Opinion
G058358
11-20-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DAI-ICHI YU, Defendant and Appellant.
Christopher Nalls, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10WF0524) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Terri K. Flynn-Peister, Judge. Reversed and remanded. Christopher Nalls, 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.
* * *
In 2019, defendant Christopher Dai-Ichi Yu filed a petition under Penal Code section 1170.95, seeking relief from a felony murder conviction he suffered in 2011. Section 1170.95 was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which also amended sections 188 and 189 to limit accomplice liability for murder under the natural and probable consequences doctrine and the felony-murder rule. (Stats. 2018, ch. 1015.) Under section 1170.95, qualifying defendants can petition the superior court to have their murder convictions vacated and be resentenced. (Stats. 2018, ch. 1015, § 4.) Here, the trial court did not address the merits of defendant's petition; instead, the court denied the petition on the ground that Senate Bill 1437 amends statutes approved by voters in Propositions 7 and 115 and is therefore unconstitutional.
All further statutory references are to the Penal Code.
Appealing from the order denying his petition, defendant argues Senate Bill 1437 is constitutional. The California Attorney General filed an amicus curiae brief on behalf of defendant, defending the constitutionality of Senate Bill 1437. The Orange County District Attorney, representing the People in this appeal, maintains Senate Bill 1437 unconstitutionally amends Propositions 7 and 115 and the court's order should be affirmed.
Since the trial court's ruling, Senate Bill 1437 has been upheld as constitutional by panels of this court (People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762 (Solis); People v. Prado (2020) 49 Cal.App.5th 480) and by our colleagues 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)) and Division Two (People v. Lippert (2020) 53 Cal.App.5th 304; People v. Johns (2020) 50 Cal.App.5th 46). Several other appellate districts have concurred. (People v. Lombardo (2020) 54 Cal.App.5th 553, 560-561 [3d App. Dist.]; People v. Murillo (2020) 54 Cal.App.5th 160, 166, fn. 3 [2d App. Dist. Div. 1]; People v. Nash (2020) 52 Cal.App.5th 1041, 1053 [5th App. Dist.]; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 902, 917 [3d App. Dist.]; People v. Lopez (2020) 51 Cal.App.5th 589, 601-602 [2d App. Dist, Div. 2]; People v. Alaybue (2020) 51 Cal.App.5th 207, 211-222 [6th App. Dist.]; People v. Smith (2020) 49 Cal.App.5th 85, 91-92, rev. granted July 22, 2020, S262835 [2d App. Dist. Div. 5]; People v. Bucio (2020) 48 Cal.App.5th 300, 306-312 [2d App. Dist., Div. 6].) We agree with these well-reasoned decisions and conclude Senate Bill 1437 is constitutional. We reverse the court's order denying defendant's petition and remand the matter for the court to consider the petition on its merits.
Review was granted in Smith, supra, 49 Cal.App.5th 85, S262835, on the issues of (1) whether a superior court can consider the record of conviction in determining whether a defendant made a prima facie showing of eligibility for relief under section 1170.95 and (2) when the right to appointed counsel arises under section 1170.95, subdivision (c).
FACTUAL AND PROCEDURAL HISTORY
In 2010, defendant was involved in a scam drug deal that resulted in the death of Tina Tuyet Huynh. Huynh tried to buy ecstasy from defendant and his codefendant Lynn Ai Quach. After Huynh showed defendant her purchase money, he grabbed it, and the car, in which defendant was a passenger, sped off with Huynh holding onto the side. Huynh held on for several blocks but let go some point after defendant fired a shot in the air. Huynh fell to the street and died of blunt force trauma. (People v. Yu (Apr. 16, 2013, G046106) [nonpub. opn.].)
A jury convicted defendant of murder (§ 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). At trial, the prosecution's theory of liability was that the murder occurred during the commission of a robbery. The jury found defendant committed the murder and attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that he personally discharged a firearm in the commission of those offenses (§ 12022.53, subd. (c)). In his appeal from the judgment, we affirmed defendant's convictions but remanded for sentencing errors. (People v. Yu, supra, G046106.) At the resentencing hearing, the court sentenced defendant to prison for a determinate term of 59 years and an indeterminate term of 15 years to life.
In 2019, defendant petitioned to vacate his murder conviction and for resentencing under section 1170.95. The district attorney conceded defendant had "made a prima facie showing that he falls within the provisions of" section 1170.95, but the district attorney opposed the petition on two grounds: (1) Senate Bill 1437 is unconstitutional because it amends Propositions 7 and 115; and (2) even if constitutional, defendant is not entitled to relief because he was the actual killer, acted with malice aforethought, and was "a major participant in the underlying felony robbery and acted with reckless indifference to human life." The court did not determine whether defendant was entitled to relief but instead denied the petition on the ground that Senate Bill 1437 materially amends section 190, as enacted by the electorate in Proposition 7, and materially amends sections 189 and 190.2, as amended by the electorate in Proposition 115. Defendant appealed.
DISCUSSION
Senate Bill 1437 eliminated liability for murder under the natural and probable consequences doctrine by amending section 188 to prohibit malice from being imputed to a defendant based only on his or her participation in a crime. (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) It also limited application of the felony-murder rule by amending section 189 to provide that a defendant can only be convicted of first degree felony murder if the defendant 1) was the actual killer; or 2) was not the killer but with the intent to kill, aided, abetted, induced or otherwise assisted the actual killer in the commission of first degree murder; or 3) "was a major participant in the underlying felony and acted with reckless indifference to human life . . . ." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.) In section 1170.95, the Legislature created a process for the retroactive application of these statutory changes. Pursuant to section 1170.95, a defendant previously convicted of murder under either the natural and probable consequences theory or the felony-murder rule, who could not be convicted of murder now under the amended statutes, can petition the court for vacatur of the murder conviction and resentencing. (Stats. 2018, ch. 1015, § 4.)
