Opinion
G057938
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHMAN EM, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06ZF0140) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Julian W. Bailey, Judge. Reversed and remanded with directions. Request for judicial notice. Granted. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas A. 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.
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INTRODUCTION
Pursuant to Penal Code section 1170.95, defendant Richman Em filed a petition for resentencing. (Further undesignated statutory references are to the Penal Code.) The trial court denied defendant's petition on the ground Senate Bill No. 1437, which had enacted section 1170.95, was unconstitutional because it amended statutes addressed by two voter-approved initiatives: Propositions 7 and 115.
In People v. Solis (2020) 46 Cal.App.5th 762 (Solis) and People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz), panels of this court concluded that Senate Bill No. 1437 did not unconstitutionally amend either initiative. Agreeing with the analyses and the conclusions set forth in those opinions, as well as other published opinions addressing this issue, we reverse the trial court's order and remand with directions to consider defendant's petition for resentencing on its merits.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 11, 2006, Narong Thongdeng shot and killed Miguel Davila while Davila sat in his car. Defendant was standing next to Thongdeng; defendant claimed he believed Thongdeng was only going to steal Davila's car and belongings. Thongdeng and defendant were both members of the Exotic Family City Crips gang.
A jury found defendant guilty of felony murder and active participation in a criminal street gang. (§§ 187, subd. (a), 186.22, subd. (a).) The jury also found true sentencing enhancement allegations that defendant was liable for the vicarious discharge of a firearm by a gang member, causing death (§ 12022.53, subds. (d) & (e)(1)), and the murder had been committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). Defendant was sentenced to a total of 50 years to life.
Defendant appealed from the judgment. A panel of this court affirmed the convictions, and a majority of that panel affirmed defendant's sentence. (People v. Em (2009) 171 Cal.App.4th 964.)
In January 2019, defendant filed a petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. The trial court denied the petition, finding that Senate Bill No. 1437, which enacted section 1170.95, was unconstitutional. Defendant appealed from the postjudgment order.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited application of the felony murder rule by modifying the mens rea element of that crime. The legislation amended section 188 by adding that malice could not be imputed to a person based only on participation in a crime. (Id., subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Section 189 was amended to specify that a person could 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. (Id., subd. (e)(1)-(3), as amended by Stats. 2018, ch. 1015, § 3.) Finally, Senate Bill No. 1437 created a procedure by which a defendant convicted of felony murder could seek to have the conviction vacated. (§ 1170.95, added by Stats. 2018, ch. 1015, § 4.)
We will take judicial notice of the documents attached to the unopposed request for judicial notice filed by the district attorney. These documents include the former versions of the statutes amended by Senate Bill No. 1437; legislative history of Senate Bill No. 1437; and the ballot measures for Proposition 7 and Proposition 115. These are matters of which an appellate court may properly take judicial notice. (Evid. Code, §§ 451, subd. (a), 452, subds. (b) & (c).)
Proposition 7 had increased the penalties for first and second degree murder and expanded the list of special circumstances that, if found true, would require a sentence of death or life imprisonment without the possibility of parole. Proposition 115 expanded the number of crimes to which the felony murder rule would apply and made numerous changes to various statutes to protect the rights of crime victims and witnesses in criminal cases.
The district attorney argues that Senate Bill No. 1437 unconstitutionally amends Propositions 7 and 115 by decreasing the number of people who are subject to conviction, and thus punishment, for murder. In Solis and Cruz, we rejected the district attorney's arguments.
"A statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless the initiative statute otherwise provides. [Citation.] '"[T]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.'"'" (Solis, supra, 46 Cal.App.5th at p. 771.)
"For purposes of article II, section 10 of the California Constitution, legislation amends an initiative if it '"'change[s] an existing initiative statute by adding or taking from it some particular provision.'"' [Citations.] '[T]his does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative's provisions, is necessarily an amendment for these purposes. "The Legislature remains free to address a '"related but distinct area"' [citations] or a matter that an initiative measure 'does not specifically authorize or prohibit.'" [Citations.] In deciding whether this particular provision amends Proposition 115, we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits.'" (Solis, supra, 46 Cal.App.5th at pp. 771-772.)
With respect to Proposition 7, we held: "Proposition 7 provided greater penalties for those convicted of murder and increased the number of special circumstances that could form the basis of a sentence of death or life in prison without parole. In contrast, Senate Bill No. 1437 changed the elements of murder by limiting the circumstances in which malice can be implied, thereby restricting the application of the felony-murder rule and the natural and probable consequences doctrine. Senate Bill No. 1437 is neither inconsistent with Proposition 7, nor does it circumvent the electorate's intent." (Solis, supra, 46 Cal.App.5th at p. 779; see Cruz, supra, 46 Cal.App.5th at p. 755.)
With respect to Proposition 115, we held: "Senate Bill No. 1437 . . . limits liability for felony murder and murder under the natural and probable consequences doctrine to an individual who is the actual killer, or who had the intent to kill and undertook specific actions to assist in commission of the murder, or who was a major participant in the underlying felony and acted with reckless indifference to human life. These limitations do not directly modify or amend the language of Proposition 115." (Solis, supra, 46 Cal.App.5th at p. 781; see Cruz, supra, 46 Cal.App.5th at p. 760.)
The Fourth Appellate District, Division One, reached the same conclusion in a pair of cases challenging the constitutionality of Senate Bill No. 1437. In People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden), the appellate court concluded "Senate Bill [No.] 1437 was not an invalid amendment to Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives." (Id. at p. 275.) In People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux), the same appellate court used the same analysis as it had in Gooden to again conclude Senate Bill No. 1437 did not unconstitutionally amend the earlier enacted initiatives. (Lamoureux, supra, 42 Cal.App.5th at p. 246.) The Lamoureux court further concluded that "the resentencing provision of Senate Bill [No.] 1437 does not contravene separation of powers principles or violate the rights of crime victims." (Ibid.)
Similarly, in People v. Bucio (2020) 48 Cal.App.5th 300, 306, Division Six of the Second Appellate District held that Senate Bill No. 1437 was constitutional.
Our analyses and holdings in Solis and Cruz apply equally here, as do the holdings of Gooden, Lamoureux, and Bucio. In light of our conclusion, we need not address the additional grounds for affirmance discussed in People v. Prado (2020) ___ Cal.App.5th ___ .
DISPOSITION
The postjudgment order is reversed and the matter is remanded with directions to consider the merits of defendant's petition under Penal Code section 1170.95.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.