People v. Burns CA2/2

Filed 10/12/21 P. v. Burns CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B308077

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA348603) v.

DONVAY LAMARR BURNS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Frederick N. Wapner, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Assistant Attorney General, Jonathan J. Kline and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Donvay LaMarr Burns (appellant) filed this appeal to challenge the denial of his Penal Code section 1170.951 petition for resentencing. He claims that the trial court erred when it followed People v. Cervantes (2020) 44 Cal.App.5th 884, 886 (Cervantes) and ruled that he was ineligible for relief because the statute applies to murder convictions but not voluntary manslaughter convictions based on no contest pleas. Alternatively, he contends that section 1170.95 violates equal protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and substantive due process. We affirm the trial court’s order because the statute, by its clear terms, applies to murder, not voluntary manslaughter, and it does not violate any constitutional principles. FACTS Appellant was charged with multiple crimes, including murder (§ 187) and assault with a firearm (§ 245, subd. (a)(2)), in an amended information containing various enhancement allegations.2 On May 3, 2012, appellant pleaded no contest to voluntary manslaughter (§ 192, subd. (a)) and assault with a firearm. He admitted gang allegations (§ 186.22, subd. (b)(1)(C)) and gun allegations (§ 12022.5, subd. (a)). The trial court sentenced him to an aggregate determinate prison term of 25 years, and an additional concurrent prison term of three years. On April 29, 2019, appellant filed his petition for resentencing. In subsequent briefing, he argued that section