P. v. Dealba

Filed 11/16/20 P. v. Dealba CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and
Respondent,
v.
DANIEL DEALBA,
Defendant and
Appellant.
B303584
(Los Angeles County
Super. Ct. No. PA073050)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Affirmed.
James Koester, 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, Kristen J. Inberg and

-- 1 of 8 --

2
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________
Defendant and appellant Daniel Dealba appeals from
the denial of his petition for resentencing pursuant to Penal
Code section 1170.951 and Senate Bill No. 1437 (Senate Bill
1437). We affirm the trial court’s order denying Dealba’s
petition.
PROCEDURAL HISTORY2
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.
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from our prior unpublished opinion in People v. Dealba (Jan.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.

-- 2 of 8 --

3
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.” (Id. at pp. 722–723.)
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

-- 3 of 8 --

4
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

-- 4 of 8 --

5
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 argues 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 argues 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

-- 5 of 8 --

6
counsel.” He asserts, that, given the uncertainty in the law
with respect to whether 1170.95 applies to convictions for
attempted murder, competent counsel could convince the
court of his eligibility.
We disagree with Dealba that the court may not accept
or consider the prosecutor’s response prior to appointing
counsel to a petitioner. Section 1170.95 requires the
prosecution to serve and file a response within 60 days of
service of the petition. (§ 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. (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].)
Contrary to Dealba’s assertions, whether section
1170.95 applies to a defendant convicted of attempted

-- 6 of 8 --

7
murder is not an area of unsettled law. The plain language
of section 1170.95 applies only to murder convictions by trial
or by plea: “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 . . . .” (§ 1170.95,
subd. (a); see People v. Cervantes (2020) 44 Cal.App.5th 884,
887; People v. Medrano (2019) 42 Cal.App.5th 1001, 1016–
1018, review granted March 11, 2020, S259948 (Medrano);
People v. Larios (2019) 42 Cal.App.5th 956, 969–970, review
granted Feb. 26, 2020, S259983 (Larios); People v. Munoz
(2019) 39 Cal.App.5th 738, 754, review granted Nov. 26,
2019, S258234 (Munoz); People v. Lopez (2019) 38
Cal.App.5th 1087, 1104–1105, review granted Nov. 13, 2019,
S258175 (Lopez).)
Moreover, none of the cases upon which Dealba relies
support his position. While Medrano, supra, 42 Cal.App.5th
1001; Larios, supra, 42 Cal.App.5th 956; and People v.
Sanchez (2020) 46 Cal.App.5th 637, review granted June 10,
2020, S261768 (Sanchez), all conclude that Senate Bill 1437
applies to attempted murder on direct appeal, Medrano and
Larios have also held that defendants convicted of attempted
murder are not eligible for resentencing under section
1170.95. (Medrano, supra, at pp. 1015–1018; Larios, supra,
at pp. 968–970.) The court in Sanchez did not address the
issue. Several other courts have come to the conclusion that
section 1170.95 does not apply to attempted murder. (See,
e.g., Munoz, supra, 39 Cal.App.5th 738; Lopez, supra, 38

-- 7 of 8 --

8
Cal.App.5th 1087; People v. Dennis (2020) 47 Cal.App.5th
838, review granted July 29, 2020, S262184.) No court to
date has held that section 1170.95 provides relief for
defendants convicted of attempted murder. We agree with
the result in these cases.
If we were to remand this case, the trial court would be
bound to find Dealba ineligible for relief as a matter of law
because he was convicted of attempted premeditated and
deliberate murder, 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.

-- 8 of 8 --