P. v. Devlin

Filed 5/29/20 P. v. Devlin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
PAUL DEVLIN,
Defendant and Appellant.
B297848
(Los Angeles County
Super. Ct. No. SA039719)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven Vansicklen, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Idan Ivri and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________

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2
Paul Devlin filed a petition in the superior court for
resentencing under Penal Code section 1170.95 and requested the
appointment of counsel.1 The court found that he failed to allege
facts necessary for relief under that statute and was not eligible
for relief as a matter of law because he had not been convicted of
murder. The court therefore denied the petition without
appointing counsel or holding an evidentiary hearing. Devlin
contends that section 1170.95 should apply to convictions for
attempted murder, and that holding otherwise violates due
process and his right to be free from cruel and unusual
punishment.
We affirm.2
BACKGROUND
In 2001, a jury convicted Devlin of attempted murder,
residential robbery, criminal threats, and unlawfully driving or
taking a vehicle, and the trial court found he had committed two
prior serious or violent felonies. He was sentenced to 50 years to
life in prison.
On February 13, 2019, Devlin filed petition for
resentencing pursuant to section 1170.95, which offers
resentencing to those convicted of murder under specified
theories. The trial court summarily denied the petition without
appointing counsel, finding Devlin was ineligible for relief
because he had not been convicted of murder.
1 Undesignated statutory references will be to the Penal
Code.
2 Respondent’s motion to take judicial notice of our prior
opinion in Devlin’s direct appeal in this matter is granted.

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DISCUSSION
Devlin contends section 1170.95 should apply to convictions
for attempted murder. Every court that has considered this issue
has rejected it. (See People v. Lopez (2019) 38 Cal.App.5th 1087,
1105, review granted Nov. 13, 2019, S258175; People v. Munoz
(2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019,
S258234; People v. Larios (2019) 42 Cal.App.5th 956, 970, review
granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42
Cal.App.5th 1001, 1017-1018, review granted Mar. 11, 2020,
S259948.) We agree with these decisions on this point and
therefore reject the argument.
Devlin further contends that the exclusion of attempted
murder from eligibility for relief under section 1170.95 violates
due process and the state and federal proscriptions against cruel
and unusual punishments. (U.S. Const., 8th & 14th Amends.;
Cal. Const., art. I, § 17.) This is so, he argues, because a
punishment scheme that treats similarly situated individuals
differently based on arbitrary or capricious factors violates due
process and constitutes cruel and unusual punishment. (Devlin
raises no Equal Protection concern.) The argument is without
merit.
A statutory scheme that might in some circumstances levy
greater punishment on a lesser offense, such as attempted
murder, than on a greater offense, such as murder, is not
necessarily arbitrary or irrational. “ ‘A classification is not
arbitrary or irrational simply because there is an “imperfect fit
between means and ends” ’ [citations], or ‘because it may be “to
some extent both underinclusive and overinclusive.” ’ ” (Johnson
v. Department of Justice (2015) 60 Cal.4th 871, 887.) “Under the
laws then in effect, defendant received a valid indeterminate

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sentence. There was nothing unusual about his sentence, as it
was not one ‘that in the ordinary course of events is not
inflicted.’ ” (People v. Smith (2015) 234 Cal.App.4th 1460, 1468
[affirming denial of a petition for resentencing under Proposition
36].) The Legislature’s passage of a law making a procedure for
resentencing available to other defendants that is not available to
Devlin “does not retroactively convert defendant’s otherwise
lawful sentence into a constitutionally ‘unusual’ one.” (Ibid.)
Devlin contends the court erred by denying him counsel
and a hearing on his petition. The right to counsel under section
1170.95, however, does not attach until the petitioner makes a
prima facie showing of eligibility under the statute (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted
Mar. 18, 2020, S260598; cf. People v. Verdugo (2020) 44
Cal.App.5th 320, 328, review granted Mar. 18, 2020, S260493).
Devlin failed to demonstrate eligibility under the statute.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J. WHITE, 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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