Opinion
D075827
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVION KEEL, Defendant and Appellant.
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl and Nelson R. Richards, Deputy Attorneys General, as Amicus Curie on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB051307-2) APPEAL from an order of the Superior Court of San Bernardino County, Cara D. Hutson, Judge. Reversed. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl and Nelson R. Richards, Deputy Attorneys General, as Amicus Curie on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent.
I
INTRODUCTION
Twelve years ago, a jury convicted defendant Davion Keel of first degree murder. After the passage of Senate Bill No. 1437 (Stats. 2018, ch. 1015), Keel filed a petition to vacate his murder conviction and obtain resentencing under Penal Code section 1170.95. The trial court struck the petition after concluding that Senate Bill No. 1437 unconstitutionally amended two voter initiatives: Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)), which increased the punishments for persons convicted of murder, and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), which augmented the list of predicate offenses giving rise to first degree felony-murder liability. Keel appeals the order striking his petition.
All statutory references are to the Penal Code unless otherwise noted.
The People, represented by the Office of the San Bernardino County District Attorney, urge us to affirm the order and declare Senate Bill No. 1437 unconstitutional under the same logic adopted by the trial court. They urge us to affirm the order, in the alternative, on grounds that section 1170.95—the resentencing provision of Senate Bill No. 1437—violates the separation of powers doctrine and deprives crime victims of the rights afforded them by the Victims' Bill of Rights Act of 2008, also known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008)).
In a pair of companion cases, we rejected each of the People's arguments and found no constitutional infirmity with Senate Bill No. 1437. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux).) For the reasons discussed in those opinions, we reach the same conclusions here. Therefore, we reverse the order striking Keel's petition.
II
BACKGROUND
A
Keel was a member of the Eastside Crips or East Side IE gang. In 2005, Barry Knight and another man approached Keel and a fellow gang member at an intersection. Knight and his companion intended to buy cocaine from the men. A confrontation arose and Knight was shot and killed.
A jury convicted Keel of first degree murder and the trial court sentenced him to an indeterminate prison term of 25 years to life. We ordered the trial court to correct an error in the abstract of judgment, but otherwise affirmed the judgment. (People v. Bolton (Oct. 8, 2009, No. D055691) [nonpub. opn.] (Bolton).)
B
In 2019, Keel, proceeding in propria persona, filed a petition in the trial court to vacate his murder conviction and obtain resentencing under section 1170.95. On a standard petition form, Keel checked boxes next to preprinted statements averring he was not the actual killer, could not be convicted of murder under Senate Bill No. 1437, and was eligible for relief under section 1170.95.
The People filed an informal opposition brief arguing Keel failed to make a prima facie showing that he was entitled to relief under section 1170.95. Together with their opposition brief, the People filed a motion to strike Keel's petition on grounds that Senate Bill No. 1437 was unconstitutional. They argued, among other things, that Senate Bill No. 1437 unconstitutionally amended Proposition 7 and Proposition 115, in violation of article II, section 10, subdivision (c) of the California Constitution.
The trial court granted the People's motion to strike Keel's petition. It reasoned that "Senate Bill 1437, by amending the scope of the Felony Murder Rule, [was] an amendment to Prop[osition] 7 and an unconstitutional one." The court opined that "the Legislature cannot amend or redefine murder in order to avoid the penalties that Prop[osition] 7 set for the crime." The court further found that Senate Bill No. 1437 amended Proposition 115 because it "substantially change[d]" the scope of persons who could be liable for first degree felony murder. Because the purportedly improper amendments provided sufficient grounds for the court to strike Keel's petition, the court did not address the remainder of the People's constitutional challenges to Senate Bill No. 1437.
During the hearing on the motion to strike, the court opined, based on its memory of the underlying murder trial from 11 years earlier, that Keel likely was a major participant in the underlying felony who acted with reckless indifference to human life. However, the court found it would be "premature" and "might not be proper" for it to reach the merits of Keel's petition. The court further noted it did "not have sufficient facts to determine whether or not a prima facie showing" was made.
Keel appealed the order striking his resentencing petition. The Attorney General permitted the Office of the District Attorney of San Bernardino County to represent the People's interests in this appeal.
III
DISCUSSION
The People challenge the constitutionality of Senate Bill No. 1437, including its resentencing provision, on four grounds. First, they argue Senate Bill No. 1437 unconstitutionally amended Proposition 7 because it limited the scope of persons who could be subject to the aggravated punishments approved by voters. Second, they claim Senate Bill No. 1437 impermissibly amended Proposition 115 because it narrowed the range of persons who could be found guilty of first degree felony murder for killings that occurred during the predicate felonies added to section 189 by Proposition 115. Third, they assert section 1170.95 intrudes upon a core function of the judiciary, in violation of the separation of powers doctrine. Finally, they contend section 1170.95 violates various provisions of Marsy's Law.
