Filed 3/8/22 P. v. Dealba CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Michael Terrell, Judge. Affirmed.

Law Offices of James Koester and James Koester, 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, Susan Sullivan Pithey, Senior Assistant Attorney General, Kristen J. Inberg, Rene Judkiewicz and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

In 2019, defendant and appellant Daniel Dealba appealed from the trial court’s denial of his petition for vacatur of his attempted murder conviction and resentencing pursuant to Penal Code section 1170.95[1] and Senate Bill No. 1437 (Senate Bill 1437). We affirmed the trial court’s order.

Subsequently, our Supreme Court granted Dealba’s petition for review. On December 22, 2021, the Supreme Court transferred the matter back to this court, with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1–2) (Senate Bill 775), which became effective on January 1, 2022.

We vacated our November 16, 2020 opinion, and now issue this revised opinion. We again affirm the trial court’s order.

PROCEDURAL HISTORY[2]

In 2013, Dealba was convicted of attempted murder (§§ 187, subd. (a), 664, subd. (a) [count 1]), criminal threats (§ 422, subd. (a) [count 2]), and assault with a deadly weapon (§ 245, subd. (a)(1) [count 3]). The jury found true the special allegation that the attempted murder was willful, deliberate, and premeditated. The trial court sentenced Dealba to life in prison in count 1; a concurrent term of two years in count 2; and a term of three years in count 3, which the court stayed pursuant to section 654.

Dealba appealed, arguing, as relevant here, that there was insufficient evidence to support the jury’s special allegation finding that he intended to kill the victim or that he acted willfully, deliberately, and with premeditation, and that the trial court erred in failing to instruct sua sponte on attempted voluntary manslaughter. We affirmed the trial court’s judgment.

On September 30, 2018, the Governor signed Senate Bill 1437. (People v. Martinez (2019) 31 Cal.App.5th 719, 722.) “The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” (Ibid.)

In September 2019, Dealba petitioned to be resentenced under section 1170.95, using a standard form. The form contained a check list of requirements for eligibility under section 1170.95, subdivision (a). Specifically, the petitioner was required to certify that: “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. [¶] 2a. At trial, [the petitioner] was convicted of 1st or 2nd degree murder . . . . [¶] . . . [¶] 3. [The petitioner] 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.” Dealba checked all three boxes. He also checked the boxes indicating that he “did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree[,] . . . [and] was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony.” Dealba requested that counsel be appointed to represent him. Dealba attached the abstract of judgment, which reflected his conviction for attempted willful, deliberate, and premeditated murder; CALCRIM No. 601, relating to attempted deliberate and premeditated murder, as given to the jury in his case, and his handwritten statement requesting that his sentence for attempted willful, deliberate, and premeditated murder “under a natural and probable consequences [theory]” be vacated.

On September 19, 2019, the case was assigned to Judge Michael Terrell for review and ruling, and a hearing on the petition was scheduled to take place on November 20, 2019. Dealba was not appointed counsel.

On November 19, 2019, the People filed an opposition to the petition on the grounds that Dealba was never charged with, nor convicted of, first or second degree murder, and was therefore ineligible for relief under section 1170.95. The record does not include proof that the opposition was served on Dealba or counsel acting on his behalf.

The trial court held the hearing on the petition on November 20, 2019, as scheduled. Dealba was not present in court and not represented by counsel. The deputy district attorney was present. The minute order reflects that the court read and considered the petition for resentencing and the People’s opposition, and found that Dealba was ineligible for relief as a matter of law because he was convicted of attempted murder, not murder. Dealba timely appealed.

DISCUSSION

On appeal, Dealba argued that the trial court’s “engagement of a response from the District Attorney’s office without affording [Dealba] an opportunity to reply was contrary to the process outlined in Penal Code section 1170.95 and constructively denied him fundamental due process rights and assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to [the] United States Constitution and Article 1, section 15, of the California Constitution.” Dealba argued that although “the trial court’s initial summary evaluation of [Dealba’s] petition is arguably a ministerial gatekeeping function designed to weed out patently ineligible defendants, once the court accepted and considered the prosecution’s written opposition, the proceedings became adversarial and triggered [his] federal and state constitutional rights to assistance of counsel.”

