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Court of Appeal:
Dismissal of Attempted Murder Charge Bars Resentencing
Opinion Says Sentence Stands Because, Following Plea, Defendant No Longer Faced Potential Murder Liability Under Now-Invalid Imputed Malice Theories
By a MetNews Staff Writer
The Fifth District Court of Appeal held yesterday that the fact that a defendant could have been convicted on a now-defunct imputed malice theory on a dismissed count had he chosen to go to trial rather than accepting a plea to voluntary manslaughter—resulting in the dismissal of the attempted murder charge relating to a second victim—did not mandate resentencing.
The court rejected his argument that because he pled guilty after legislation eliminating imputed malice theories of murder liability went into effect, but before relief was extended to attempted murders, his plea should be invalidated to conform with the current state of the law.
In 2018, the California Legislature passed Senate Bill 1437, effective January 2019, which eliminated the natural and probable consequences doctrine of murder liability but did not explicitly deal with attempted murder. A split in authority developed in the courts as to whether the resentencing procedures applied to attempted crimes.
To deal with this ambiguity, attempted murder was added to the statute effective Jan. 1, 2022.
As amended, Penal Code §1172.6 provides for a procedure for petitioning the court for resentencing for those convicted of murder or attempted murder based solely on imputed malice based on that person’s participation in a crime.
The section requires that a defendant “was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.”
Petitioning for resentencing was Iroc Gallegos, who was convicted in 2019 of voluntary manslaughter relating to the death of X.T. The complaint also charged the defendant, in a second count, with the attempted murder of M.M., which was dismissed following his plea on May 10, 2019.
Tulare Superior Court Judge Robert Fultz denied Gallegos’ petition for resentencing on March 20, 2023.
Justice Jennifer R.S. Detjen wrote the opinion affirming the denial. Acting Presiding Justice Charles Poochigian and Justice Kathleen Meehan joined in the opinion.
Plea Effect
Detjen pointed out that the Fourth District decision of People v. Lezama, decided in April, held that individuals who pled guilty to manslaughter after the enactment of the resentencing laws are not eligible for relief under §1172.6. However, she explained:
“[A]t the time petitioner entered his plea, the law was unsettled as to the impact of Senate Bill No. 1437 on the offense of attempted murder. Thus, petitioner argues, he could have faced attempted murder liability under a now-invalid theory had he proceeded to trial in lieu of entering a plea to voluntary manslaughter in 2019.”
Under these circumstances, she remarked:
“Petitioner’s argument has a modicum of facial appeal. As stated, section 1172.6 requires that a petitioner ‘was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.’….Count 2 alleged petitioner had committed attempted murder, and this count was dismissed as a result of petitioner’s negotiated plea. Thus, petitioner’s plea arguably satisfies subdivision (a)(2) of section 1172.6: he entered a plea to voluntary manslaughter in lieu of a trial at which he could have been convicted of attempted murder on count 2 under a now-invalid theory (as well as murder on count 1 under a valid theory).”
Legislative History
Turning to the legislative history, the jurist said:
“However, this argument fails when section 1172.6, subdivision (a)(2) is read in the context of the statute as a whole….[Its] provisions evidence a statutory purpose to provide relief for specific convictions obtained under a now-invalid theory of liability, and not based on dismissed charges separate and apart from the conviction at issue.”
She continued:
“[A]t the section 1172.6 evidentiary hearing, the prosecution must prove beyond a reasonable doubt that the petitioner ‘is guilty of murder or attempted murder’ under current law….However, petitioner’s reasoning would permit the court to uphold a conviction for voluntary manslaughter upon proof beyond a reasonable doubt that the petitioner is guilty of attempted murder on a separate, unrelated, and dismissed count. Again, the structure of the statute, which provides relief on individual counts of conviction obtained under a now-invalid theory, does not support such interpretation.”
Detjen added:
“That history suggests the Legislature intended section 1172.6 to apply to those petitioners who entered a plea to manslaughter only if, at the time the plea was entered, the only way to a charged murder conviction was through an imputed malice theory eliminated by Senate Bill No. 1437….The legislative history does not support an inference that the Legislature intended relief to be available if the prosecution could have proceeded on an invalid imputed malice theory on unrelated and dismissed counts.”
The case is People v. Gallegos, F086151.
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