P. v. Arriola

Filed 4/1/20 P. v. Arriola CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERT ARRIOLA,
Defendant and Appellant.
B297120
(Los Angeles County
Super. Ct. No. PA030665)
APPEAL from an order of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Affirmed.
John L. Staley, 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, Supervising
Deputy Attorney General, Idan Ivri, Deputy Attorney General,
for Plaintiff and Respondent.
____________________________

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Based on his participation in a series of gang-related
shootings on July 12, 1998, Albert Arriola was convicted of,
among other crimes, four counts of attempted murder. (People v.
Arriola (July 28, 2000, B131255) at pp. 2-4 [nonpub. opn.].)
Pursuant to Senate Bill No. 1437, which enacted Penal Code
section 1170.95, Arriola petitioned the trial court to vacate his
sentences for attempted murder and resentence him on his
remaining counts.1 The trial court denied the petition on the
ground that attempted murder is not a qualifying offense for
relief under section 1170.95. We agree with the trial court and
affirm.
DISCUSSION
In People v. Chiu (2014) 59 Cal.4th 155, 166 (Chiu) the
Supreme Court held that a defendant could not be convicted of
first degree murder on the basis of the natural and probable
consequences doctrine, reasoning that the mental state required
for first degree murder, including “elements of willfulness,
premeditation, and deliberation” are “uniquely subjective and
personal.” A defendant could not be guilty of first degree murder
unless he actually displayed that mental state. (Ibid.) The Court
in Chiu held that defendants could still be guilty of second degree
murder on a natural and probable consequences theory, however.
(Ibid.)
In 2018, the Legislature enacted Senate Bill No. 1437,
which moved beyond Chiu and eliminated the natural and
probable consequences doctrine as a theory of guilt for second
degree murder. (See Sen. Bill No. 1437 (2017-2018 Reg. Sess.) §
2 [amending section 188].) Under the new law, “in order to be
1 Further statutory references are to the Penal Code.

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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),
as amended by Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 2.)2
The bill also created a procedure by which a defendant convicted
of murder under a natural and probable consequences theory
may petition for relief in the trial court. (See Sen. Bill No. 1437
(2017-2018 Reg. Sess.) § 4 [enacting section 1170.95].) Arriola
contends that Senate Bill No. 1437 also abolishes the natural and
probable consequences doctrine in cases of attempted murder.
We disagree.
Senate Bill No. 1437 unambiguously repeals the natural
and probable consequences doctrine with respect to murder, but
not attempted murder. As the court explained in People v. Lopez
(2019) 38 Cal.App.5th 1087, 1113 (Lopez) (review granted), the
language of Senate Bill No. 1437 refers only to murder, not
attempted murder. Furthermore, the text “expressly identifies
its purpose as the need ‘to amend the felony murder rule and the
natural and probable 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
2 The only exception is in cases of felony murder, in which a
defendant who participated in one of certain enumerated felonies
that resulted in the death of a victim may still be guilty of
murder even if he did not act with malice aforethought. (See §§
188, subd. (a)(3), 189, subds. (a) & (e).) Even in those cases,
however, under Senate Bill No. 1437, a defendant is not guilty of
murder merely by participating in a felony; instead, he must have
either acted with reckless indifference to human life or personally
solicited or participated in the killing. (See § 189, subd. (e), as
amended by Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 3.)

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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).) Had the Legislature meant to bar
convictions for attempted murder under the natural and probable
consequences doctrine, it could . . . have done so.” (Lopez, supra,
at p. 1104.) Its failure to refer to attempted murder in the
legislation reflects a decision not to alter the natural and
probable consequences doctrine in cases of attempted murder.
(Ibid.; accord, People v. Munoz (2019) 39 Cal.App.5th 738, 753-
760, review granted Nov. 26, 2019, S258234.)
Arriola contends we should read the statute broadly to
include attempted murder. He acknowledges that “[s]tatutes are
generally construed according to their plain” meaning, but argues
that the statute’s plain meaning would yield the absurd
consequence of attempted murderers being penalized more
strictly than murderers. We are aware that our interpretation of
Senate Bill No. 1437 leads to the strange consequence that a
defendant who commits a crime in which a codefendant attacks a
victim may now receive a lesser sentence if the victim dies than if
he survives. Indeed, in a 1993 case, our Supreme Court warned
against imposing greater punishment for attempted murder than
for murder: A “[d]efendant should not be penalized because one
of his victims survived; he should not be made to regret not
applying the coup de grâce to that victim.” (People v. King (1993)
5 Cal.4th 59, 69.)
But Senate Bill No. 1437 applies only to those who did not
directly take part in a murder. If a defendant is in a position to
decide whether or not to “apply[ ] the coup de grâce to [a] victim”
(People v. King, supra, 5 Cal.4th at p. 69), he would be guilty as a
perpetrator or direct aider and abettor, not under a natural and

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probable consequences theory. More importantly, any reasonable
interpretation of Senate Bill No. 1437 requires us to conclude
that the Legislature intended to provide relief to certain
defendants convicted of murder, but not those convicted of what
we ordinarily consider lesser offenses. Under any interpretation
of Senate Bill No. 1437, the natural and probable consequences
doctrine remains in effect for many offenses that carry lengthy
prison sentences.
Nor do we agree with Arriola’s contention that the
application of the natural and probable consequences doctrine to
attempted murder violates his constitutional right to equal
protection under the law. “ ‘The first prerequisite to a
meritorious claim under the equal protection clause is a showing
that the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.’
[Citations.] This initial inquiry is not whether persons are
similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ ” (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253.) “If the two groups
are not similarly situated or are not being treated differently,
then there can be no equal protection violation.” (Lopez, supra,
38 Cal.App.5th at p. 1108.)
Arriola’s contention fails because “those charged with, or
found guilty of, murder are, by definition, not similarly situated
with individuals who face other, less serious charges.” (Lopez,
supra, 38 Cal.App.5th at p. 1109.) And although they are closely
related, “[m]urder and attempted murder are separate crimes.”
(Ibid., citing People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“ ‘[i]t
is well established that “ ‘[a]n attempt is an offense “separate”
and “distinct” from the completed crime’ ” ’ ”].) The Legislature

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unequivocally singled out murder as the target of reform in
Senate Bill No. 1437. The text of the bill states that its purpose
was “to more equitably sentence offenders in accordance with
their involvement in homicides.” (Sen. Bill No. 1437 (2017-2018
Reg. Sess.) § 1(b).) Murder requires a much greater sentence
than attempted murder, with a term of 15 years to life for second
degree murder (see § 190, subd. (a)), as opposed to a five-year
minimum for attempted murder. (See § 664, subd. (a).) “The
Legislature could have reasonably concluded reform in murder
cases ‘was more crucial or imperative’ ” (Lopez, supra, 38
Cal.App.5th at p. 1112) and limited the law to those cases in
order to preserve the limited resources of the judicial system.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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