Opinion
G057571
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. HAU HA, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus Curiae on behalf of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 96WF1559) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Reversed and remanded. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus Curiae on behalf of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
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Defendant Hau Ha, who was previously convicted of second degree murder, filed a petition in the superior court for vacation of his murder conviction and resentencing under Penal Code section 1170.95, which was enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437). The court denied defendant's petition on the ground that Senate Bill 1437 amends Propositions 7 and 115, two voter initiatives, and therefore violates article II, section 10, subdivision (c) of the California Constitution.
All further statutory references are to the Penal Code unless otherwise stated.
Since the trial court's ruling, Senate Bill 1437 has been upheld as constitutional by a panel of this court (People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762 (Solis)) and in Division One of this district (People v. Superior Court (Gooden) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux)). These cases have concluded Senate Bill 1437 does not unconstitutionally amend either Proposition 7 or Proposition 115. Reaching the same conclusion here, we reverse the court's order denying defendant's petition and remand the matter for a hearing on the petition's merits.
PROCEDURAL HISTORY
In 1997, defendant was convicted of second degree murder (§ 187, subd. (a); count 1), attempted voluntary manslaughter (§§ 664, 192, subd. (a); count 2), and street terrorism (§ 186.22, subd. (a); count 3). Weapon and gang sentencing enhancements were also found true as to counts 1 and 2. (§§ 12022, subd. (a)(1), 186.22, subd. (b)(1).) Defendant's convictions were based on his involvement in a shooting by a member of the Dragon Family gang of two individuals mistakenly believed to be rival gang members. Defendant was not the shooter but was in a van with other Dragon Family members when the shooting took place.
These facts are taken from this court's unpublished opinion in People v. Ta and Doan (Jan. 12, 2001, G023716). --------
In 2004, the court suspended imposition of sentence and placed defendant on formal probation with various terms and conditions. Defendant's probation was revoked in 2008, and he was subsequently sentenced to state prison. The court imposed an indeterminate term of 15 years to life for the murder conviction (count 1) and a consecutive one-year term for the weapon enhancement. As to count 2, defendant was ordered to serve a consecutive term of 8 years 6 months for the offense and enhancements. The court imposed a concurrent three-year sentence on count 3 and stayed the term under section 654.
In January 2019, defendant filed a petition under section 1170.95 to vacate his murder conviction and for resentencing. The People opposed the petition on two grounds: (1) Senate Bill 1437 is unconstitutional because it amends Propositions 7 and 115; and (2) even if it is constitutional, defendant is ineligible for relief because he "aided and abetted the murder and acted with implied malice . . . ." The court, in its statement of decision, denied the petition without prejudice, concluding Senate Bill 1437 is unconstitutional because it amends Propositions 7 and 115.
Defendant appealed from the order denying his petition. (§ 1237, subd. (b).) On appeal, he argues Senate Bill 1437 is constitutional, and he urges us to reverse the court's order and remand the matter for further proceedings on his petition. The Orange County District Attorney (hereinafter District Attorney), representing the People in this appeal, maintains Senate Bill 1437 unconstitutionally amends both Proposition 7 and Proposition 115 and that the court's order should therefore be affirmed. After defendant filed his reply brief, the California Attorney General filed an amicus curiae brief on his behalf, defending the constitutionality of Senate Bill 1437 by arguing it amends neither initiative.
DISCUSSION
Senate Bill 1437 limited accomplice liability for murder under the natural and probable consequences doctrine and the felony murder rule by amending sections 188 and 189 (Stats. 2018, ch. 1015, §§ 1, subd. (f), 2, 3) "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Id., § 1, subd. (f).) It also added section 1170.95, which provides a process for defendants previously convicted of murder under these vicarious liability theories to petition the superior court for vacation of their murder convictions and for resentencing, if they could not be convicted of murder now under the amended statutes. (Stats. 2018, ch. 1015, § 4.) We recently concluded Senate Bill 1437 is constitutional, rejecting the District Attorney's arguments that it amends either Proposition 7 or 115. (Cruz, supra, 46 Cal.App.5th at p. 747; Solis, supra, 46 Cal.App.5th at p. 769.) We adhere to our decisions in Cruz and Solis and need not repeat their reasoning at length here.
