P. v. Austin

Filed 11/25/20 P. v. Austin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 OF THE STATE
OF CALIFORNIA,
Plaintiff and Respondent,
v.
LENARD AUSTIN, JR.,
Defendant and Appellant.
2d Crim. No. B301152
(Super. Ct. No. 1027776)
(Santa Barbara County)
Lenard Austin, Jr. appeals the trial court’s postjudgment
order summarily denying his petition for resentencing under
Penal Code1 section 1170.95. Austin contends the court erred in
finding he was ineligible for resentencing under section 1170.95
because he was convicted of attempted murder (§§ 187, 664)
rather than murder. We affirm.
1 All statutory references are to the Penal Code unless
otherwise stated.

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FACTS AND PROCEDURAL HISTORY
The relevant facts are recited verbatim from our 2003
unpublished opinion affirming the convictions of Austin and his
codefendant Steven Lee. (People v. Lee (June 30, 2003, B154641)
[nonpub. opn.].) “Lee and Austin entered Anthony’s Jewelers in
Santa Maria wearing wigs, hats, fake beards, heavy jackets, and
black boots. When the owner’s son, Jeffrey Shreves, asked if he
could help them, they said they were just browsing. After looking
into all the display cases, they left. Shortly thereafter, appellants
returned, feigning interest in a bracelet.
“The third time appellants entered, they asked to speak to
the store’s owner, Anthony Chaparro. Chaparro became
frightened and asked his son to write down a license plate
number if anything should happen. Chaparro asked two other
employees to stay near panic buttons. Chaparro asked
appellants if he could help them. Appellants did not respond, so
Chaparro asked appellants, ‘What the fuck do you want?’ Austin
replied, ‘fuck you.’ Chaparro retorted, ‘get the fuck out of my
store.’
“As appellants appeared to be leaving the store, Lee
whirled around, grabbed Shreves from behind, and threw him to
the ground. Lee pulled a semiautomatic gun from his jacket,
pointed it at Shreves, dragged him from the front of the store,
and handcuffed him. The receptionist, Misty Sinay, pressed a
silent alarm and ducked down. Chaparro fled out the back door
and called the police. Estiban Rodriguez, the jewelry repairman,
observed this activity on his television monitor. He pushed his
panic button and hid in the back of the store.

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“Lee demanded that Shreves hand over the keys and
retrieve the tape from the surveillance system. Shreves was
scared and responded he did not have the keys.
“Lee pointed his gun at Danielle Pfaendler, the assistant
manager, who was crouching underneath a desk nearby. Lee told
Pfaendler to give him the three rings that were on her fingers,
directed her to lie down next to Shreves, and handcuffed her.
“Pfaendler saw one of the men bring Sinay into the back
room to retrieve the security tape for Lee, but Sinay did not know
how to do it. When she attempted to extract the tape, it jammed.
Austin grabbed her arm, pointed his revolver at her, and yelled at
her to open the glass jewelry cases. After telling Austin she did
not have the keys to open the jewelry cases, she saw him smash
open the cases with the butt of his gun and scoop up jewelry with
his hands. Shreves also saw appellants scooping up jewelry into
their arms. Lee told Sinay to lie on the ground next to Shreves
and Pfaendler, and he handcuffed her.
“After asking Shreves and Pfaendler where the cash
drawer was, Lee took some money and repaired jewelry from two
drawers. One of the men took Shreves’ wallet from his back
pocket as they ran towards the back door. As they reached the
back door, appellants saw Rodriguez and pointed a gun at him.
Chaparro saw appellants flee out the back door as he was talking
to a police dispatcher on a cell phone outside a nearby restaurant.
“The police converged on the scene, ran after appellants,
and shouted at them to stop. Officer McCray, who was unarmed,
nearly ran into Lee. Officers McCray and Streker, and other
witnesses, testified that Lee pointed a gun at McCray’s head and
shot once from a distance of about five feet. Officer McCray
flinched, jumped to his left, fell to the ground and sought cover

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behind Streker’s motorcycle. Officer Streker screamed at
McCray, asking if he had been hit. Officer Streker thought Lee
pointed his 9 millimeter gun at him, too.
“Police continued to yell at Lee to stop, but he continued to
run while firing another round at the officers. Police shot at Lee
several times, striking him as he jumped a picket fence. The
wounded Lee fell to the ground.
“After Lee shot at the police, Lee and Austin split up.
Austin ran between two houses where he disappeared from view.
A neighbor saw Austin throw a large revolver away. Officers
found Austin hiding in a garbage can and arrested him as he
tried to escape. Officer McCray found a .44 Dan Wesson revolver
with five live rounds in it lying in the center median of the street
near where Austin was arrested. The gun had been recently
fired, but no shell casings were found in the vicinity.
“While patting down Austin, police found many pieces of
jewelry in his pockets with tags from Anthony’s Jewelers on
them. The police found more items of jewelry, two wigs, a metal
briefcase, and a loaded Daewoo semiautomatic pistol near where
Lee and Austin were captured. Jewelry was also found on the
ground behind the store.
“When police approached Lee, who was lying on the ground,
they found a Beretta semiautomatic pistol about a foot away from
his right hand. The safety of the Beretta was off, no round was in
the chamber, and its magazine was found at the base of the fence.
A shell casing was found nearby. The casing did not match any
of the munitions issued to the policemen who fired at the scene,
but it did match some of those within the magazine of Lee’s
Beretta.”

