THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO MONROY, Defendant and Appellant.
G058919 (Super. Ct. No. 02CF0424)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 3/2/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This court hereby orders that the opinion filed herein on February 11, 2021, be modified as follows:
- On page 6, last paragraph, first sentence, the word “attempted” should be inserted before the word “murder.”
This modification does not change the judgment.
MOORE, J.
WE CONCUR:
O‘LEARY, P. J.
IKOLA, J.
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO MONROY, Defendant and Appellant.
G058919 (Super. Ct. No. 02CF0424)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 2/11/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.
Tonja R. Torres, 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, Michael Pulos, Lynne G. McGinnis and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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In January 2020, defendant filed a petition for resentencing in superior court pursuant to
I
FACTS
Because this appeal concerns only an issue of law, we need not review the facts in any detail. A full recitation of the facts can be found in Monroy I. Suffice to say that defendant was one of three men who kidnapped, assaulted, and shot one of the victims, which led to the attempted murder charge relevant here. (Monroy I, supra, G035580.)
II
DISCUSSION
The Legislature adopted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) “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
Additionally, SB 1437 enacted
Procedurally, if a petitioning defendant makes a prima facie showing that
Defendant argues the trial court erred by summarily denying his motion without appointing counsel or holding a hearing, and he further asserts the court erred by deciding that attempted murder is ineligible for relief under
The two issues defendant raises here are intertwined. A petition under
Thus, the question we must determine here is whether defendant‘s conviction for attempted murder, rather than murder, falls within the ambit of
The express statutory language of amended sections 188 and 189 state they apply to murder. Munoz, supra, 39 Cal.App.5th at page 754, stated: “The plain language of [the amended sections 188 and 189, and
As the court discussed in Lopez, supra, 38 Cal.App.5th at page 1104: “[T]here is nothing ambiguous in the language of Senate Bill 1437, which, in addition to the omission of any reference to attempted murder, expressly identifies its purpose as the need ‘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.’ [Citation.] Had the Legislature meant to bar convictions for attempted murder under the natural and probable consequences doctrine, it could easily have done so.”
“The Legislature‘s obvious intent to exclude attempted murder from the ambit of the Senate Bill 1437 reform is underscored by the language of new
“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. [Citations.] When describing the proposed petition process, the Legislature consistently referred to relief being available to individuals charged in a complaint, information or indictment ‘that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine’ and who were ‘sentenced to first degree or second degree murder.’ [Citation.] In addition, when discussing the fiscal impact and assessing the likely number of inmates who may petition for relief, the Senate Committee on Appropriations considered the prison population serving a sentence for first and second degree murder and calculated costs based on that number. [Citation.] The analysis of potential costs did not include inmates convicted of attempted murder.” (Lopez, supra, 38 Cal.App.5th at p. 1105.)
We adopted this reasoning in Dennis, supra, 47 Cal.App.5th at pages 845-846. We further rejected the reasoning of People v. Medrano, supra, 42 Cal.App.5th 1001, and the cases following it as flawed. (Dennis, at p. 846.)
We have not been persuaded to change our view, and continue to join the majority of courts in concluding that murder is not within the ambit of
Circling back to the issue of appointment of counsel, we conclude defendant‘s petition was deficient because he was not convicted of first or second degree murder. (
III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
O‘LEARY, P. J.
IKOLA, J.