P. v. Prado

Filed 12/14/20 P. v. Prado CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRES PRADO,
Defendant and Appellant.
2d Crim. No. B304660
(Super. Ct. No. BA379833)
(Los Angeles County)
Penal Code1 section 1170.95 allows a person convicted of
felony murder or murder under a natural or probable
consequences theory to petition to have his or her conviction
vacated. Here we hold that section 1170.95 does not apply to a
person convicted of attempted murder or manslaughter. Because
the appellant was convicted of attempted murder and
manslaughter, we affirm the trial court’s denial of the petition.
1All statutory references are to the Penal Code.

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FACTS
In July 2014, Andres Prado pled no contest to attempted
murder (§§ 187, subd. (a), 664, subd. (a)) and voluntary
manslaughter (§ 192, subd. (a)). He admitted a gang
enhancement as to both counts (§ 186.22, subd. (b)(1)(C)) and a
personal use of a firearm enhancement as to the manslaughter
count (§ 12022.5, subd. (a)). The trial court sentenced him to an
aggregate term of 36 years 11 months.
In January 2019, Prado petitioned for resentencing
pursuant to section 1170.95. In his petition he falsely stated
under penalty of perjury that he had been convicted of first or
second degree murder. The trial court summarily denied the
petition because he was not convicted of murder.
DISCUSSION
I
Legislative Intent
Section 1170.95 subdivision (a) provides:
“(a) A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
“(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.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.

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“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Italics added.)
In interpreting a statute, we look first to the words the
Legislature used; if the language is not ambiguous, the plain
meaning of the language governs. (People v. Colbert (2019) 6
Cal.5th 596, 603.) Here the language is not ambiguous. The
statute applies only to those convicted of murder. Section
1170.95 does not apply to Prado because he was not convicted of
murder. Neither attempted murder nor manslaughter
constitutes a murder.
Prado argues the Legislature recently amended the
definition of murder. Subdivision (a)(3) was added to section 188.
(Stats. 2018, ch. 1015, § 2.) The subdivision provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) Prado claims that
by changing the definition of murder, the Legislature also
changed the definition of attempted murder. (People v. Larios
(2019) 42 Cal.App.5th 956, 967-968, review granted Feb. 26,
2020, No. S259983 [changes in section 188 necessarily apply to
attempted murder], disapproving People v. Lopez (2019) 38
Cal.App.5th 1087, review granted Nov. 13, 2019, No. S258175.)
Even if Prado’s convictions were not final, he would not be
entitled to relief under section 1170.95. Thus, in People v.
Medrano (2019) 42 Cal.App.5th 1001, 1018, review granted
March 11, 2020, No. S259948, the court held that a defendant
whose attempted murder conviction was not final could raise the
changes in section 188 on direct appeal, but could not obtain

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relief under section 1170.95 because he had not been convicted of
murder.
Prado argues that we should not give the absence of
attempted murder in section 1170.95 undue significance. He
points out that attempted murder is a lesser included offense of
murder. (Citing People v. Davidson (2008) 159 Cal.App.4th 205,
210.) He cites People v. Barrajas (1998) 62 Cal.App.4th 926, 930,
for the proposition that remedial legislation normally applies to
lesser included offenses. Barrajas involved former sections 1000
to 1000.5 that allowed pre-trial diversion for defendants charged
with specified offenses. The defendant was charged with an
attempt to commit a specified offense, possession of
methamphetamine. The court concluded the defendant was
eligible for diversion even though the statute did not mention
attempt.
The diversion statutes considered in Barrajas expressly
excluded crimes of violence or threatened violence. (People v.
Barrajas, supra, 62 Cal.App.4th at p. 929, fn. 3.) It is one thing
to liberally construe a statute involving nonviolent drug offenses;
it is quite another to liberally construe a statute involving
murder. We presume that when the Legislature enacts a statute
that allows the vacation of a murder conviction, it speaks with
precision. It does not intend to allow the vacation of convictions
for crimes not mentioned in the statute.
Prado’s reliance on People v. King (1993) 5 Cal.4th 59 is
also misplaced. In King, the statute allowed defendants who
were between 16 and 18 years old when they committed murder
and were tried as adults to be committed to the California Youth
Authority (CYA). The question was whether the statute also
applied to those convicted of attempted murder. Our Supreme

