Opinion
E072594
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN HERNANDEZ, Defendant and Appellant.
Nancy Olsen, 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 Amici Curiae on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB053198-1) OPINION APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Reversed and remanded with directions. Nancy Olsen, 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 Amici Curiae on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent.
I
INTRODUCTION
In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, § 4.) Senate Bill 1437 also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain resentencing on any remaining counts. (Ibid.; see Pen. Code, § 1170.95)
All future statutory references are to the Penal Code unless otherwise stated.
Defendant and appellant Benjamin Hernandez (Benjamin) appeals from an order denying his petition to vacate a second degree murder conviction in which he aided and abetted one or more codefendants and obtain resentencing under the procedures established by Senate Bill 1437. The trial court granted the People's motion to strike Benjamin's petition after concluding the resentencing provision of Senate Bill 1437 invalidly amended 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)), voter initiatives that increased the punishments for persons convicted of murder and augmented the list of predicate offenses for first degree felony murder liability, respectively.
To avoid confusion because of shared last names, we will refer to defendant Benjamin Hernandez, the victim Jerry Ramirez, and some witnesses by their first names. Because codefendants Edward Vincent Hernandez and Edward Hernandez, Sr., share both first and last names, we will refer to them as Vinny and Edward, respectively. Lastly, we will refer to codefendant Alfred Ray Rodriguez by his last name.
The People urge us to affirm the order striking Benjamin's petition and find Senate Bill 1437 unconstitutional on grounds that: (1) Senate Bill 1437 unlawfully amended Proposition 7; (2) Senate Bill 1437 invalidly amended Proposition 115; (3) the resentencing provision of section 1170.95 violates the separation of powers doctrine; and/or (4) the resentencing provision deprives crime victims the rights afforded them by the Victims' Bill of Rights Act of 2008, commonly known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008)).
The request for judicial notice filed by respondent on August 6, 2019, is hereby granted.
All published opinions addressing this issue have concluded that Senate Bill 1437 did not unconstitutionally amend either initiative. Most recently, in People v. Prado (May 26, 2020) ___ Cal.App.5th ___ , People v. Bucio (2020) 48 Cal.App.5th 300, 306 (Bucio), People v. Solis (2020) 46 Cal.App.5th 762, 774-780 (Solis), and People v. Cruz (2020) 46 Cal.App.5th 740, 753-759 (Cruz), our sister courts concluded that Senate Bill 1437 is constitutional. Previously, Division One of this court in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux), review denied February 19, 2020, S259835, and People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden), review denied February 19, 2020, S259700, concluded Senate Bill 1437 did not invalidly amend Proposition 7 and/or Proposition 115. The Lamoureux court also determined that the resentencing provisions of Senate Bill 1437 do not contravene separation of powers principles or violate the rights of crime victims.
Agreeing with the analyses and the conclusions set forth in those opinions, we reverse the trial court's order granting the People's motion to strike defendant's resentencing petition and remand with directions to consider defendant's petition on its merits.
We note the trial court did not rule on Benjamin's resentencing petition. The court specifically stated, "As a side note, this Court does not have sufficient facts to determine whether or not a prima facia [sic] showing has been made to determine whether or not petitioner falls within the provisions of [section] 1170.95 and is entitled to relief."
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from this court's prior nonpublished opinion in Benjamin's prior appeal, case No. E046636. (People v. Rodriguez (Sept. 28, 2010, E046636) [nonpub. opn.] (Rodriguez).)
A. Factual Background
Tina Lopez testified that she had spent the night of November 17, 2005, with Jerry Ramirez (Jerry), her boyfriend, at a motel. Tina telephoned her father, Benjamin, and asked for a ride. Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked her and Jerry up. No one seemed tense or angry.
The group went to the home of Tina's aunt, where Jerry's brother, Eric Ramirez, lived. Eric testified he had been keeping a .22-caliber semiautomatic and a .22-caliber revolver, as well as a .25-caliber clip, for Jerry. Eric retrieved the guns and gave them to Jerry; Jerry unloaded the guns and gave them and the clip to Vinny, who owned one of the guns. Tina's aunt testified that about a year earlier, there had been problems between Vinny and Jerry.