We rejected all four of these arguments in a pair of companion cases—Gooden, supra, 42 Cal.App.5th 270, and Lamoureux, supra, 42 Cal.App.5th 241. As we explained in Gooden, Senate Bill No. 1437 did not amend Proposition 7 because it did not "address the same subject matter [as Proposition 7]. It did not prohibit what Proposition 7 authorizes by, for example, prohibiting a punishment of 25 years to life for first degree murder or 15 years to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for instance, permitting a punishment of less than 25 years for first degree murder or less than 15 years for second degree murder. In short, it did not address punishment at all." (Gooden, at p. 282.) Instead, it " 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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. at p. 275.) Because Senate Bill No. 1437 and Proposition 7 concerned different subjects, we concluded Senate Bill No. 1437 did not amend Proposition 7. (Gooden, at p. 282.)
In Gooden, we also concluded there was no merit to the People's contention that Senate Bill No. 1437 amended Proposition 115. We acknowledged that both measures "altered the circumstances under which a person may be liable for murder," and thus addressed related matters. (Gooden, supra, 42 Cal.App.5th at p. 287.) However, we noted that Senate Bill No. 1437 did not "augment or restrict the list of predicate felonies on which felony murder may be based, which is the pertinent subject matter of Proposition 115." (Gooden, at p. 287.) Because Senate Bill No. 1437 neither augmented nor restricted the list of predicate felonies giving rise to felony-murder liability, we concluded it did not address a matter that Proposition 115 authorized or prohibited. (Gooden, at p. 287.) Therefore, it did not amend Proposition 115. (Gooden, at p. 287.)
We rejected the People's separation of powers argument in Lamoureux. In that case, we concluded section 1170.95 does not threaten the fundamental principle underpinning the separation of powers doctrine—the protection of individual liberty. (Lamoureux, supra, 42 Cal.App.5th at p. 260.) Rather, it "provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake in a criminal prosecution—the criminal defendant himself or herself." (Ibid.) We determined section 1170.95 also contains built-in limitations that respect petitioners' original judgments of conviction and, therefore, the judiciary's role in resolving petitioners' cases. (Lamoureux, at p. 262.) For both reasons, we concluded section 1170.95 does "not intrude upon a core function of the judiciary" in violation of the separation of powers doctrine. (Lamoureux, at p. 264.)
Finally, in Lamoureux, we determined section 1170.95 does not violate Marsy's Law. We explained that Marsy's Law established a victim's "right to a 'prompt and final conclusion' to postjudgment proceedings," but that right did not categorically foreclose postjudgment proceedings such as the resentencing procedure set forth in section 1170.95. (Lamoureux, supra, 42 Cal.App.5th at pp. 264, 265.) "On the contrary, [Marsy's Law] expressly contemplated the availability of ... postjudgment proceedings ...." (Id. at pp. 264-265.) Thus, there was no irreconcilable conflict between the resentencing procedure and the right of crime victims to a prompt and final conclusion to postjudgment proceedings. (Ibid.) Further, we reasoned that Senate Bill No. 1437 did not deprive crime victims of their right to have their safety, the safety of their families, and the general public considered before any parole or postjudgment release decision is made. (Id. at p. 265.) Assuming without deciding the disposition of a section 1170.95 petition is a postjudgment release decision, we concluded the trial court may consider these factors when resentencing successful petitioners. (Id. at p. 266.)
The People offer us no reason to depart from our conclusions in Gooden and Lamoureux. Nor do they present any arguments we have not already rejected in those cases. Therefore, we adhere to our decisions in Gooden and Lamoureux and conclude the trial court erred in striking Keel's petition to vacate his murder conviction and obtain resentencing under section 1170.95. We offer no opinion as to whether the trial court should issue an order to show cause or grant the relief requested in the petition.
The People requested judicial notice of ballot and legislative materials pertaining to Senate Bill No. 1437, Proposition 7, Proposition 115, and other proposed legislation. We deny the request as unnecessary to the disposition of this appeal. We further deny the People's request for judicial notice of our prior decision affirming Keel's judgment of conviction, Bolton, supra, which is already included in the appellate record. --------
IV
DISPOSITION
The order is reversed.
McCONNELL, P. J. WE CONCUR: AARON, J. DATO, J.