Opinion
E074995
06-10-2021
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANDREW GAY, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI08133 Eric M. Nakata, Judge. Reversed with directions.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) prospectively amended Penal Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony-murder rule to persons who are the actual killer, who act with the intent to kill, or who are a major participant in a felony and act with reckless indifference for human life, and to eliminate the offense of murder under the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 846, 848.) In addition, Senate Bill No. 1437 enacted section 1170.95 (Stats. 2018, ch. 1015, § 4), which permits persons previously convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine, but who could not be so convicted under the amendments enacted by Senate Bill No. 1437, to petition the superior court to vacate their murder convictions and to resentence them on any remaining counts.
All further statutory references are to the Penal Code unless otherwise indicated.
In 1999, a jury convicted defendant and appellant James Andrew Gay of one count of first degree murder and one count of second degree murder. Less than one month after Senate Bill No. 1437 went into effect, defendant petitioned to have his convictions vacated. The People, as represented by the District Attorney of San Bernardino County, opposed the petition and requested the superior court strike the petition. The superior court agreed with the district attorney that Senate Bill No. 1437 is unconstitutional and entered an order striking defendant's petition. Defendant appealed, contending Senate Bill No. 1437 is constitutional. The People, as represented by the California Attorney General, agree Senate Bill No. 1437 is constitutional, and that we must reverse the order striking defendant's petition and remand for the superior court to consider its merits.
To date, every California appellate court to address the constitutionality of Senate Bill No. 1437, including this court, have rejected the claims made below by the district attorney. (E.g., People v. Johns (2020) 50 Cal.App.5th 46 (Johns); People v. Lippert (2020) 53 Cal.App.5th 304 (Lippert).) Therefore, we reverse the order striking defendant's petition and remand for further proceedings on the petition.
I.
The underlying facts of this case are irrelevant to the purely legal issue on appeal.
On May 3, 1999, a jury convicted defendant of one count of first degree murder for the killing of C.H. (§ 187, subd. (a), count 1), and one count of second degree murder for the killing of S.M. (§ 187, subd. (a), count 2). The trial court sentenced defendant to state prison for 25 years to life on count 1, and a consecutive term of 15 years to life for count 2, for a total indeterminate state prison term of 40 years to life. We affirmed the judgment on direct appeal. (People v. Gay (July 11, 2000, E025449) [nonpub. opn.].)
Less than one month after Senate Bill No. 1437 went into effect, defendant, acting as his own attorney, filed a petition in the superior court requesting the court vacate his sentence pursuant to section 1170.95. Using a check-box form, defendant declared he had been convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine but, as of January 1, 2019, he could no longer be convicted of murder because of the amendments to sections 188 and 189. He checked the boxes that indicated: “I was not the actual killer”; “I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree”; and “I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony.” He requested the court appoint counsel for him.
The district attorney moved to strike defendant's petition, arguing Senate Bill No. 1437 was unconstitutional because: (1) sections 188 and 189 were previously amended by Propositions 7 and 115, and Senate Bill No. 1437 did not satisfy the mandates of those voter initiatives for future legislative amendments; (2) Senate Bill No. 1437 is in direct conflict with Marsy's Law, the Victim's Bill of Rights Act of 2008, adopted by the voters as part of Proposition 9, by undermining the finality of criminal cases; and (3) Senate Bill No. 1437 encroaches upon a core function of the courts and violates the separation of powers doctrine by mandating vacatur of final judgments.
Proposition 7 was approved by the voters in 1978, and Proposition 115 was approved by the voters in 1990. (People v. Solis (2020) 46 Cal.App.5th 762, 772-773 (Solis).)
The trial court appointed counsel for defendant. Counsel filed an opposition to the motion to strike, arguing Senate Bill No. 1437 is constitutional.
At the hearing on the petition, defense counsel and the district attorney submitted on the moving papers without additional argument. The superior court agreed with the district attorney that Senate Bill No. 1437 is unconstitutional and granted the motion to strike defendant's petition.
II.
DISCUSSION
The court in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux) summarized the effect of Senate Bill No. 1437 as follows:
“In 2018, ... the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature's findings and declarations states the law was ‘necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Id., § 1, subd. (f).) It further provides that the legislation was needed ‘to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.' (Id., § 1, subd. (e).)
“Under the felony-murder rule as it existed prior to Senate Bill 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state. (People v. Chun (2009) 45 Cal.4th 1172, 1182....) ‘“The felony-murder rule impute[d] the requisite malice for a murder conviction to those who commit[ted] a homicide during the perpetration of a felony inherently dangerous to human life.”' (Id. at p. 1184.) ‘The purpose of the felony-murder rule [was] to deter those who commit[ted] the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.' (People v. Cavitt (2004) 33 Cal.4th 187, 197....)
“Independent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense. (People v. Chiu (2014) 59 Cal.4th 155, 161-162....) ‘“Because the nontarget offense [was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.”' (People v. Flores (2016) 2 Cal.App.5th 855, 867....)