The group then proceeded to a house on East Pumalo Street (the Pumalo house) where other extended family members lived. Tina's mother, Stella Lopez; Tina's aunt and uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the Pumalo house. Tina bickered with Benjamin while Rodriguez, Vinny, and Jerry were outside. Tina heard "loudness" in the backyard, and Benjamin went outside. Benjamin told Tina to stay in the house and told Stella to keep her there.
Curtis Hawkins, who lived behind the Pumalo house, heard a commotion. Through his bathroom window, he saw several men, including all four defendants, surrounding Jerry on the ground near the carport. Jerry was trying to escape but the others were blocking him. Hawkins heard Benjamin say, "You been fucking with my family. I'm going to kill you." Benjamin hit Jerry with a pointed edge shovel about 20 times in the head and torso while Jerry cried and pleaded for him to stop. Hawkins saw a pool of blood form around Jerry's head, and he heard Benjamin say, "Hurry up. Get my gun." Hawkins also heard someone say to get blankets. Vinny and Rodriguez rolled Jerry's motionless body up in blankets. Vinny backed a car up the driveway into the carport, and Vinny and Rodriguez loaded Jerry into the trunk and drove off. Hawkins then saw Edward put some dirt over the blood and hose down the driveway and a car in the carport. A few minutes later, Hawkins heard Benjamin say to his daughter and another woman, "The same thing may happen to you." Hawkins did not contact the police because he feared for his own safety.
Another next-door neighbor, Vivian Jackson, heard screams. Jackson looked through the chain-link fence to see Vinny beat a man on the ground with a shovel at least five times, while three or four other men beat, stomped, and kicked the victim. She could see blood on the ground. She heard the man she identified as Vinny say, "I told you not to play with me," and she heard the victim screaming "no." Jackson then walked away. Fifteen or 20 minutes later, she saw Edward hosing down what looked like blood from the carport area.
Although Jackson testified that the man with the shovel was Vinny, she had identified a photograph of Benjamin as the man who had used the shovel.
Alberta Hechtl, a security guard at a credit union adjacent to the Pumalo house, heard yelling, and although her view was partially obstructed, she saw an object like a shovel being driven up and down while a man screamed. She heard a woman yelling "leave him alone," and a man reply, "Get in the house."
Tina told a detective and testified at the preliminary hearing that Benjamin came back inside and yelled to Vinny and Rodriguez to "[g]et him out of here" or to "[g]et rid of him." She then saw Vinny and Rodriguez push Jerry into the car, and she saw Vinny driving the car away.
Deputy Mark Addy of the San Bernardino County Sheriff's Department responded to a report of a domestic disturbance at the Pumalo house. He observed that Benjamin had what appeared to be fresh blood on his T-shirt and a fresh laceration above his eye. The deputy also saw someone washing a car in the carport.
Jerry's body was discovered in a ravine in Waterman Canyon on November 20, 2005. He had suffered numerous blunt and sharp force injuries, including defensive wounds on his arms, but the cause of death was seven close-range gunshot wounds to the head. Some of the blunt-force injuries on his back and buttocks area were consistent with kicking. The seven bullets were all .25-caliber and could only have been fired from a .25-caliber weapon.
Neither a gun nor the shovel was ever found.
B. Procedural Background
The jury found Benjamin guilty of second degree murder as an aider and abettor. (Rodriguez, supra, E046636, at p. 8; § 187, subd. (a).) The jury also found that Benjamin had used a deadly weapon, a shovel, in the commission of the crime. (§ 12022, subd. (b)(1).) The trial court sentenced Benjamin to 15 years to life in prison and imposed a consecutive one-year enhancement for the weapon use.
Codefendant Rodriguez was also found guilty of second degree murder as an aider and abettor. Benjamin and codefendants Rodriguez, Vinny, and Edward were all charged with first degree murder and conspiracy to commit murder with various weapon use allegations. Vinny's trial was severed from that of the others. The jury was unable to reach a verdict on the murder charge as to Edward and a mistrial was declared as to him. Vinny and Edward were subsequently tried together. Vinny was found guilty of first degree murder and conspiracy to commit murder (§§ 187, subd. (a), 182, subd. (a)(1)), and the jury found true firearm use allegations as to him under section 12022.53, subdivisions (b), (c), and (d). The jury was again unable to reach a verdict as to the murder charge against Edward, and another mistrial was declared. Edward thereafter entered a plea of guilty to acting as an accessory to a felony (§ 32), and the murder charge against him was dismissed. (Rodriguez, supra, E046636, at p. 2, fn. 3.)
