P. v. Binns

Filed 5/19/21 P. v. Binns CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
KEYRON LAMONT BINNS,
Defendant and Appellant.
B301959
(Los Angeles County
Super. Ct. No. SA028021)
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Leslie A. Swain, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.

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Keyron Lamont Binns appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.95,1 contending the superior court erred in ruling
section 1170.95 did not apply to attempted murder and
summarily denying his petition without first appointing counsel.
We rejected Binns’s first argument in People v. Lopez (2019)
38 Cal.App.5th 1087, review granted November 13, 2019,
S258175 (Lopez), and his second argument in People v. Verdugo,
(2020) 44 Cal.App.5th 320, review granted March 18, 2020,
S260493 (Verdugo). Because Binns has advanced no persuasive
reason for us to reconsider our decision in either case, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Binns was convicted in 1997 of attempted murder (§§ 664,
187), carjacking (§ 215), home invasion robbery (§ 211),
kidnapping for the purpose of carjacking or robbery (§ 209) and
various other charges. In a bifurcated proceeding the court found
Binns had suffered three prior serious or violent felony
convictions within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12). This court affirmed Binns’s convictions
but remanded for resentencing. (People v. Binns (Jan. 26, 1999,
B119375) [nonpub. opn.].) On remand the court sentenced Binns
to an aggregate indeterminate state prison term of 195 years to
life. We affirmed the judgment. (People v Binns (Apr. 17, 2000,
B130456) [nonpub. opn.].)
On August 5, 2019 Binns, representing himself, petitioned
for resentencing under section 1170.95, filing both a multipage
typed document with a supporting memorandum and the
preprinted form petition used by many inmates. Binns did not
1 Statutory references are to this code.

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check the box requesting appointment of counsel on the
preprinted form.
The superior court summarily denied the petition on
September 16, 2019, ruling Binns was ineligible for resentencing
because he had not been convicted of murder. Binns filed a
timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437, the Section 1170.95 Petition
Procedure and the Right To Counsel
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal.5th 830, 842-843 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.)
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a

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process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts. The superior court
properly proceeds under subdivision (c) in two steps, “one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (People v. Verdugo, supra, 44 Cal.App.5th at p. 328,
review granted; accord, People v. Soto (2020) 51 Cal.App.5th
1043, 1054, review granted Sept. 23, 2020, S263939; People v.
Drayton (2020) 47 Cal.App.5th 965, 975; but see People v. Cooper
(2020) 54 Cal.App.5th 106, 118, review granted Nov. 10, 2020,
S264684 [section 1170.95, subdivision (c), contemplates only
one prima facie review before an order to show cause issues].)
As to the first step, we explained in Verdugo, “[B]ecause a
petitioner is not eligible for relief under section 1170.95 unless he
or she was convicted of first or second degree murder based on a
charging document that permitted the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the
court must at least examine the complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment. Based on a threshold review of these documents, the
court can dismiss any petition filed by an individual who was not
actually convicted of first or second degree murder.” (Verdugo,
supra, 44 Cal.App.5th at pp. 329-330, review granted.)

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A petitioner is entitled to appointment of counsel, we held,
only if the superior court does not determine he or she is
ineligible for relief as a matter of law at this first subdivision (c)
prima facie review. (Verdugo, supra, 44 Cal.App.5th at p. 332,
review granted; accord, People v. York (2020) 54 Cal.App.5th 250,
262-263, review granted Nov. 18, 2020, S264954; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020,
S260598.) The court in People v. Cooper, supra, 54 Cal.App.5th
106, review granted, disagreed that section 1170.95,
subdivision (c), contemplates two separate steps and held a
petitioner is entitled to counsel upon the filing of a facially
sufficient petition for relief that requests counsel be appointed.
(Cooper, at p. 123.)
We do not find persuasive the Cooper court’s interpretation
of section 1170.95, subdivision (c). Unless we receive different
instructions from the Supreme Court, we adhere to the analysis
set forth in Verdugo and the cases that have followed it.
Accordingly, because the record of conviction established as a
matter of law that Binns was not convicted of first or second
degree murder, the superior court properly denied his petition
without first appointing counsel.
2. The Superior Court Did Not Err in Summarily Denying
Binns’s Petition for Resentencing
In Lopez, supra, 38 Cal.App.5th at page 1104, review
granted, we held Senate Bill 1437 did not modify the law
regarding accomplice liability for attempted murder, explaining
there was nothing ambiguous in the language of the legislation,
which, in addition to omitting any reference to attempted
murder, specifically identified its purpose as the need “to amend
the felony murder rule and the natural and probable

