People v. Smith CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Bernardino · No. FSB1301449
- Trial judge
- Alexander R. Martinez
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Truc T. Do (author), O'Rourke, Julia C. Kelety
Analysis
The trial court denied Smith's petition for resentencing under Penal Code section 1172.6, finding she failed to establish a prima facie case because her 2020 plea occurred after the effective date of Senate Bill 1437. The Court of Appeal affirmed, holding that Smith could not satisfy the statutory requirement that she could not presently be convicted of murder due to the changes in the law, as she had already received the benefits of the new law by pleading after its enactment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“Smith entered her plea in 2020, with the advice and consent of legal counsel, when the now invalid theories of murder liability had already been eliminated. She thus cannot satisfy the third requirement under subdivision (a)(3) of section 1172.6” | de novo | correct | agree with court The appellate court correctly applied the plain language of Penal Code section 1172.6, subdivision (a)(3), which requires a petitioner to show they could not presently be convicted of murder because of changes brought by Senate Bill 1437. Since Smith’s conviction resulted from a plea entered in 2020, after the effective date of the statute (January 1, 2019), she was convicted under the new law, not the prior law. Therefore, she cannot claim she is ineligible for a murder conviction due to the statutory changes, as those changes were already in effect when she pleaded. The reliance on People v. Lewis supports the conclusion that the statute is intended for those convicted under the prior law. |
Authorities
- relied: People v. Lewis (2021) 11 Cal.5th 952 — The resentencing procedure under section 1172.6 was designed to provide retroactive relief to defendants who were, or who could have been, convicted of murder under the prior law.
- relied: People v. West (1970) 3 Cal.3d 595 — A defendant may plead no contest to a lesser included offense while reserving the right to appeal the denial of a motion to set aside the plea.
- relied: People v. Reyes (2023) 2023 WL 7895600 — A defendant convicted after the effective date of Senate Bill 1437 is ineligible for resentencing under section 1172.6 because they cannot satisfy the requirement that they could not presently be convicted of murder due to the statutory changes.
The appellate opinion: sound — The opinion is sound because it correctly interprets the statutory text of section 1172.6, subdivision (a)(3), and applies the controlling precedent from People v. Lewis to conclude that the statute does not apply to convictions entered after the effective date of the underlying law change. The reliance on the unpublished People v. Reyes is permissible under Rule 8.1115(b) as it is being used for persuasive value in a memorandum opinion, and the reasoning aligns with the legislative intent to provide relief to those convicted under the prior, now-invalid theories of liability.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Keisha Smith's Penal Code section 1172.6 resentencing petition at the prima facie stage because she entered her West plea to voluntary manslaughter in January 2020, after Senate Bill No. 1437 took effect, so she could not show she was unable to be convicted of murder 'because of changes' made effective January 1, 2019. The Court of Appeal, in a memorandum opinion, adopted the reasoning of the Fifth District's then-recent decision in People v. Reyes and affirmed, holding that a defendant who pled after the new law was already in force had already received its benefit and cannot satisfy subdivision (a)(3).
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage on the ground that a defendant who entered her plea after Senate Bill No. 1437 became effective cannot satisfy subdivision (a)(3) of the statute.“Smith entered her plea in 2020, with the advice and consent of legal counsel, when the now invalid theories of murder liability had already been eliminated. She thus cannot satisfy the third requirement under subdivision (a)(3) of section 1172.6” | unclear | correct | agree with court The opinion does not state a standard of review, though the question is one of statutory interpretation that would be reviewed de novo. The result follows from the statutory text: subdivision (a)(3) requires that the petitioner could not presently be convicted of murder 'because of changes' effective January 1, 2019, and a defendant who pled after that date was never exposed to the now-invalid imputed-malice theories; the Reyes reasoning and the Lewis description of the statute as retroactive relief support this. The court properly limited itself to the second Reyes ground because Smith's 2013 information did charge felony murder, so the (a)(1) ground would not have applied. Smith's argument that she pled to avoid a murder trial does not change the fact that any murder conviction at a 2020 trial would have had to rest on a still-valid theory. |
Authorities
- relied: People v. Reyes (2023) 97 Cal.App.5th 292 — A defendant whose conviction by plea occurred after Senate Bill No. 1437 became effective cannot satisfy section 1172.6, subdivision (a)(3), because the now-invalid theories of murder liability had already been eliminated and the defendant has already received the benefit of the new law.
- relied: People v. Lewis (2021) 11 Cal.5th 952 — The section 1172.6 resentencing procedure was designed to provide retroactive relief to defendants who were, or could have been, convicted of murder under the prior law.
- relied: People v. Smith (2017) 12 Cal.App.5th 766 — Prior appeal reversing Smith's original murder conviction for instructional error and remanding for a new trial, which led to the 2020 plea.
The appellate opinion: sound with gaps — The opinion reaches a defensible result grounded in the statutory text of subdivision (a)(3) and consistent with Reyes and the Supreme Court's description of the statute's retroactive purpose in Lewis. It is brief, does not state the standard of review, does not independently parse the statutory language beyond quoting Reyes, and relies on a decision issued after briefing closed without noting whether supplemental briefing was offered.