On September 28, 2010, this court rejected Benjamin's contention that the evidence was insufficient to show he aided and abetted a codefendant in killing the victim, and affirmed the judgment. (See Rodriguez, supra, E046636, at pp. 2, 7-8, 12.)
In 2018, after Benjamin's judgment of conviction became final, the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended the felony murder rule and the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).)
On January 7, 2019, Benjamin in pro. per. filed a petition for resentencing pursuant to section 1170.95.
On March 1, 2019, the People filed a motion to strike Benjamin's petition for resentencing on grounds that the amendments effectuated by Senate Bill 1437 were unconstitutional, in whole or part, for four reasons. First, they argued Senate Bill 1437 invalidly amended Proposition 7, a voter initiative that increased the punishment for first degree murder from a term of life imprisonment with parole eligibility after seven years to a term of 25 years to life, and increased the punishment for second degree murder from a term of five, six, or seven years to a term of 15 years to life. (Prop. 7, §§ 1-2.) Second, the People contended Senate Bill 1437 unconstitutionally amended Proposition 115, a voter initiative that augmented the list of predicate offenses giving rise to first degree felony murder liability. (Prop. 115, § 9.) Third, they claimed section 1170.95 violated the separation of powers doctrine because it impermissibly interfered with a core judicial function of resolving specific controversies between parties. Fourth, they argued section 1170.95 violated Marsy's Law.
On March 11, 2019, Benjamin's appointed counsel filed an opposition to the People's motion to strike the petition for resentencing.
On April 19, 2019, the trial court found Senate Bill 1437 unconstitutional. The court concluded section 1170.95 unlawfully amended Propositions 7 and 115 and granted the People's motion to strike Benjamin's petition without addressing whether or not Benjamin had made a prima facie case pursuant to section 1170.95. The court did not address the People's remaining arguments.
In pertinent part, the court reasoned as follows: "It was clearly the voters' intent when passing the Briggs Initiative [Proposition 7] to substantially increase the punishment for persons convicted of first and second degree murder. The Briggs [I]nitiative also did not authorize the Legislature to amend the provisions without voter approval. Again, by changing the definition of malice and amending the scope of the Felony Murder Rule, the legislative amendment clearly and completely contradicts the intention of the electorate in approving the Briggs [I]nitiative. [¶] . . . It is this Court's opinion that the legislature cannot amend or redefine murder in order to avoid the penalties that Proposition 7 set for that crime. . . ."
Regarding Proposition 115, the trial court, in pertinent part, explained: "Had the voters wanted the additional requirements for accomplices to apply to Penal Code Section 189, they would have codified it as such. It also has the effect of calling into question the ability of the State to seek the death penalty for aiders [and] abettors. [¶] Finally, I will note that the Legislature acknowledged in Assembly Bill 1304, its own version of SB 1437. That passage would require a two-thirds vote of both houses to pass, since it would be an amendment to Proposition 115. And later, the Legislative Counsel's Office placed the legislature on notice that the proposed legislation of SB 1437, affecting accomplice liability would require voter approval because it changed the scope and effect of the Brigg's Initiative. The Legislature chose to ignore their own legal advice and passed SB 1437 without voter approval and by less than two-thirds vote in both houses."
The trial court concluded by noting: "For all the reasons that I've stated . . . the Legislature was not free to enact SB 1437, except under the parameters of Article II, Section 10, for amending Proposition 7 or by the supermajority requirement of Proposition 115. This legislation was enacted by neither practice and hence, is invalid."
On April 23, 2019, Benjamin appealed the order granting the People's motion to strike his resentencing petition. The Attorney General permitted the Office of the District Attorney of San Bernardino County to represent the People's interests in this appeal and, for its part, filed an amicus curiae brief defending the constitutionality of Senate Bill 1437.
