People v. Massett CA4/1

Filed 1/14/21 P. v. Massett CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077696

Plaintiff and Respondent,

v. (Super. Ct. No. SCN337293)

DONNIE J. MASSETT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed. Sheila O’Connor, 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, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

This is an appeal from the denial of a petition for resentencing under

Penal Code,1 section 1170.95. Appellant had previously pleaded guilty to voluntary manslaughter but sought the same relief as might be available had he pleaded guilty to murder. The trial court dismissed the petition because the statute applies only to first or second degree murder. We will agree with the trial court and the many decisions of the courts of appeal that have unanimously rejected each of the arguments advanced in this appeal.

PROCEDURAL BACKGROUND2 In 2016, Donnie Massett pleaded guilty to voluntary manslaughter (§ 192, subd. (a)) as a lesser included offense of murder and admitted the offense was committed in association with a criminal street gang (§ 186.22, subd. (b)(1)(c)). He was sentenced to a determinate term of 16 years in prison. In 2019, Massett filed a petition for resentencing under section 1170.95. In his petition, Massett argued the statute, which does not mention manslaughter, still applies to that offense. To read it otherwise he argues would lead to an absurd result, fail to resolve an ambiguity in his favor, and lead to a denial of equal protection. The trial court, relying on an unbroken string of appellate opinions which reject Massett’s arguments, denied the petition. Massett filed a timely notice of appeal.