P. v. Higgs

Filed 4/28/21 P. v. Higgs CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDEN TREVAUGHN
HIGGS,
Defendant and Appellant.
B305937
(Los Angeles County
Super. Ct. No. PA071844)
APPEAL from an order of the Superior Court of Los
Angeles County. David B. Gelfound, Judge. Affirmed.
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 William H. Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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In April 2015, defendant and appellant Branden
Trevaughn Higgs pled no contest to four counts of attempted
murder (Pen. Code, § 187, subd. (a), § 664) and one count of
voluntary manslaughter (§ 192, subd. (a)) and admitted a firearm
use allegation (§ 12022, subd. (a)(1)). The court sentenced
defendant to a term of 16 years eight months.
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In early 2020, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95. On March 9, 2020, the
trial court summarily denied defendant’s petition without
appointing counsel. The trial court concluded defendant had not
stated a prima facie case for relief because he was convicted of
attempted murder and voluntary manslaughter, not murder.
Defendant appealed. He contends the trial court’s
summary denial of his resentencing petition was in error and
violated his rights to due process, equal protection and the
assistance of counsel. He argues the statutory amendments
effected by Senate Bill 1437 should be broadly interpreted to
cover attempted murder and voluntary manslaughter, and that it
was structural error for the trial court to deny his petition
without first appointing counsel. We disagree.
“Senate Bill 1437 was enacted 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 kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.’

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(Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
Penal Code section 1170.95, subdivision (a) provides, in
plain language, that only persons “convicted of felony murder or
murder under a natural and probable consequences theory” may
file a petition seeking resentencing. “When we interpret statutes,
giving effect to legislative purpose is the touchstone of our
mission.” (People v. Valencia (2017) 3 Cal.5th 347, 409.) “The
text of the statute is integral to our understanding of the
statute’s purpose.” (Ibid.) “We must take ‘the language . . . as it
was passed into law, and [we] must, if possible without doing
violence to the language and spirit of the law, interpret it so as to
harmonize and give effect to all its provisions.’ ” (Id. at pp. 409–
410.)
The Courts of Appeal are divided on the question of
whether the statutory language may be interpreted as
encompassing convictions for attempted murder. Our Supreme
Court is currently considering the issue. (Compare People v.
Lopez (2019) 38 Cal.App.5th 1087 [attempted murder not within
scope of statute], review granted Nov. 13, 2019, S258175; People
v. Muñoz (2019) 39 Cal.App.5th 738 [same], review granted
Nov. 26, 2019, S258234; People v. Dennis (2020) 47 Cal.App.5th
838 [same], review granted July 29, 2020, S262184 & People v.
Love (2020) 55 Cal.App.5th 273 [same], review granted Dec. 16,
2020, S265445, with People v. Larios (2019) 42 Cal.App.5th 956
[concluding Senate Bill 1437 abrogated the natural and probable
consequences doctrine for attempted murder but that
section 1170.95 does not provide relief for attempted murder
convictions that have become final], review granted Feb. 26,
2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001

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[amended statutory language applies to attempted murder and
retroactive relief provisions are applicable to nonfinal attempted
murder convictions], review granted Mar. 11, 2020, S259948 &
People v. Sanchez (2020) 46 Cal.App.5th 637, review granted
June 10, 2020, S261768 [same].)
Pending guidance from the Supreme Court, we believe
Lopez, Muñoz, Dennis and Love are the better reasoned and
adopt their analyses. The trial court did not err in concluding
defendant was not eligible for sentencing relief as to his
convictions for attempted murder, and the court’s denial of his
petition did not violate defendant’s equal protection rights.
We are also not persuaded by defendant’s statutory
interpretation arguments regarding voluntary manslaughter.
Several courts have already rejected the argument that relief
under Penal Code section 1170.95 is available for voluntary
manslaughter convictions. (People v. Turner (2020)
45 Cal.App.5th 428, review den. May 13, 2020, S261425; People v.
Flores (2020) 44 Cal.App.5th 985, review den. Apr. 29, 2020,
S261252 & People v. Cervantes (2020) 44 Cal.App.5th 884, review
den. Apr. 15, 2020, S260440.) We need not add further to the
discussion. We adopt the analyses of Turner, Flores and
Cervantes in rejecting defendant’s arguments.
Finally, we find no error in the trial court’s decision to
summarily deny defendant’s petition without first appointing him
counsel. Penal Code section 1170.95, subdivision (c) provides the
court “shall review the petition and determine if the petitioner
has made a prima facie showing that the petitioner falls within
the provisions of this section.” The statutory language, read in
context, contemplates an initial eligibility determination by the
court. Several courts have interpreted the statutory language

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and have concluded that a defendant seeking resentencing is
entitled to appointment of counsel only after demonstrating a
prima facie case. The Supreme Court is considering the issue.
(See, e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, review
granted Mar. 18, 2020, S260598; People v. Cornelius (2020)
44 Cal.App.5th 54, review granted Mar. 18, 2020, S260410;
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
Mar. 18, 2020, S260493 & People v. Tarkington (2020)
49 Cal.App.5th 892, review granted Aug. 12, 2020, S263219.)
Pending guidance from the Supreme Court, we adopt the
persuasive analyses in these decisions. The statutory framework
supports the trial court’s authority to make an initial eligibility
determination as a matter of law without appointing defendant
counsel. Further, we are not persuaded to depart from our
decision in People v. Falcon (2020) 57 Cal.App.5th 272, review
granted January 27, 2021, S266041. The denial of counsel did
not infringe on defendant’s constitutional rights or amount to
structural error. (Id. at p. 279 [Penal Code “section 1170.95 is an
act of lenity. If the trial court acted erroneously in declining to
appoint counsel, that error does not constitute a violation of
appellant’s constitutional rights.”].)
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.

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