Opinion
A158940
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS GORMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR011617CS)
Enacted in 2018, Senate Bill No. 1437 amended the definition of murder in Penal Code sections 188 and 189 to reduce the scope of the felony murder rule and the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2-3) The measure also added Penal Code section 1170.95 to establish a procedure whereby persons previously convicted of murder, who could not be convicted under the new definitions, could petition to have their convictions vacated.
Here, the trial court denied the petition of defendant Michael Thomas Gorman to have his felony murder conviction vacated on the belief that Senate Bill No. 1437 was unconstitutional in three respects.
First, "Penal Code section 1170.95 violates the separation of powers doctrine by requiring the court to vacate final judgments under the circumstances set forth in subd. (a)(1)-(3). The Court is required to readjudicate matters previously concluded through trial by jury or plea bargain by application of a different legal standard."
Second, Senate Bill No. 1437 is contrary to Marsy's Law (Cal. Const., art. I, § 28, subds. (a)(6) & (b)(9)), which guarantees "the victim's right to finality [of judgment] in a criminal case."
Third, "the readjudication process mandated by Penal Code section 1170.95 deprives the parties of having a jury sit as the trier of facts," thus, particularly violating "the prosecution's right to have a jury sit as the trier of fact under California Constitution, Article I, section 16."
On this timely appeal by defendant, the trial court's order is defended by the District Attorney of Humboldt County as respondent, while the Attorney General appears as amicus on behalf of appellant Gorman to uphold the constitutionality of Senate Bill No. 1437.
During the pendency of this appeal, various constitutional challenges have been considered by a number of Courts of Appeal, which have uniformly sustained the legality of Senate Bill No. 1437. They concluded, and we agree, that Senate Bill No. 1437 does not violate the separation of powers by compromising a core judicial function. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 260-262 [distinguishing People v. Bunn (2002) 27 Cal.4th 1, which was relied upon by the trial court]; People v. Bucio (2020) 48 Cal.App.5th 300 [following Lamoureux].) They have also concluded, and again we agree, that the measure does not violate Marsy's Law and the victim's right to finality of judgment in a criminal case. (People v. Lamoureux, supra, at pp. 264-265; People v. Bucio, supra, at p. 313 [following Lamoureux].)
In People v. Anthony (2019) 32 Cal.App.5th 1102, 1156-1157, we rejected a defendant's argument that the petition procedure established by Senate Bill No. 1437 violated his right to trial by jury. We found this contention "unpersuasive because the retroactive relief they are afforded by Senate Bill [No.] 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights. (See People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [a trial court may make determinations of fact based on new evidence regarding a petitioner's eligibility for resentencing under Proposition 36 because retroactive application of the benefits from the proposition are a legislative act of lenity that does not implicate Sixth Amendment rights].)" By parity of reasoning, the same would apply to the People's right.
Although we appreciate the labor and zeal brought to the issue by the parties and amicus, we believe there is no genuine purpose to explore the issues at greater length. It is sufficient for present purposes to hold, pending a contrary decision by our Supreme Court. that we agree with those Courts of Appeal which have concluded that Senate Bill No. 1437 is constitutional.
DISPOSITION
The order is reversed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.