Article II, section 10, subdivision (c) of the California Constitution prohibits the Legislature from amending a statute enacted through a voter initiative without "approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval." (People v. Cooper (2002) 27 Cal.4th 38, 44.) The purpose of this "'constitutional limitation on the Legislature's power to amend initiative statutes is to "protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent."'" (People v. Kelly (2010) 47 Cal.4th 1008, 1025.) Our Supreme Court has "described an amendment as 'a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.'" (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) But "any legislation that concerns the same subject matter as an initiative" is not necessarily an amendment. (Ibid.) "[T]he Legislature remains free to enact laws addressing the general subject matter of an initiative, or a 'related but distinct area' of law that an initiative measure 'does not specifically authorize or prohibit.'" (Kelly, at p. 1026, fn. 19; accord, Pearson, at p. 571.)
In Cruz, supra, 46 Cal.App.5th 740, we analyzed whether Senate Bill 1437 amended the initiative statutes of Propositions 7 and 115. (Cruz, at pp. 752-761.) We concluded: "the Legislature's enactment of Senate Bill 1437 has not undone what the voters accomplished with Proposition 7 or Proposition 115 and therefore the legislation does not violate the constitution. Senate Bill 1437 addresses the elements of murder, an area related to but distinct from the penalty for murder set by voters in Proposition 7. Nothing in the language of Proposition 7 nor its ballot materials evidences an intent by the voters to prohibit the Legislature from refining the elements of murder, namely limiting accomplice liability under the natural and probable consequences doctrine or felony-murder rule. Nor did the voters so limit the Legislature with the passage of Proposition 115." (Id. at p. 747.) We rejected the District Attorney's assertion that Senate Bill 1437 alters the punishment for murder set by Proposition 7 by amending the definition of malice in section 188 and by limiting who can be prosecuted for felony murder in section 189. (Cruz, at p. 754.) We likewise concluded Senate Bill 1437 did not amend Proposition 115, rejecting the District Attorney's contention that the Legislature was prohibited from addressing accomplice liability for felony murder in Senate Bill 1437 because accomplice liability in death penalty cases was addressed in Proposition 115. (Cruz, at pp. 759-760.) We explained Senate Bill 1437's limitations on accomplice liability "in section 189 is an area of law related to but distinct from accomplice liability in special circumstance murder in section 190.2" and "Senate Bill 1437 did not improperly amend Proposition 115 by adding such restrictions to felony murder in section 189." (Cruz, at p. 760.)
Similarly in Solis, supra, 46 Cal.App.5th 762, we determined Senate Bill 1437 does not authorize anything prohibited by Propositions 7 or 115 nor prohibit anything authorized by the voters in these initiatives. (Solis, at p. 769.) After reviewing the ballot materials for Proposition 7 (Solis, at pp. 776-777), we concluded "Senate Bill No. 1437 is neither inconsistent with Proposition 7, nor does it circumvent the electorate's intent." (Id. at p. 779.) We reached the same conclusion as to Proposition 115, after considering its text and ballot materials. (Solis, at pp. 780-783.)
As the arguments advanced by the District Attorney in this case are identical to those already rejected in Cruz and Solis, we see no reason to depart from our analyses and conclusions that Senate Bill 1437 is constitutional.
In upholding Senate Bill 1437 as constitutional in Cruz and Solis, we reached the same conclusions as our Division One colleagues in Gooden, supra, 42 Cal.App.5th 270 and Lamoureux, supra, 42 Cal.App.5th 241. In Gooden, the majority concluded Senate Bill 1437 was constitutional, explaining it did not amend either "Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives." (Gooden, at p. 275; accord, Lamoureux, supra, at p. 251.) As the Gooden court indicated: "the voters who approved Proposition 7 and Proposition 115 got, and still have, precisely what they enacted—stronger sentences for persons convicted of murder and first degree felony-murder liability for deaths occurring during the commission or attempted commission of specified felony offenses. By enacting Senate Bill 1437, the Legislature has neither undermined these initiatives nor impinged upon the will of the voters who passed them." (Gooden, at p. 289.)
For the reasons we articulated in Cruz and Solis, we conclude the trial court erred by denying defendant's petition.
DISPOSITION
The postjudgment order denying defendant's petition for resentencing is reversed and the matter is remanded for further proceedings on the merits of defendant's petition under section 1170.95.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.