parties’ jurisdictional arguments, as the appeal is moot.
Appellant raises several procedural claims of error, mostly related to why we should find the denial of appellant’s request for reconsideration to be an appealable order. Her primary substantive argument, however, is that voluntary manslaughter is a qualifying offense under section 1170.95, entitling her to relief, and rendering both judges’ denials erroneous.
As we have stated, at the time appellant filed her petition for resentencing, section 1170.95 authorized a person who had been convicted of felony murder or murder under the natural and probable consequences theory to file a petition for the court to vacate the person’s sentence and resentence them when specified conditions applied.
In October 2021, however, while appellant’s appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2), which became effective on January 1, 2022 (Senate Bill 775). Senate Bill 775 clarified that persons convicted of manslaughter and attempted murder may be eligible for resentencing under section 1170.95. As amended, section 1170.95 expressly applies to persons “convicted of … manslaughter,” who meet the specified conditions. (§ 1170.95, subd. (a).)[3]
We decline to determine whether the denial of the request for reconsideration in the present case is an appealable order, as such a determination is unnecessary. The Legislature, in enacting Senate Bill 775, has rendered the substantive arguments moot. “ ‘As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions “ ‘ “ ‘upon moot questions or abstract propositions, or … declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ” ’ ” [Citation.] “[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” ’ ” (People v. Redus (2020) 54 Cal.App.5th 998, 1008‒1009.)
Respondent concedes appellant can file a new petition under the amended section 1170.95. We agree with respondent that appellant may seek relief in the trial court in the first instance under the new version of section 1170.95.
DISPOSITION
The appeal is dismissed. Appellant is not precluded from bringing a new petition under section 1170.95. Upon refiling, appellant is advised to request counsel if she wishes to be represented. If appellant brings a new petition, the trial court is advised to follow the procedure set forth in section 1170.95, as amended by Senate Bill 775, and relevant case law interpreting it, including the California Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952.
* Before Franson, Acting P. J., Smith, J. and DeSantos, J.
[1] All further undesignated statutory references are to the Penal Code.
[2] The parties agree this was a misplaced argument, as the Court of Appeal has held that Code of Civil Procedure section 1008 does not apply to criminal matters, and if it did, it would not limit a criminal court’s inherent power to reconsider its own rulings. (People v. Castello (1998) 65 Cal.App.4th 1242, 1247; see People v. Superior Court (Laff) 25 Cal.4th 703, 728‒729 [citing Castello with approval]; see also People v. DeLouize (2004) 32 Cal.4th 1223, 1231, fn. 2 [expressing no view on the issue].)
[3] Prior to the enaction of Senate Bill 775, several Courts of Appeal interpreted section 1170.95 as inapplicable to individuals with manslaughter convictions and rejected similar arguments to those set forth in appellant’s request for reconsideration filed with the trial court. (See, e.g., People v. Paige (2020) 51 Cal.App.5th 194; see also People v. McClure (2021) 67 Cal.App.5th 1054, ordered depublished Nov. 10, 2021, S271070 [498 P.3d 89; 2021 Cal. LEXIS 7764]; People v. Harris (2021) 60 Cal.App.5th 557, ordered depublished Dec. 29, 2021, S267529 [501 P.3d 634; 2021 Cal. LEXIS 9064].)