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consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
We added that the Legislature’s intent to exclude crimes other
than murder was underscored by the language of section 1170.95,
subdivision (a), which authorizes only those individuals
“convicted of felony murder or murder under a natural and
probable consequences theory” to petition for relief and requires
the petition be directed to “the petitioner’s murder conviction.”
(Lopez, at pp. 1104-1105; accord, People v. Love (2020)
55 Cal.App.5th 273, 279, review granted Dec. 16, 2020, S265445
[Senate Bill 1437 does not eliminate the natural and probable
consequences theory for attempted murder].)
As Binns recognizes, in Lopez we also rejected the
argument he makes that limiting the reform of aider and abettor
liability under the natural and probable consequences doctrine to
instances where the nontarget offense is murder violates equal
protection. We first held individuals convicted of murder and
those convicted of attempted murder (or other nontarget offenses)
under the natural and probable consequences doctrine are not
similarly situated. (Lopez, supra, 38 Cal.App.5th at pp. 1107-
1108.) Even if they were, we continued, the limitation of Senate
Bill 1437 to individuals convicted of murder under the natural
and probable consequences doctrine is subject to rational basis
review (Lopez, at p. 1110), and constitutionally adequate,
plausible reasons exist for the Legislature’s decision (id. at
p. 1111). Nothing in Binns’s briefing persuades us that our
constitutional analysis in Lopez should be reconsidered.

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Binns points out that our colleagues in the Fifth District in
People v. Larios (2019) 42 Cal.App.5th 956, review granted
February 26, 2020, S259983, People v. Medrano (2019)
42 Cal.App.5th 1001, review granted March 11, 2020, S259948,
and People v. Sanchez (2020) 46 Cal.App.5th 637, review granted
June 10, 2020, S261768 reached a contrary conclusion, holding
Senate Bill 1437’s amendment to section 188’s definition of
malice applied not only to murder but also to attempted murder
under the natural and probable consequences theory of liability.
(Larios, at pp. 966-967; Medrano, at p. 1015; Sanchez, at p. 642.)
However this split in authority regarding the breadth of
Senate Bill 1437’s prospective modification of the law of
accomplice liability may be resolved,2 no court has held the
remedial provisions of section 1170.95 apply to a petitioner
seeking resentencing for a final conviction of attempted murder.
(See, e.g., People v. Harris (2021) 60 Cal.App.5th 557, 565-566,
review granted Apr. 28, 2021, S267802 [“[w]e join the other
appellate courts that have concluded that relief under
section 1170.95 is not available to those convicted of attempted
2 In granting review in Lopez, supra, S258175, the Supreme
Court directed that briefing and argument be limited to the
following issues: “(1) Does Senate Bill No. 1437 (Stats. 2018,
ch. 1015) apply to attempted murder liability under the natural
and probable consequences doctrine? (2) In order to convict an
aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should People v. Favor (2012) 54 Cal.4th
868 be reconsidered in light of Alleyne v. United States (2013)
570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”

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murder”]; People v. Love, supra, 55 Cal.App.5th at p. 292, review
granted [section 1170.95’s “mechanism for retroactive relief
applies only to persons seeking to vacate a conviction for
‘murder’; it says nothing about attempted murder”]; People v.
Larios, supra, 42 Cal.App.5th at p. 970, review granted [“No
language in section 1170.95 references relief to persons convicted
of attempted murder. And, as noted in Lopez, the legislative
history of Senate Bill 1437 supports the conclusion
section 1170.95 was intended to apply only to persons convicted
of murder”].) This unanimity is not surprising given the express
language of section 1170.95, subdivision (a), which, as we
emphasized in Lopez, supra, 38 Cal.App.5th at pages 1104
through 1105, review granted, authorizes resentencing relief only
for individuals convicted of murder.
As Binns’s petition concedes and the record of conviction
confirms, Binns was convicted of attempted murder, not first or
second degree murder. As such, his ineligibility for resentencing
under section 1170.95 was established as a matter of law. The
court did not err in summarily denying the petition.
DISPOSITION
The order denying Binns’s petition for resentencing is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.

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