Opinion
Filed 12/13/23 P. v. Smith CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081772
Plaintiff and Respondent, v. (Super. Ct. No. FSB1301449)
KEISHA RENEE SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino, Hon. Alexander R. Martinez, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for the Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Garland, Assistant Attorney General, Alan L. Amann and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION1 Kiesha Renee Smith (and her codefendant Michael Mitchell) was convicted in 2014 of first degree special circumstance murder for the 2005 killing of a 90-year old woman during a home invasion robbery. This court reversed Smith’s conviction for instructional error and remanded for a new trial. (People v. Smith (2017) 12 Cal.App.5th 766.) On remand, Smith pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 to voluntary manslaughter (§ 192(a)) during which she personally used a firearm (§ 12022.5(a)); first degree home invasion robbery (§ 213(a)(1)(A)); first degree residential burglary (§ 459); and grand theft (§ 487(a)). Pursuant to the negotiated plea, she was sentenced to 25 years in state prison. In January 2022, Smith filed a petition for resentencing under section 1172.6.2 The trial court denied the petition, finding Smith failed to establish a prima facie case for relief. It reasoned that because Smith entered her plea in January 2020⎯“an entire year after” Penal Code section 1172.6 was enacted⎯she could not establish the requirement under subdivision (a)(3) of the statute that “she could not presently be convicted of murder . . . with the legal changes that went into effect on January [1], 2029.” Smith contends this was error. She argues the fact she entered her plea after the effective date of the statute does not make her ineligible for 1 We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
2 All further undesignated statutory references are to the Penal Code. Smith brought her petition under former section 1170.95, which was amended effective January 1, 2022, and then renumbered as section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We will refer to the statute by its current number.
2 relief. She asserts she met the requirements under section 1172.6 because she was charged with felony murder by an amended information filed in 2013 and she “accepted a plea offer instead of going to a trial where she could have been convicted [f]or murder.” We disagree. The question in this appeal⎯“whether a criminal defendant who was convicted after Senate Bill No. 1437 [(2017-2018 Reg. Sess.)] became effective can nevertheless obtain resentencing relief under section 1172.6”⎯was recently answered by the Fifth District Court of Appeal in People v. Reyes (Nov. 16, 2023, F085582) ___ Cal.App.5th ___ [2023 WL 7895600] (Reyes)).3 Like here, the trial court denied the appellant’s petition for resentencing, concluding he was ineligible for resentencing because his conviction had occurred after Senate Bill No. 1437 became effective. (Reyes, at *1.) The Court of Appeal rejected the appellant’s argument that the date of his conviction should not bar him from relief and affirmed. (Id. at *2.) “In general, the following three conditions are required for a person to seek resentencing under section 1172.6: [¶] (1) A complaint, information or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder liability that is now invalid (§ 1172.6, subd. (a)(1)); [¶] (2) Following a trial or the acceptance of a plea offer in lieu of a trial, the petitioner was convicted of manslaughter, murder, or attempted murder (§ 1172.6, subd. (a)(2)); and [¶] (3) The petitioner could not presently be convicted of murder or attempted murder ‘because of changes’ brought by Senate Bill No. 1437 and made effective January 1, 2019 (§ 1172.6, subd. (a)(3)).” (Reyes, supra, [2023 WL 7895600 *2], italics added.) The Reyes court found the appellant ineligible for resentencing for two independent reasons: “First, in order to be resentenced, the charging 3 Reyes was issued after the parties filed their briefs on appeal. 3 document filed against appellant must have allowed the prosecution to proceed under a theory of murder liability that is now invalid. (§ 1172.6, subd. (a)(1).) This requirement is not met here. The prosecution filed the information against appellant in 2020. Thus, when this criminal proceeding was initiated, the prosecution was precluded from proving the murder charge under a theory of imputed malice. This deficiency amply demonstrates that the trial court did not err when it denied appellant’s petition for resentencing.” (Reyes, supra, [2023 WL 7895600 at *3].) Second, “[i]n order to be resentenced, a petitioner must allege that he could not presently be convicted of murder (or its attempt) ‘because of changes’ brought by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) This language demonstrates that appellant’s petition was properly denied. Appellant was not convicted under the prior law, which permitted a theory of murder based on imputed malice. Instead, he entered his change of plea in 2021 with the advice and consent of legal counsel. When appellant entered his change of plea, the now invalid theories of murder liability had already been eliminated. Consequently, appellant has already received the benefits of Senate Bill No. 1437.” (Reyes, supra, [2023 WL 7895600 at *3].) We agree with the Reyes court and conclude the second reason articulated by the Reyes court applies to Smith. Smith entered her plea in 2020, with the advice and consent of legal counsel, when the now invalid theories of murder liability had already been eliminated. She thus cannot satisfy the third requirement under subdivision (a)(3) of section 1172.6, namely, she could not presently be convicted of murder or attempted murder “because of changes” brought by Senate Bill No. 1437 and made effective January 1, 2019. As the California Supreme Court stated in People v. Lewis (2021) 11 Cal.5th 952, 957), the resentencing procedure was designed to 4 provide retroactive relief to defendants who were, or who could have been, convicted of murder (or its attempt) under the prior law. DISPOSITION The order denying Smith’s petition for resentencing pursuant to section 1172.6 is affirmed.
DO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
KELETY, J.
Cites, in this corpus
- People v. Lewis S260598 · 2021-07-26
- People v. West Crim. 14453 · 1970-12-03