We disagree with Dealba that, under the law at the time that the prosecutor’s response was filed, the court could not accept or consider the prosecutor’s response prior to appointing counsel to a petitioner. Former section 1170.95 required the prosecution to serve and file a response within 60 days of service of the petition. (Former § 1170.95, subd. (c) [“[t]he prosecutor shall file and serve a response within 60 days of service of the petition”] italics added.) We agree that courts are prohibited from holding resentencing hearings outside the presence of both a petitioner and his or her counsel. (Cal. Code Jud. Ethics, canon 3B(7) [“[a] judge shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the judge outside the presence of the parties concerning a pending . . . proceeding, and shall make reasonable efforts to avoid such communications”].) In this case, however, the error was harmless under both the state and federal standards of prejudice because Dealba was ineligible for relief as a matter of law, as we discuss post. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [prejudice results if there exists a reasonable probability of a more favorable result absent error under California Constitution]; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [prejudice results if error is not harmless beyond a reasonable doubt under United States Constitution].)

In his briefing following transfer back from the Supreme Court, Dealba asserts that the amendments to section 1170.95 effected by Senate Bill 775 apply retroactively to his case, and permit a defendant convicted of attempted murder under any theory in which malice is imputed to the defendant to petition for resentencing.

The People disagree regarding whether the amendments to section 1170.95 apply retroactively to the ruling at issue. The People argue that Dealba’s underlying criminal conviction is final, and section 1170.95’s petition-based resentencing provisions, including the amendments effected by Senate Bill 775, provide a mechanism for reopening final judgments, not a direct ameliorative provision that would trigger a presumption of retroactivity under In re Estrada (1965) 63 Cal.2d 740, 745. The People take the position that we need not decide the issue of retroactivity in this case, however, because Dealba is not eligible for relief under either version of section 1170.95. We agree.

The Courts of Appeal uniformly held that former section 1170.95 did not apply to convictions for attempted murder.[3] Although the amendments to section 1170.95 provide relief for some persons convicted of attempted murder, such eligibility is not without limitation. The revised statute states: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics added.) The plain language of the statute unambiguously extends relief to defendants convicted of attempted murder only under the natural and probable consequences doctrine. (People v. Arias (2008) 45 Cal.4th 169, 177 [“‘The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.’”].)

If we were to remand this case, the trial court would be bound to find Dealba ineligible for relief as a matter of law. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864, 866–868 [a defendant who has not been convicted under a theory of liability for which section 1170.95 provides relief is ineligible for relief as a matter of law].) Dealba would not be eligible for relief under former section 1170.95 because he was not convicted of murder. Nor would Dealba be eligible for relief under amended section 1170.95. As demonstrated by the jury instructions given at Dealba’s trial, Dealba could not have been convicted under the natural and probable consequences doctrine because the jury was not instructed on that theory of liability.

Additionally, the jury made a finding that Dealba acted with premeditation and deliberation when he attempted to murder the victim, as demonstrated by the official court records attached to his own petition. Thus, even if the trial court erred, there could be no prejudice. (See Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)

DISPOSITION

The trial court’s order denying Dealba’s petition for resentencing under section 1170.95 is affirmed.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The summary of the underlying proceedings is taken from our prior unpublished opinion in People v. Dealba (Jan. 29, 2015, B249908). We do not include a recitation of the underlying facts of the offenses as they are not necessary to our resolution of the issues.

[3] The Supreme Court granted review in the vast majority of these cases, and has transferred many of these matters back to the Courts of Appeal for reconsideration in light of Senate Bill 775. (See People v. Harris (2021) 60 Cal.App.5th 557, 566, cause transferred and opinion not citable (Cal., Dec. 29, 2021, No. S267529) 501 P.3d 634; People v. Love (2020) 55 Cal.App.5th 273, 279, cause transferred and opinion not citable (Cal. Jan. 26, 2022, No. S265445) 2022 WL 244670; People v. Alaybue (2020) 51 Cal.App.5th 207, 222–225; People v. Dennis (2020) 47 Cal.App.5th 838, 841, cause transferred and opinion not citable (Cal., Jan. 5, 2022, No. S262184) 502 P.3d 3; People v. Munoz (2019) 39 Cal.App.5th 738, 753–769, cause transferred and opinion not citable (Cal., Jan. 5, 2022, No. S258234) 502 P.3d 1; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103–1112, cause transferred and opinion not citable (Cal. 2021) 498 P.3d 88.)