Opinion
G058169
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES DIEP, Defendant and Appellant.
Kristen Owen, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 05ZF0092) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, James Edward Rogan, Judge. Reversed and remanded. Kristen Owen, 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.
James Diep appeals from a postjudgment order after the trial court denied his petition pursuant to Penal Code section 1170.95, which the Legislature enacted in Senate Bill No. 1437 (S.B. 1437). Diep argues the trial court erred by concluding S.B. 1437 was unconstitutional because it impermissibly amended two voter initiatives. We agree and reverse the order.
All further statutory references are to the Penal Code.
FACTS
In 2007, a jury convicted Diep of first degree murder (§ 187, subd. (a)), attempted murder (§§ 664, subd. (a), 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). As to the first two counts, as relevant here, the jury found it true Diep was a gang member who vicariously discharged a firearm (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced Diep to 50 years to life in prison. We affirmed the judgment. (People v. Diep (June 5, 2009, G039379) [nonpub. opn.].)
In 2019, Diep filed a section 1170.95 petition to vacate his murder conviction and be resentenced. The Orange County District Attorney (OCDA) filed opposition. The trial court denied the petition, concluding S.B. 1437 (Stats. 2018, ch. 1015, §§ 2-4) was unconstitutional because it impermissibly amended Propositions 7 and 115.
DISCUSSION
"Legislation unconstitutionally amends an initiative statute if it changes that statute '"'by adding or taking from it some particular provision.'"' [Citations.] Legislation may address the same subject matter as an initiative, and may even augment the provisions of an initiative, without amending it. The key to our analysis is determining '"whether [the legislation] prohibits what the initiative authorizes, or authorizes what the initiative prohibits."' [Citation.]" (People v. Solis (2020) 46 Cal.App.5th 762, 769 (Solis).) Although our review is de novo, we presume the Legislature acted within its authority. (Id. at p. 771.)
An actual killer may be convicted of murder. (People v. Cruz (2020) 46 Cal.App.5th 740, 751 (Cruz).) Additionally, an accomplice of the actual killer can be convicted of murder pursuant to vicarious liability theories, including the natural and probable consequences doctrine and the felony-murder rule. (Id. at pp. 751-752.) Under both theories, the accomplice's intent to kill is irrelevant. (Id. at p. 752.)
In 1978, the electorate adopted Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)), which increased the penalties for first and second degree murder and strengthened California's death penalty law. (Solis, supra, 46 Cal.App.5th at pp. 772-773; Cruz, supra, 46 Cal.App.5th at pp. 753-754.)
In 1990, the electorate adopted Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), which as relevant here added five felonies to the list of felonies for the felony-murder rule and revised the scope of capital liability. (Solis, supra, 46 Cal.App.5th at p. 773; Cruz, supra, 46 Cal.App.5th at p. 759.)
In 2018, the Legislature in S.B. 1437 amended the natural and probable consequences doctrine and the felony-murder rule to ensure "'[a] person's culpability for murder [is] premised upon that person's own actions and subjective mens rea.' [Citation.]" (Cruz, supra, 46 Cal.App.5th at p. 752.) S.B. 1437 amended sections 188 and 189.
Section 188, subdivision (a)(3), now states that "to be convicted of murder, a principal in a crime shall act with malice aforethought[]" and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." Section 189 now provides that a person can only be found guilty of murder if that person (1) was the actual killer, or (2) aided, abetted, or otherwise assisted the actual killer and had the intent to kill, or (3) was a major participant in an underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)
Additionally, S.B. 1437 added section 1170.95, which allows defendants previously convicted of murder under a natural and probable consequences theory or felony murder to petition the trial court for vacation of their murder convictions and for resentencing if they could not be convicted of murder now based on the amendments to sections 188 and 189. Upon receipt of a petition, a court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (§ 1170.95, subd. (c).) If petitioner makes such a showing, the court must issue an order to show cause. (§ 1170.95, subd. (c).) The court must hold a hearing to determine whether to vacate the petitioner's murder conviction and resentence the petitioner. (§ 1170.95, subd. (d)(1).) If the court determines the petitioner is entitled to relief, his or her murder conviction "shall be redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subd. (e).)
Diep contends S.B. 1437 did not amend Propositions 7 and 115. Two cases from this court have agreed with this conclusion. (Solis, supra, 46 Cal.App.5th at p. 769; Cruz, supra, 46 Cal.App.5th at p. 747.) And Solis and Cruz rejected the same claims the OCDA makes here. Additionally, two cases from the Fourth District, Division One have reached the same conclusion. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275; People v. Lamoureux (2019) 42 Cal.App.5th 241, 251.) We find the reasoning in these cases persuasive and follow them here.
In his capacity as California's chief law officer (Cal. Const., art. V, § 13), the Attorney General agrees.
The OCDA filed a request for judicial notice of legislative materials, propositions, and statutes. Judicial notice is unnecessary because citation to the material is sufficient. (Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4; Citizens to Save California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 740, fn. 2.) The request is denied.
S.B. 1437 did not unconstitutionally amend Proposition 7 because S.B. 1437 concerned the elements of murder and Proposition 7 was concerned with the penalties for murder. (Solis, supra, 46 Cal.App.5th at p. 779; Cruz, supra, 46 Cal.App.5th at pp. 747, 754, 757.) S.B. 1437 did not unconstitutionally amend Proposition 115 because S.B. 1437 did not augment or restrict the list of predicate felonies on which felony murder may be based, which was Proposition 115's subject matter. (Solis, supra, 46 Cal.App.5th at p. 781; Cruz, supra, 46 Cal.App.5th at p. 760.) In conclusion, S.B. 1437 did not unconstitutionally amend Propositions 7 or 115. Thus, the trial court erred by concluding S.B. 1437 was unconstitutional. Because of our conclusion, we need not address Diep's claim the Legislature's enactment of Assembly Bill No. 991 (Stats. 2019, ch. 497, § 192) renders the OCDA's arguments moot.
DISPOSITION
The postjudgment order is reversed and the matter is remanded for further proceedings on the merits of Diep's petition.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.