The opinion
Filed 4/13/21 P. v. Howard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074182
v. (Super.Ct.No. RIF1601045)
ISAIAH DAVILON LEE HOWARD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Isaiah Davilon Lee Howard, filed a petition for
resentencing pursuant to Penal Code1 section 1170.95 (Stats. 2018, ch. 1015, § 4), which
the trial court dismissed. Defendant contends the court erred in dismissing his petition on
the grounds that section 1170.95 does not apply to those convicted of attempted murder.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant willfully and unlawfully, with malice aforethought, attempted to
murder the victim for the benefit of, at the direction of, and in association with a criminal
street gang. The People charged defendant by information with attempted murder
(§§ 664, 187, subd. (a), count 1), carrying a loaded firearm in public which was not
registered to the defendant (§ 25850, subd. (c)(6), count 2), and being a prohibited person
in possession of a firearm (§ 29820, count 3). The People additionally alleged that in the
commission of the count 1 offense, a principal had personally and intentionally
discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)), and that
defendant had committed the offense for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Pursuant to a negotiated agreement, defendant pled guilty to attempted murder
(§§ 664, 187, subd. (a)), without premeditation and deliberation, and admitted the offense
was committed for the benefit of, at the direction of, and in association with a criminal
1 All further statutory references are to the Penal Code.
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street gang (§ 186.22, subd. (b)(1)(C)).2 In return, the remaining counts and allegation
were dismissed, and the court sentenced defendant to a determinate term of 17 years of
imprisonment.
Defendant filed a petition for resentencing pursuant to section 1170.95. At the
hearing on defendant’s petition, the People moved to dismiss because defendant had been
convicted of attempted murder, not murder. The court dismissed the petition.
II. DISCUSSION
Defendant contends the court erred in dismissing his petition on the grounds that
section 1170.95 does not apply to those convicted of attempted murder. We disagree.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] narrowed the scope of liability for first
and second degree murder by altering the doctrines that had allowed convictions for those
offenses in the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that
change by amending sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural and probable consequences
doctrine.” (People v. Sanchez (2020) 48 Cal.App.5th 914, 917.)
“The Legislature also added section 1170.95 to the Penal Code. That provision
creates a procedure for offenders previously convicted of felony murder or murder under
a natural and probable consequences theory to obtain the benefits of these changes
retrospectively. If the petitioner makes a prima facie showing of entitlement to relief
under section 1170.95, subdivision (a), the petitioner is entitled to receive ‘a hearing to
2 As part of the agreement, defendant also pled guilty in three misdemeanor cases.
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determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not been previously . . . sentenced.’” (People v. Sanchez, supra, 48 Cal.App.5th at
p. 917.)
“By its plain language, section 1170.95 . . . makes resentencing relief available
only to qualifying persons convicted of murder.” (People v. Sanchez, supra,
48 Cal.App.5th at p. 918; accord People v. Larios (2019) 42 Cal.App.5th 956, 970,
review granted Feb. 26, 2020, S259983 [“[T]he relief provided in section 1170.95 is
limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder.”]; accord People v. Lopez (2019) 38 Cal.App.5th 1087,
1105, review granted Nov. 13, 2019, S258175 [“The plain language meaning of Senate
Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully
supported by its legislative history.”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753,
review granted Nov. 26, 2019, S258234 [“Senate Bill 1437 does not apply to attempted
murder convictions.”]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review
granted Mar. 11, 2020, S259948 [“[T]he relief provided in section 1170.95 is limited to
certain murder convictions and excludes all other convictions, including a conviction for
attempted murder.”]; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted
July 29, 2020, S262184 [“Senate Bill No. 1437 . . . reaches the crime of murder but has
no application to attempted murder.”]; accord People v. Love (2020) 55 Cal.App.5th 273,
286, review granted Dec. 16, 2020, S265445 [“In our view, Senate Bill 1437’s legislative
history pretty clearly establishes that its amendments apply to the crime of murder and to
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that crime alone.”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 223 [“Senate Bill 1437
does not apply to attempted murder.”]; accord People v. Harris (2021) 60 Cal.App.5th
557.) We agree with the previous panels of this court in People v. Sanchez, supra,
48 Cal.App.5th 914 and People v. Harris, that the plain language of section 1170.95
limits relief to those convicted of murder; no reference to attempted murder appears in
section 1170.95. Thus, the court properly dismissed defendant’s section 1170.95 petition
because defendant had been convicted of attempted murder, not murder.
Three courts have held that Senate Bill No. 1437 does apply to those convicted of
attempted murder but only on direct appeal from the judgment: “[W]e conclude Senate
Bill 1437 precludes any imposition of vicarious liability under the natural and probable
consequences doctrine if the charged offense requires malice aforethought. Because
malice cannot be imputed to a defendant who aids and abets a target offense without the
intent to kill, the natural and probable consequences doctrine is no longer a viable theory
of accomplice liability for attempted murder.” (People v. Medrano, supra,
42 Cal.App.5th at p. 1013; accord People v. Larios, supra, 42 Cal.App.5th at p. 968
[“Senate Bill 1437’s abrogation of the natural and probable consequences doctrine as
stated in section 188, subdivision (a)(3) necessarily applies to attempted murder.”];
accord People v. Sanchez (2020) 46 Cal.App.5th 637, 644, review granted June 10, 2020,
S261768 [“[W]e conclude Senate Bill No. 1437 abrogates the natural and probable
consequences doctrine in attempted murder prosecutions.”].) However, “the section
1170.95 petitioning procedure does not apply to defendants for their convictions of
attempted murder . . . .” (Medrano, at p. 1008; accord Larios, at p. 961 [“[S]ection
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1170.95 provides no relief for the crime of attempted murder.”]; accord People v.
Sanchez, supra, 46 Cal.App.5th at p. 644 [The conclusion that “Senate Bill No. 1437
abrogates the natural and probable consequences doctrine in attempted murder
prosecutions . . . applies retroactively on direct appeal.”]) Thus, even if we assumed that
Senate Bill No. 1437 applied to convictions for attempted murder, the petitioning and
resentencing procedures of section 1170.95 do not. Therefore, because defendant’s
appeal is from the denial of a section 1170.95 petition and not from the judgment, he is
not entitled to any relief. The court properly denied his section 1170.95 petition.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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