Opinion
B297518
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR LEOBARDO AVILA, Defendant and Appellant.
Jennifer Hansen, 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, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA154760) APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Reversed. Jennifer Hansen, 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, for Plaintiff and Respondent.
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Hector Leobardo Avila participated in a robbery during which his accomplice killed Ernesto Flores. In 1998, a jury found Avila guilty of first degree murder (Pen. Code, § 187, subd. (a); count 1) and of first degree robbery (§ 211; count 2). As to both counts, the jury found true the allegation that a principal was armed during the commission of the crime (§ 12022, subd. (a)(1)). The jury also found true the special circumstance allegation that the murder was committed while Avila was engaged in the attempted commission of a robbery (§ 190.2, subd. (a)(17)). On September 10, 1998, the trial court sentenced Avila to life without the possibility of parole (LWOP) on count 1 plus one year for the firearm enhancement. The court stayed "any sentence" on count 2. Thereafter, our California Supreme Court in People v. Banks (2015) 61 Cal.4th 788 clarified under what circumstances a LWOP sentence for an aider and abettor of felony murder is constitutionally permissible. Applying Banks to Avila's case, this court reversed the special circumstance finding and remanded the matter for resentencing. (In re Avila (June 27, 2018, B284118 [nonpub. opn.].) Accordingly, the trial court resentenced Avila to 25 years to life for first degree murder (count 1) plus one year for the firearm enhancement. The trial court imposed but stayed five years on count 2.
All further statutory references are to the Penal Code. --------
Meanwhile, our Legislature had enacted Senate Bill No. 1437, which took effect January 1, 2019. (Stats. 2018, ch. 1015.) Before the Legislature enacted that bill, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of the target crime and of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161.) After the bill's enactment, malice may no longer be imputed to a person based solely on the person's participation in the crime; the person must now act with malice aforethought to be convicted of murder. (People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019, S258234.) Further, a participant in enumerated crimes is liable under the felony murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life. (Id. at pp. 749-750; § 189, subd. (e).)
Senate Bill No. 1437 also added section 1170.95. That section permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition the sentencing court for vacation of their convictions and resentencing, if certain conditions are met. (People v. Munoz, supra, 39 Cal.App.5th at p. 750.) If, for example, there is a prior finding that a petitioner did not act with reckless indifference to human life or was not a major participant in the felony, then the sentencing court shall vacate the petitioner's conviction and resentence the petitioner. (§ 1170.95, subd. (d)(2).)
Because we made such a finding in In re Avila, supra, B284118, Avila petitioned the trial court for resentencing under section 1170.95. The People opposed the petition on the ground that Senate Bill No. 1437 unconstitutionally amends Propositions 7 and 115, the resentencing provision violates the separation of powers doctrine, and the resentencing provisions violate the Victims' Bill of Rights Act of 2008. Agreeing with the People, the trial court denied Avila's petition on the ground that Senate Bill No. 1437 is unconstitutional.
However, since the trial court's ruling, constitutional challenges to Senate Bill No. 1437 have been rejected. (See generally People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux); People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270.) Gooden found that Senate Bill No. 1437 does not unconstitutionally amend Proposition 7, which increased the punishment for first and second degree murder and expanded special circumstance murder. (Gooden, at pp. 280-286.) In contrast, Senate Bill No. 1437 does not speak to the penalties for murder; it amends the mental state required for murder. (Gooden, at p. 287.) Gooden, at page 288, similarly found that Senate Bill No. 1437 does not amend Proposition 115, which made more offenses eligible for felony murder. Again, Senate Bill No. 1437 "did not augment or restrict the list of predicate felonies on which felony murder may be based" but instead "amended the mental state necessary for a person to be liable for murder." (Gooden, at p. 287.) Gooden thus concluded that because Senate Bill No. 1437 does not amend Propositions 7 and 115, it does not violate article II, section 10, subdivision (c) of the California Constitution, which provides that the Legislature may amend or repeal an initiative statute only with voter approval, unless the original initiative permits amendment or repeal without voter approval. (Gooden, at pp. 279, 289.)
Next, Lamoureux, supra, 42 Cal.App.5th at page 246 found that Senate Bill No. 1437 does not violate state separation of powers principles. First, the bill was part of a broad penal reform to ensure our state's murder laws fairly address individual culpability and to reduce prison overcrowding. (Lamoureux, at pp. 247, 256.) Having such a purpose, any interference with the executive's power of clemency is merely incidental and not an impermissible encroachment on the core functions of the executive. (Id. at p. 256.) Second, the bill does not intrude on a core function of the judiciary by allowing prisoners serving final sentences to seek relief. To the extent retroactive reopening of final judgments implicates individual liberty interests, Senate Bill No. 1437 does not present any risk to those interests. (Lamoureux, at p. 261.) "On the contrary, it provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake in a criminal prosecution," the criminal defendant. (Ibid.) Also, the legal landscape is rife with legislation allowing petitioners to reopen final judgments of conviction without regard to their finality as of the effective date of the legislation, for example, Propositions 36 and 47. (Lamoureux, at pp. 262-263.)
Finally, Lamoureux, supra, 42 Cal.App.5th at pages 264 to 266 found that section 1170.95 does not violate crime victims' rights as enshrined in Marsy's Law. Although Marsy's Law established a victim's right to prompt and final conclusion to postjudment proceedings, Marsy's Law did not foreclose postjudgment proceedings altogether. (Lamoureux, at p. 265.) Also, section 1170.95 does not deprive victims of safety-related rights because trial courts may consider that factor when resentencing the defendant on any remaining counts. (Lamoureux, at pp. 265-266.)
We agree with the reasoning in Lamoureux and Gooden, and likewise conclude that Senate Bill No. 1437 is constitutional. Moreover, the Attorney General agrees that Senate Bill No. 1437 is constitutional. Avila is therefore entitled to have his murder conviction vacated and to be resentenced on the remaining count. (See, e.g., People v. Ramirez (2019) 41 Cal.App.5th 923, 933.)
DISPOSITION
The order is reversed. The matter is remanded with the direction to grant the petition, to vacate Hector Leobardo Avila's murder conviction, and to resentence him on the remaining count.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
LAVIN, J.