These limitations on the felony-murder rule do not apply when the victim is a peace officer killed in the course of the officer's duties and the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his/her duties. (§ 189, subd. (f).)
The court denied defendant's section 1170.95 petition on the ground that Senate Bill 1437 violates article II, section 10, subdivision (c) of the California Constitution by amending Propositions 7 and 115. This constitutional provision 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.) However, our Supreme Court has explained, "[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.'" (People v. Kelly (2010) 47 Cal.4th 1008, 1026, fn. 19; accord, People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
We previously considered the issue of whether Senate Bill 1437 constitutes an unconstitutional amendment of Propositions 7 and 115 in Cruz, supra, 46 Cal.App.5th 740 and Solis, supra, 46 Cal.App.5th 762. In these decisions, we concluded Senate Bill 1437 amends neither initiative and is constitutional. The arguments raised by the district attorney here are the same ones we rejected in Cruz and Solis. We see no reason to depart from our analysis and conclusions in our prior cases.
We reached the same conclusion in People v. Prado, supra, 49 Cal.App.5th 480, albeit through a different analysis.
Proposition 7, when approved by voters in a statewide election in November 1978, increased the penalties for first and second degree murder by amending section 190. (Cruz, supra, 46 Cal.App.5th at pp. 753-754.) In Cruz, we rejected the district attorney's assertion that Senate Bill 1437's amendments to sections 188 and 189 alter the punishment for murder set by Proposition 7. (Cruz, at p. 754.) We explained: "Senate Bill 1437 does not alter the penalty for murder. After the enactment of Senate Bill 1437, a first degree murder conviction still results in a penalty of life imprisonment with the possibility of parole after 25 years and a second degree murder conviction results in a penalty of life imprisonment with the possibility of parole after 15 years, as required by Proposition 7. Senate Bill 1437 does not authorize reduced sentences for such convictions. Thus, Senate Bill 1437's amendments do not take away from Proposition 7's provisions." (Ibid.)
In Cruz and Solis, we also rejected the district attorney's contention that the Legislature could not alter the elements of murder with the passage of Senate Bill 1437 because the penalty for murder approved by the voters in Proposition 7 was based on the definition of murder at that time. (Cruz, supra, 46 Cal.App.5th at pp. 754-757; Solis, supra, 46 Cal.App.5th at pp. 775-776, 779.) In both cases, we reviewed the ballot materials for Proposition 7. (Cruz, at pp. 757-759; Solis, at pp. 776-777.) We concluded these materials did not indicate that the electorate intended to prohibit later modification of the elements of murder (Cruz, at p. 757) and Senate Bill 1437 does not circumvent the voter's intent. (Solis, at p. 779.) In Cruz, we explained the Legislature was free to amend sections 188 and 189 in Senate Bill 1437 because the elements of murder are related to but distinct from the punishment for murder set by Proposition 7. (Cruz, at pp. 755-756; accord, Solis, at p. 779 ["[t]he definition of a crime is distinct from the punishment for a crime"].)
In Cruz and Solis, we also rejected the district attorney's assertions that Senate Bill 1437 unconstitutionally amends Proposition 115. (Cruz, supra, 46 Cal.App.5th at pp. 759-761; Solis, supra, 46 Cal.App.5th at pp. 780-783.) Proposition 115 amended section 189 by adding five serious felonies to the list of predicate offenses for first degree felony murder. (Cruz, at p. 759.) We found unpersuasive the district attorney's contention that Senate Bill 1437 "substantially changes" section 189 "by requiring additional elements be proved for accomplices." In Cruz, we explained: "The only change made to section 189 by Proposition 115 was the addition of five serious felonies to the list of predicate felonies for first degree felony-murder liability. . . . While the Legislature cannot remove Proposition 115's five felonies from the list for first degree felony-murder liability, it can limit liability for accomplices under the felony-murder rule." (Cruz, at p. 760.)
We also rejected the district attorney's argument 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, supra, 46 Cal.App.5th at p. 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.)
In Solis, we rejected the district attorney's assertion that the Legislature was prohibited from amending any portion of section 189 by a simple majority "because Proposition 115 reenacted section 189 in full." (Solis, supra, 46 Cal.App.5th at p. 782.) Based on relevant case law, we concluded "reenactment of section 189 in full by Proposition 115 did not affect the Legislature's ability to revise any portion of section 189 not directly addressed by the initiative." (Id. at p. 783.)
Concluding in Cruz and Solis that Senate Bill 1437 was constitutional, we found ourselves in agreement with our Division One colleagues in Gooden, supra, 42 Cal.App.5th 270 and Lamoureux, supra, 42 Cal.App.5th 241, who concluded that Senate Bill 1437 does 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.) In Gooden, the court explained, "Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative." (Gooden, supra, 42 Cal.App.5th at p. 282; accord, Cruz, supra, 46 Cal.App.5th at p. 756.) "[T]he 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.)
In conclusion, Senate Bill 1437 amends neither Proposition 7 nor Proposition 115 within the meaning of article II, section 10 of the California Constitution. We reverse the court's order denying defendant's section 1170.95 petition and remand for further proceedings on the merits of defendant's petition.
We grant the district attorney's unopposed request for judicial notice of legislative materials concerning Senate Bill 1437, ballot pamphlet materials for Propositions 7 and 115, and former versions of sections 187 through 189.
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: ARONSON, ACTING P. J. THOMPSON, J.