People v. Downey CA4/1

Filed 5/27/21 P. v. Downey CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D078197

Plaintiff and Respondent,

v. (Super. Ct. No. SCD255514)

NEIL EDWARD DOWNEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Lynne G. McGinnis, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

In 2017, Neil Downey pleaded guilty to voluntary manslaughter and

admitted a gang allegation (Pen. Code,1 § 192) as part of a plea agreement. A murder charge was dismissed, and the parties stipulated to a 21-year sentence for Downey. In 2019, Downey filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel and received briefing from the parties. Ultimately, the court denied the petition because Downey was not eligible for relief since he was convicted of manslaughter and not murder. Downey filed a timely notice of appeal. Downey contends he is entitled to relief under section 1170.95, even though the statute expressly applies to persons convicted of first- or second- degree murder. Appellate counsel candidly concedes all of the opinions of the courts of appeal, including this court, have squarely rejected all of his arguments and the Supreme Court has declined to grant review in any of those cases. Counsel admits the arguments that are repeated in this case are being made to preserve the issues for review or possibly federal habeas corpus proceedings. We will reject Downey’s arguments for including persons convicted of