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A jury convicted Austin of attempted murder of a peace
officer (§§ 187, subd. (a), 664), assault on a peace officer (§ 245,
subd. (d)(2)), exhibiting a weapon with the intent to resist an
officer (§ 417.8), five counts of robbery (§ 211), and commercial
burglary (§ 459). The jury also found true allegations that Austin
personally and intentionally used and discharged a firearm and
that he knew or should have known that the victim of the
attempted murder was a peace officer (§§ 12022.5, subd. (a),
12022.53, subd. (b)). He was sentenced to life without the
possibility of parole plus 33 years and 8 months. His convictions
and sentence were subsequently affirmed on appeal. (People v.
Lee, supra, B154641.)
In July 2019, Austin filed a petition for resentencing under
section 1170.95, which applies to individuals convicted of murder.
The trial court found that appellant was ineligible for relief under
section 1170.95 because he was convicted of attempted murder
rather than murder, and accordingly denied the petition.
DISCUSSION
Austin contends the trial court erred in summarily denying
his section 1170.95 petition for resentencing. He claims the court
erroneously found that section 1170.95 does not apply to the
crime of attempted murder and that denying him relief under the
statute violates his right to equal protection and amounts to cruel
and unusual punishment. We are not persuaded.
In 2018, the Legislature enacted Senate Bill No. 1437,
which eliminated liability for murder under the natural and
probable consequences doctrine. (People v. Lopez (2019) 38
Cal.App.5th 1087, 1092-1093 (Lopez), review granted Nov. 13,
2019, S258175.) The natural and probable consequences doctrine
provides that “‘[a] person who knowingly aids and abets criminal

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conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of
the intended crime.’” (People v. Medina (2009) 46 Cal.4th 913,
920.) “‘By its very nature, aider and abettor culpability under the
natural and probable consequences doctrine is not premised upon
the intention of the aider and abettor to commit the nontarget
offense because the nontarget offense was not intended at all. It
imposes vicarious liability for any offense committed by the direct
perpetrator that is a natural and probable consequence of the
target offense.’” (People v. Chiu (2014) 59 Cal.4th 155, 164,
superseded by statute as stated in People v. Lopez (2019) 38
Cal.App.5th 1087, 1103.)
Senate Bill No. 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.” (Stats. 2018, ch. 1015, § 1(f), p. 6678, italics added; see
People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Section 188
was amended to require that “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); Stats. 2018, ch.
1015, § 2, p. 6679; In re R.G. (2019) 35 Cal.App.5th 141, 144.) As
a result of this amendment, the natural and probable
consequences doctrine can no longer be used to support a murder
conviction. (Lopez, supra, 38 Cal.App.5th at p. 1103 & fn. 9.)

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The legislation also enacted section 1170.95 to allow
individuals previously convicted of murder under a natural and
probable consequences theory to petition the court to have their
murder convictions vacated and to be resentenced. A petitioner
is eligible for resentencing if three conditions apply: (1) A
charging document “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 . . . ; [and] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189” made by Senate Bill
No. 1437. (§ 1170.95, subd. (a).)
Austin is ineligible for relief under the plain text of section
1170.95 because he was not convicted of first or second degree
murder. Although they are closely related, “[m]urder and
attempted murder are separate crimes.” (Lopez, supra, 38
Cal.App.5th at p. 1109.) Moreover, the remainder of the text of
Senate Bill No. 1437 confirms that the Legislature intended the
law to apply exclusively to defendants convicted of murder. The
law expressly states that “[t]here is a need for statutory changes
to more equitably sentence offenders in accordance with their
involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b), p. 6678,
italics added.) The Legislature acted “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.” (Stats. 2018, ch. 1015, § 1(f), p. 6678, italics added.)
This is not an instance where “‘resolution of the statute’s
ambiguities in a convincing manner is impracticable,’” such that

