Opinion
B297679 B299578
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ANTHONY COOPER, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. KARL EARL SMITH, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Karl Smith. Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant William Cooper. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey and Thomas S. Patterson, Senior Assistant Attorneys General, Tamar Pachter, Supervising Deputy Attorney General, Amanda V. Lopez, Idan Ivri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA067451) APPEAL from orders of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Reversed and remanded with directions. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Karl Smith. Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant William Cooper. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey and Thomas S. Patterson, Senior Assistant Attorneys General, Tamar Pachter, Supervising Deputy Attorney General, Amanda V. Lopez, Idan Ivri, and Nelson R. Richards, Deputy Attorneys General, for Plaintiff and Respondent.
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MEMORANDUM OPINION
The trial court summarily denied co-defendants Karl Earl Smith's and William Cooper's separate petitions for resentencing pursuant to newly enacted Penal Code section 1170.95 (all statutory citations refer to the Penal Code). That provision was part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437), effective January 1, 2019, which addressed "certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189" and by adding "section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)" (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).)
The trial court believed Smith and Cooper were "seemingly . . . entitled to relief," but held SB 1437 (1) violated the California Constitutional provisions added by Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)); (2) violated Article 1, § 28, subdivision (a)(6) and Article 1, § 29 of the California Constitution by reopening final judgments; and (3) violated the state constitutional separation of powers doctrine. On appeal, all parties argue the trial court erred and SB 1437 is constitutional.
In two comprehensive opinions, the Fourth Appellate District, Division 1, analyzed and rejected each of these points, finding SB 1437 constitutional. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux).) The parties find Gooden and Lamoureux persuasive. Given these circumstances, we will not enter the fray. As a result, Smith's and Cooper's alternative argument they were denied due process when the court summarily denied their petitions without counsel and without a hearing is moot.
The parties urge us to direct the trial court to grant the petitions and vacate Smith's and Cooper's murder convictions because they are eligible for resentencing. Section 1170.95 created a detailed petitioning procedure to determine whether a defendant is entitled to relief. (§ 1170.95, subds. (b)-(d); Martinez, supra, 31 Cal.App.5th at pp. 723-724.) However, "[t]he parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." (§ 1170.95, subd. (d)(2).) This provision imposes "a mandatory duty on the court to vacate defendant's sentence and resentence him whenever there is a prior finding of this court that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life." (People v. Ramirez (2019) 41 Cal.App.5th 923, 932 (Ramirez).) The trial court must "proceed directly to resentencing under such a circumstance." (Ibid.)
Section 1170.95, subdivision (d)(2) applies here to bypass the procedural steps in section 1170.95. Smith and Cooper were convicted of felony murder with robbery-murder and burglary-murder special circumstances. (People v. Smith et al. (Mar. 27, 2007, B183145 & B186586) [nonpub. opn.] at p. 1.) On appeal in 2007, we reversed the special circumstances for both defendants because the evidence was insufficient to support the required finding of reckless indifference to life. (Id. at p. 7.) In light of our holding, Smith's and Cooper's felony murder convictions are eligible for resentencing pursuant to SB 1437. (§ 189, subd. (e)(1)-(3) [amended felony murder provision now requires proof defendant was actual killer, intended to kill, or was a "major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2"]; § 1170.95, subd. (a)(3) [defendant may petition for resentencing if "the petitioner could not be convicted of first or second degree murder because of changes to Section 188 and 189 made" by SB 1437].) We will direct the trial court to vacate Smith's and Cooper's murder convictions and resentence them pursuant to section 1170.95, subdivision (e). (See Ramirez, supra, 41 Cal.App.5th at p. 933 [vacating murder conviction and ordering immediate resentencing based on finding in prior habeas proceeding defendant was not shown to have been a major participant in underlying felony or to have acted with reckless indifference to life].)
DISPOSITION
The orders denying Smith's and Cooper's petitions for resentencing are reversed. The matters are remanded to the superior court with directions to grant the petitions, vacate their murder convictions, and resentence them according to section 1170.95, subdivision (e).
The remittitur shall issue forthwith.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
STRATTON, J.
Lamoureux and Gooden did not specifically cite Article 1, § 29 of the California Constitution, which was enacted as part of Proposition 115 and gives the People the right to due process. For the reasons explained in those cases, SB 1437 does not reopen final judgments in a way that would violate the People's right to due process. We also note due process "has been invoked to affirm [the prosecution's] right to be heard in various preliminary or collateral proceedings . . . ." (Miller v. Superior Court (1999) 21 Cal.4th 883, 896.) The petitioning procedure in section 1170.95 gives the People the right to be heard and respond to a resentencing petition. (§ 1170.95, subds. (b)-(d).)