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Court’s analysis involved one of its prior decisions, a change in
the sentence for premeditated attempted murder from a
determinate to an indeterminate term and a statute that
partially abrogated the court’s prior decision. Our Supreme
Court concluded that “the only rational interpretation of the
legislative intent” is that persons between 16 and 18 years old
who merely attempt murder are eligible for CYA commitment.
(Id. at p. 69.)
The application of section 1170.95 requires no such complex
analysis. The statute is clear on its face. Application of the
statute to attempted murder is not “the only rational
interpretation of the legislative intent.”
The Legislature is well aware that there are homicide
crimes other than murder, such as attempted murder and
manslaughter. Had the Legislature intended section 1170.95 to
apply to those crimes, it would have stated so in the statute. It
did not. The question whether section 1170.95 applies to
attempted murder is currently before our Supreme Court. But
we agree with other Courts of Appeal that the section does not
apply to attempted murder. (See, e.g., People v. Larios, supra, 42
Cal.App.5th at p. 969; People v. Medrano, supra, 42 Cal.App.5th
at p. 1018.) Neither does the section apply to manslaughter.
(People v. Cervantes (2020) 44 Cal.App.5th 884, 887.)
Prado argues the failure to apply section 1170.95 to
attempted murder and manslaughter would lead to absurd
results. But the literal meaning of the words of a statute may be
disregarded to avoid absurd results only in extreme cases.
(People v Alaybue (2020) 51 Cal.App.5th 207, 224.) To justify
departing from the literal meaning of the words of a statute, the
results produced must be so unreasonable the Legislature could

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not have intended them. (Ibid.) That is not the case here. The
Legislature could have reasonably concluded that the need to
address sentencing reform was more appropriately directed at
murder than attempted murder or manslaughter. The
punishment for attempted murder and manslaughter is far less
than that for murder. (Ibid.) That in a particular case the
statute may produce anomalous results does not justify departing
from the legislative intent reflected in the plain words of the
statute.
II
Equal Protection and Due Process
Prado contends that if section 1170.95 does not apply to
attempted murder and manslaughter, it violates equal protection
and due process.
The equal protection clause (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7, subd. (a)) requires those who are similarly
situated with respect to a law’s legitimate purposes be treated
equally. (People v. Brown (2012) 54 Cal.4th 314, 328.) Thus, the
first step in an equal protection analysis is to determine whether
the defendant is similarly situated with those who are entitled to
the statutory benefit. (People v. Cervantes, supra, 44 Cal.App.5th
at p. 888.)
Here persons convicted of attempted murder and
manslaughter are not similarly situated with those convicted of
murder. They are different crimes with different attendant
punishments. When the Legislature reforms one area of the law,
it is not required to reform other areas of the law. (People v.
Cervantes, supra, 44 Cal.App.5th at p. 888.) The Legislature’s
decision to reform a particular aspect of the law of murder does
not require it to make wholesale changes in the law of homicide.

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The decision not to include attempted murder and manslaughter
in section 1170.95 falls within the Legislature’s “line-drawing”
authority as a rational choice that is not constitutionally
prohibited. (Cervantes, at p. 888.)
We also reject Prado’s claim that he was denied substantive
due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7,
15.) Substantive due process requires a rational relationship
between the objectives of a legislative enactment and the
methods chosen to achieve those objectives. (People v. Cervantes,
supra, 44 Cal.App.5th at p. 889.) Here the objective of section
1170.95 is to eliminate murder convictions obtained under felony
murder and the natural and probable consequences theory.
Section 1170.95 achieves that objective.
The judgment (denial of a petition pursuant to section
1170.95) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.

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William C. Ryan, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, 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, Assistant
Attorney General, Charles S. Lee and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.

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