“Senate Bill 1437 restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, § 3.) Section 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: ‘(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life....'
“Senate Bill 1437 also ‘added a crucial limitation' to section 188, the statutory provision that defines malice for purposes of murder. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1099..., review granted Nov. 13, 2019, [S258175].) As amended, section 188 provides in pertinent part as follows: ‘Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' (Id., subd. (a)(3).)
“Finally, Senate Bill 1437 added section 1170.95 to the Penal Code. Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if the following conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.' (Id., subd. (a).)
“If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) At the resentencing hearing, the parties may rely on the record of conviction or offer new or additional evidence, and the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (Id., subd. (d)(3).)
“If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner resentenced ‘on any remaining counts in the same manner as if the petitioner had not been [sic] previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) If the petitioner is found eligible for relief, but ‘murder was charged generically... and the target offense was not charged,' the petitioner's murder conviction must be ‘redesignated as the target offense or underlying felony for resentencing purposes.' (Id., subd. (e).)” (Lamoureux, supra, 42 Cal.App.5th at pp. 247-249, fn. omitted.)
In Johns, this court addressed the same claims made by the district attorney in this case and soundly rejected them. We agreed with our colleagues in other courts and rejected the contention that Senate Bill No. 1437 unlawfully undermined the voters' intent when they passed Proposition 7. “Proposition 7 set the penalties for murder, not the elements of the crime of murder. (See Prop. 7, §§ 1-12.) Senate Bill 1437 left the punishment for murder unchanged, but altered the elements required to convict an accused of murder. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e).) Specifically, Senate Bill 1437 changed the minimum intent required to sustain a murder conviction by amending Penal Code sections 188 and 189. That change did not amend the statutory provisions enacted by the voters in passing Proposition 7. [Citation.] Senate Bill 1437 simply did not address any matter Proposition 7 specifically authorizes or prohibits. Since the Legislature is not barred from passing laws in areas related to but distinct from those addressed in an initiative, Proposition 7 was no bar to their passing Senate Bill 1437.” (Johns, supra, 50 Cal.App.5th at p. 63; accord, People v. Lombardo (2020) 54 Cal.App.5th 553, 560-561 (Lombardo); Lippert, supra, 53 Cal.App.5th at p. 312; People v. Nash (2020) 52 Cal.App.5th 1041, 1058-1067 (Nash); People v. Bucio (2020) 48 Cal.App.5th 300, 309-311 (Bucio); People v. Cruz (2020) 46 Cal.App.5th 740, 754-759 (Cruz); Solis, supra, 46 Cal.App.5th at p. 779; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 284-286 (Gooden); Lamoureux, supra, 42 Cal.App.5th at p. 251.)
Likewise, in Johns, we agreed with Gooden and rejected the argument that Senate Bill No. 1437 was an invalid amendment because it did not comply with Proposition 115. “‘Senate Bill 1437 did not augment or restrict the list of predicate felonies on which felony murder may be based, which is the pertinent subject matter of Proposition 115. It did not address any other conduct which might give rise to a conviction for murder. Instead, it amended the mental state necessary for a person to be liable for murder, a distinct topic not addressed by Proposition 115's text or ballot materials.'” (Johns, supra, 50 Cal.App.5th at p. 65, quoting Gooden, supra, 42 Cal.App.5th at p. 287.) Therefore, the Legislature was not required to enact Senate Bill No. 1437 by a two-thirds majority of both houses. (Gooden, at pp. 287-288; accord, Lombardo, supra, 54 Cal.App.5th at p. 561; Lippert, supra, 53 Cal.App.5th at pp. 312-313; Nash, supra, 52 Cal.App.5th at pp. 1067-1069; Solis, supra, 46 Cal.App.5th at pp. 780-784; Cruz, supra, 46 Cal.App.5th at pp. 759-761; Bucio, supra, 48 Cal.App.5th at pp. 311-312; Lamoureux, supra, 42 Cal.App.5th at p. 251.)
Finally, this court agreed with our colleagues in other courtsthat Senate Bill No. 1437 does not violate the sanctity of finality as enshrined in Marsy's Law or the separation of powers doctrine. (Johns, supra, 50 Cal.App.5th at pp. 66-69; accord, People v. Marquez (2020) 56 Cal.App.5th 40, 47-51; Lombardo, supra, 54 Cal.App.5th at pp. 561-565; Lippert, supra, 53 Cal.App.5th at p. 313; Nash, supra, 52 Cal.App.5th at pp. 1070-1083; Bucio, supra, 48 Cal.App.5th at pp. 312-314; Lamoureux, supra, 42 Cal.App.5th at pp. 260-266.)
Because the trial court did not address whether defendant was eligible for relief under section 1170.95, we remand for the trial court to make such a determination in the first instance.
III.
DISPOSITION
The order striking defendant's petition is reversed. On remand, the trial court shall review the petition on its merits.
We concur: RAMIREZ P. J.MENETREZ J.