California Court of Appeal Dec 23, 2021 No. E076404Unpublished
Filed 12/23/21 P. v. Ware 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076404
v. (Super.Ct.No. FSB03904)
MARTIN WARE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
In 1995, a jury convicted defendant and appellant Martin Ware of several crimes,
including two counts of first degree attempted murder. (Pen. Code,1 §§ 664, 187,
and People v. King (1993) 5 Cal.4th 59. However, none of those cases concern Senate
Bill No. 1473, and they are therefore inapposite. We further note that, by section
1170.95’s plain terms, only persons “convicted of felony murder or murder under a
natural and probable consequences theory may file a petition . . . .” (§ 1170.95, subd. (a),
italics added.) “The repeated references to murder convictions in section 1170.95, as
opposed to attempted murder convictions, make clear that Senate Bill 1437’s
ameliorative benefit was meant to reach only the completed offense of murder, not the
distinct offense of attempted murder.” (People v. Alaybue (2020) 51 Cal.App.5th 207,
223 (Alaybue).)
Defendant further argues that construing Senate Bill No. 1437 to apply to murder,
but not attempted murder, would be contrary to the intent of the Legislature and would
result in the absurd consequences of, for example, a defendant who committed an assault
with a deadly weapon where the victim died being guilty of assault; however, for the
8
same conduct, if the victim does not die, the defendant would be guilty of the greater
offense of attempted murder. The court in Munoz rejected a similar argument. The
defendant in that case argued that construing Senate Bill No. 1437 to apply only to
murder would result in “ ‘absurdly disparate’ sentencing consequences for the same
conduct, with persons convicted of the lesser offense of attempted murder serving longer
sentences than those convicted of murder.” (Munoz, supra, 39 Cal.App.5th at p. 756, fn.
omitted.) The Munoz court recognized that the language of a statute should not be given
a literal meaning if doing so would result in absurd consequences that the Legislature did
not intend or would frustrate the purpose of the legislation as a whole. However, it
concluded that the Legislature apparently intended to exclude attempted murder from
Senate Bill No. 1437’s reach “and the consequences of that legislative choice are not
clearly absurd.” (Munoz, at p. 757.) The court pointed to “[t]he statute’s uncodified
statement of legislative findings and declarations,” and noted the “repeated references to
‘murder,’ and murder alone,” as well as “the statement that amendment of the natural and
probable consequences doctrine was necessary ‘as it relates to murder.’ ” (Ibid.)
The Munoz court also reasoned that it would not be absurd to abide by the plain
language of the statute, since “it is far from clear that interpreting Senate Bill [No.] 1437
to apply to convictions for murder, but not attempted murder, will always, or typically,
result in longer sentences for the latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758.)
The court noted that “the basic punishment for attempted murder is far less severe than
9
that imposed for murder”2 and applying the statute’s plain language does not “undermine
the primary legislative goal of making punishment commensurate with culpability,
because the punishment for attempted murder was already, prior to Senate Bill [No.]
1437’s enactment, less than that imposed for murder.” (Id. at p. 758; see also Alaybue,
supra, 51 Cal.App.5th at p. 224 [“the Legislature could have reasonably concluded that
the need to address sentencing reform was more appropriately directed at persons
convicted of murder as opposed to attempted murder . . . because the punishment for
attempted murder is generally far less than the punishment imposed for murder.”].)
Moreover, the Munoz court observed that the “ ‘absurdity exception requires much
more than [a] showing that troubling consequences may potentially result if the statute’s
plain meaning were followed or that a different approach would have been wiser or
better,’ ” and, further, that the absurdity doctrine should be used only in extreme cases.
(Munoz, supra, 39 Cal.App.5th at p. 758; see People v. Morales (2019) 33 Cal.App.5th
800, 806.) Here, although the potential consequences suggested by defendant may be
troubling, we do not find the plain meaning of Senate Bill No. 1437 to be “so absurd in
its results that we would be permitted to disregard the literal language used in the
statute.” (Alaybue, supra, 51 Cal.App.5th at p. 225; see Munoz, supra, 39 Cal.App.5th at
p. 758.)
2 We note that the punishment for first degree murder is death, life in prison without the possibility of parole, or 25 years to life in state prison. (See § 190, subd. (a).) The penalty for second degree murder is, with some exceptions, generally 15 years to life in state prison. (Ibid.) The penalty for attempted murder is life in prison with the possibility of parole (with a minimum term of seven years) or a determinate term of five, seven, or nine years. (See § 664, subd. (a).) 10
Defendant further argues that interpreting Senate Bill No. 1437 and section
1170.95 as only permitting relief for murder and not attempted murder violates equal
protection, since “murder and attempted murder are ‘similarly situated’ for the purpose of
section 1170.95 because by definition both require malice.” We disagree. “The concept
of equal treatment under the laws means that persons similarly situated regarding the
legitimate purpose of the law should receive like treatment. [Citation.] ‘ “The first
prerequisite to a meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.” [Citations.] This initial inquiry is not whether persons are similarly
situated for all purposes, but “whether they are similarly situated for purposes of the law
“[P]ersons convicted of murder are not similarly situated to persons convicted of
attempted murder for purposes of Senate Bill 1437.” (Munoz, supra, 39 Cal.App.5th at
pp. 760-761.) “Attempted murder and murder are different offenses. [Citations.]
Significantly, attempted murder is punished less harshly than murder. ‘These different
penal consequences necessarily mean, for purposes of sentencing reform, an individual
charged with, or convicted of, murder under the natural and probable consequences
doctrine is not similarly situated to an individual confronting a charge of attempted
murder . . . under the doctrine.’ ” (Id. at p. 761.)
Defendant’s equal protection claim also fails because he has not shown the
absence of a rational basis for excluding attempted murder convictions from Senate Bill
11
No. 1437’s reach. As explained extensively in Munoz, “balancing the costs involved, the
fact the penalties for attempted murder are less severe than for murder, and the length of
prison terms mandated for many potentially relevant felonies, the Legislature could
rationally have determined that extending Senate Bill 1437 relief to attempted murderers
would put too great a strain on state resources, while resulting—in most cases—in
insignificant decreases in the sentences served for attempted murder convictions. The
Legislature could reasonably conclude its aims could be achieved by limiting relief to
persons convicted of murder, but not attempted murder. ‘Preserving the government’s
financial integrity and resources is a legitimate state interest.’ ” (Munoz, supra, 39
Cal.App.5th at p. 765.)
Ultimately, we agree with the reasoning and holding of the court in Munoz that
Senate Bill No. 1437 does not apply to defendants convicted of attempted murder.3
3 We recognize that Senate Bill No. 775, signed by Governor Newsom on October 5, 2021, and effective January 1, 2002, amends section 1170.95 to include attempted murder and manslaughter within its provisions. Therefore, this opinion is made without prejudice to defendant bringing a new petition under section 1170.95 after the effective date of the amended statute. 12
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MENETREZ J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that Senate Bill No. 1437 and the associated resentencing procedure under Penal Code section 1170.95 do not apply to convictions for attempted murder.
Issues
Does Senate Bill No. 1437 apply to convictions for attempted murder?
Does the exclusion of attempted murder from section 1170.95 relief violate equal protection?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder.”
“The repeated references to murder convictions in section 1170.95, as opposed to attempted murder convictions, make clear that Senate Bill 1437’s ameliorative benefit was meant to reach only the completed offense of murder”