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we must apply the rule of lenity to interpret the law in the
defendant’s favor. (People v. Avery (2002) 27 Cal.4th 49, 58.)
Every court to address the issue has concluded that
individuals convicted of attempted murder are ineligible for relief
under section 1170.95. (See, e.g., People v. Dennis (2020) 47
Cal.App.5th 838, 844-847, review granted July 29, 2020,
S262184; Lopez, supra, 38 Cal.App.5th at pp. 1104-1105; People
v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted
November 26, 2019, S258234; People v. Medrano (2019) 42
Cal.App.5th 1001, 1016-1018, review granted Mar. 11, 2020,
S259948; People v. Larios (2019) 42 Cal.App.5th 956, 968-969,
review granted Feb. 26, 2020, S259983.) We reach the same
conclusion, pending our Supreme Court’s resolution of the issue.
Austin complains that this conclusion creates an irrational
result in which defendants convicted of murder are punished less
severely than those convicted of attempted murder. He relies on
People v. King (1993) 5 Cal.4th 59, in which the court held that
laws providing a benefit to juvenile defendants convicted of
murder must be interpreted as providing the same benefit to
attempted murderers, even though the literal text of the statute
indicates otherwise. In so holding, the court recognized that
“‘“language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the
Legislature did not intend.”’” (Id. at p. 69.) As noted in Lopez,
however, the sentencing provisions in King occurred because a
series of unrelated statutes and Supreme Court decisions worked
together in a way the Legislature had not considered or
anticipated. (See Lopez, supra, 38 Cal.App.5th at pp. 1106-1107.)
“Here, in contrast, we are not dealing with amendments of
different statutes in separate codes at different times leading to

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an unintended result, but a single piece of legislation in which
the Legislature unequivocally elected, both in the words it chose
and its statement of purpose, to provide a benefit to one category
of aiders and abettors prosecuted under the natural and probable
consequences doctrine—those facing the lengthiest prison
sentences—and not to others.” (Id. at p. 1107.)
Austin’s reliance on People v. Barrajas (1998) 62
Cal.App.4th 926, is also unavailing. In that case, the court held
that section 1000—which allows defendants convicted of certain
drug offenses to enter a diversion program—also applies to those
convicted of attempting to commit a predicate offense, even
though the statute made no provision for attempts. (Id. at p. 929
& fn. 3.) But section 1000 applies to several different criminal
offenses, most of which involve the simple possession or use of
illegal drugs. (See § 1000, subd. (a).) Section 1170.95, by
contrast, involves only the offense of murder. When the
Legislature intends for a law to apply to attempted murder, it
explicitly says so in the text of a statute. (See, e.g., § 246.1, subd.
(a) [law requiring forfeiture of a vehicle used in a crime applies to
attempted murder], § 667.5, subd. (c)(12) [defining attempted
murder as a violent felony], § 2932, subd. (a)(1) [loss of credit for
good behavior for committing attempted murder in prison].)
Moreover, it is not irrational to provide relief for
defendants convicted of murder but not attempted murder. As
the court explained in Lopez, “the gap between a defendant’s
culpability in aiding and abetting the target offense and the
culpability ordinarily required to convict on the nontarget offense
is greater in cases where the nontarget offense is murder, than
where the nontarget offense is attempted murder or, in the
prosecutor’s discretion, aggravated assault. The Legislature

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could have reasonably concluded reform in murder cases ‘was
more crucial or imperative.’” (Lopez, supra, 38 Cal.App.5th at
p. 1112.) Given the limited resources available for handling
resentencing cases, the Legislature may have decided to make
relief available only to murder cases. (See ibid.)
To the extent Austin asserts that the exclusion of
attempted murder from section 1170.95 violates principles of
equal protection, it is well-settled that “[p]ersons convicted of
different crimes are not similarly situated for equal protection
purposes.” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565,
citations, internal quotation marks and italics omitted.) As the
court in Lopez recognized, “murder is punished more severely
than attempted murder” and “[t]he Legislature is permitted to
treat these two groups of criminals differently.” (Lopez, supra, 38
Cal.App.5th at pp. 1109-1110; see also People v. Munoz, supra, 39
Cal.App. 5th at pp. 760-761.)
We also reject Austin’s claim that the exclusion of
attempted murder from section 1170.95 violates the state
constitutional prohibition against cruel and unusual punishment
(Cal. Const., art. I, § 17). People v. Schueren (1973) 10 Cal.3d
553, which he offers in support of his claim, is inapposite. The
defendant in that case was convicted of a lesser included offense,
yet received a longer sentence than he would have received had
he been found guilty as charged. (See id., at pp. 559-560.)
Schueren, however, does not apply to the denial of postconviction
relief. As our colleagues in the Fourth District explained in
affirming the denial of a petition for resentencing under
Proposition 36, “[u]nder the laws then in effect, defendant
received a valid indeterminate sentence. There was nothing
unusual about his sentence, as it was not one ‘that in the

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ordinary course of events is not inflicted.’” (People v. Smith
(2015) 234 Cal.App.4th 1460, 1468-1469.) The enactment of a
law providing postconviction relief for defendants convicted of
murder, but not defendants such as Austin who were convicted of
attempted murder, “does not retroactively convert defendant’s
otherwise lawful sentence into a constitutionally ‘unusual’ one
under Schueren.” (Id. at p. 1469.) Accordingly, Austin fails to
meet his “considerable burden” of showing that he has been
subjected to cruel and unusual punishment. (See People v. Wingo
(1975) 14 Cal.3d 169, 174.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.

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Gustavo Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Thomas Owen, 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, Scott A. Taryle Supervising Deputy
Attorney General, and Colleen M. Tiedemann, Deputy Attorney
General, for Plaintiff and Respondent.

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