California Court of Appeal Feb 18, 2021 No. E074099Unpublished
Filed 2/18/21 P. v. Vallejo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074099
v. (Super.Ct.No. RIF103887)
FRANCISCO JAVIER VALLEJO et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.
Affirmed.
Boyce & Schaefer and Benjamin Kington, under appointment by the Court of
Appeal for Defendant and Appellant Francisco Vallejo.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant Salomon Vallejo.
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Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne
McGinnis and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
In 2003, defendants Francisco and Salomon Vallejo were convicted of two counts
of attempted murder (Pen. Code, §§ 664 & 187, subd. (a))1 with premeditation, and one
Nov. 13, 2019, S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 754,
review granted Nov. 26, 2019, S258234 (Munoz); People v. Dennis (2020) 47
Cal.App.5th 838, 841, review granted July 29, 2020, S262184 (Dennis); People v.
Alaybue (2020) 51 Cal.App.5th 207, 222.)3
3 None of these pending cases has been depublished, but we question whether the natural and probable consequences has ever applied to convictions for attempted murder. Attempted murder requires a finding of specific intent to kill such that implied malice is insufficient to support a conviction for that offense. (See People v. Swain (1996) 12 Cal.4th 593, 605 [“‘“Specific intent to kill is a necessary element of attempted murder. It [footnote continued on next page]
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Other courts have held that Senate Bill No. 1437 eliminated the natural and
probable consequences theory for attempted murder prospectively, but not retroactively.
(Larios, supra, 42 Cal.App.5th at pp. 966, 969–970; People v. Sanchez (2020) 46
Cal.App.5th 637, 642, review granted June 10, 2020, S261768.)
Still another group has held that Senate Bill No. 1437 eliminated the natural and
probable consequences theory for attempted murder prospectively and retroactively as to
nonfinal convictions, but not retroactively as to final convictions. (Medrano, supra, 42
Cal.App.5th at pp. 1008, 1017–1019.) But few of these decisions address the differences
in the mental states required for murder and attempted murder.
However, dealing strictly with the question of whether the Legislature ever
intended for section 1170.95 to apply to attempted murder, we agree with the conclusion
in Love, supra, that the statute plainly limits those who have standing to bring a motion
for relief under its terms to persons convicted of murder, not attempted murder. (Love,
supra, 55 Cal.App.5th at p. 279.)
The issue is currently pending in the California Supreme Court and will be
must be proved, and it cannot be inferred merely from the commission of another dangerous crime.” [Citation.]’ [Citations.]”.) In other words, the natural and probable consequences doctrine may apply to felony murder, but it is not properly applied to attempted murder.
not similarly situated with persons convicted of murder].) Attempted murder carries a
different punishment from murder and has different elements that must be proven. “If the
two groups are not similarly situated or are not being treated differently, then there can be
no equal protection violation.” (Lopez, supra, 38 Cal.App.5th at p. 1108.)
Defendants acknowledge that at least one case has concluded that treating
attempted murder convictions differently from murder convictions for purposes of the
ameliorative treatment under Senate Bill No. 1437 does not implicate Fourteenth
Amendment rights. (Lopez, supra, 38 Cal.App.5th at pp. 1107-1112.) Nevertheless, they
urge us to reach a different conclusion. We cannot.
There is a fundamental difference between the completed crime of murder and the
crime of attempted murder. As the court observed in Lopez, “[the] distinction [between
murder and attempted murder] is not merely a matter of semantics: Murder and
attempted murder are separate crimes.” (Lopez, supra, 38 Cal.App.5th at p. 1109, see
People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“[i]t is well established that “‘“[a]n
attempt is an offense ‘separate’ and ‘distinct’ from the completed crime”’”]; People v.
Lewis (2006) 146 Cal.App.4th 294, 298 [same]; People v. Reed (2005) 129 Cal.App.4th
1281, 1283 [same].) The penalties for murder and attempted murder also differ: murder
of either first or second degree is punished more severely than attempted murder.
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(Compare § 190, subd. (a) [penalty for first and second degree murder] with § 664
[penalty for attempted murder and attempted willful, deliberate and premeditated
murder]; People v. Lopez, supra, 38 Cal.App.5th at pp. 1109-1110.)
As pointed out in the previous section, the mental state required for attempted
murder has long differed from that required for murder itself. Murder does not
necessarily require the intent to kill. Implied malice--a conscious disregard for life--is
sufficient. (People v. Delgado (2017) 2 Cal.5th 544, 571, citing People v. Lasko (2000)
23 Cal.4th 101, 107.) Further, malice may be implied from the commission of a
dangerous felony without any showing of an intent to kill. (§ 189, subd. (a); People v.
Dillon (1983) 34 Cal.3d 441, 475; People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Murder is fundamentally different from attempted murder, so the defendants are
not similarly situated with persons convicted of murder. Because Senate Bill No. 1437
sought to address the unfairness inherent in the situation in which a person could be
convicted of murder without any intent to kill, based solely on his or her participation in a
crime, the natural and probable consequence of which is the killing of another, it has no
purpose in reviewing convictions of persons found to have specifically intended to kill
another beyond a reasonable doubt.
Persons convicted of different crimes are not similarly situated for equal
protection purposes. (People v. Cervantes (2020) 44 Cal.App.5th 884, 888, citing People
v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) Because murder and attempted murder
are fundamentally different offenses, the defendants, convicted of attempted murder, are
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not similarly situated with persons convicted of murder. Therefore, there is no equal
protection violation.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
CODRINGTON J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1170.95 does not apply to attempted murder convictions and that excluding attempted murder from the statute's resentencing provisions does not violate equal protection principles.
Issues
Does Penal Code section 1170.95 apply to attempted murder convictions?
Does the exclusion of attempted murder from section 1170.95 violate equal protection principles?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The statute plainly limits those who have standing to bring a motion for relief under its terms to persons convicted of murder, not attempted murder.”