III
DISCUSSION
A. General Background of Senate Bill 1437
On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code 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." (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
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." (Stats. 2018, ch. 1015, § 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).)
Prior to Senate Bill 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144 (R.G.).) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed ' "for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." [Citations.]' [Citation.]" (R.G., at p. 144.) "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.) Aider and abettor liability under the doctrine was thus "vicarious in nature." (People v. Chiu, at p. 164.)
Senate Bill 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [his or her] participation in a crime.' (§ 188, subd. (a)(3).)" (R.G., supra, 35 Cal.App.5th at p. 144.) "Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100, review granted Nov. 13, 2019, S258175; Martinez, supra, 31 Cal.App.5th at p. 723.) "Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice," or—when the felony murder doctrine is at issue—"was 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." (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at p. 723.)
Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1); Martinez, at pp. 723-724.) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3); Martinez, at pp. 723-724.)
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." (§ 1170.95, subd. (e).)
B. Constitutionality of Senate Bill 1437
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.
Defendant and the Attorney General both contend Senate Bill 1437 and section 1170.95, as enacted by Senate Bill 1437, did not unconstitutionally amend Propositions 7 and 115. The People argue Senate Bill 1437 unconstitutionally amends Propositions 7 and 115 by decreasing the number of people who are subject to conviction, and thus punishment, for murder. The People also contend that the resentencing petition process established under Senate Bill 1437, specifically section 1170.95, violates the separation of powers doctrine and that the resentencing provision is in direct conflict with Proposition 9 or Marsy's Law.
After conducting a de novo review (People v. Luo (2017) 16 Cal.App.5th 663, 680), we agree with defendant and the Attorney General that Senate Bill 1437 did not unconstitutionally amend Propositions 7 and 115, and/or violate the separations of powers doctrine, Proposition 9, or Marsy's Law. Since the trial court's ruling in this case, constitutional challenges to Senate Bill 1437 have been rejected. (See generally Lamoureux, supra, 42 Cal.App.5th 241; Gooden, supra, 42 Cal.App.5th 270; Solis, supra, 46 Cal.App.5th. 762; Cruz, supra, 46 Cal.App.5th 740; Bucio, supra, 48 Cal.App.5th 300.)
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 provides otherwise. (Cal. Const., art. II, § 10, subd. (c).) "[D]espite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have observed that this body is not thereby precluded from enacting laws addressing the general subject matter of an initiative. 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.]" (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026 (Kelly), italics omitted.)
Because Proposition 7 did not authorize the Legislature to amend it (People v. Cooper (2002) 27 Cal.4th 38, 41, 44), and because Senate Bill 1437 passed the Assembly without the necessary votes for legislative amendment of Proposition 115 (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 567 (Pearson); Gooden, supra, 42 Cal.App.5th at p. 277), Senate Bill 1437 would be unconstitutional, if it constitutes an "amendment" to Proposition 7 or Proposition 115. (See Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-1484 (Quackenbush) [the Legislature may amend a statute enacted by the initiative process "only if the voters specifically gave the Legislature that power, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers"].) "An amendment is a legislative act designed to change an existing initiative statute by adding or taking away from it some particular provision." (People v. Cooper, at p. 44.)
To determine if Senate Bill 1437 constitutes an amendment to Proposition 7 or Proposition 115, "we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.) Division One of this court recently answered this question in the negative in Gooden, supra, 42 Cal.App.5th 270, and reaffirmed its conclusion in Lamoureux, supra, 42 Cal.App.5th 241. This Division and this District have found the analysis in Gooden and Lamoureux persuasive. We continue to follow that analysis here.
In Solis and Cruz, Division Three of this court also rejected the People's arguments. The Solis court explained: "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, the Fourth Appellate District, Division Three 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 pp. 755-756.)
With respect to Proposition 115, the appellate court concluded: "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 pp. 759-761.)
In Gooden, supra, 42 Cal.App.5th 270, Division One of this court concluded "Senate Bill 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.) Gooden noted Senate Bill 1437 does not speak to the penalties for murder; rather, it amends the mental state required for murder. (Gooden, at p. 287.)
With respect to Proposition 7, the Gooden court explained: Senate Bill 1437 did not amend Proposition 7 because it did not "address the same subject matter [as Proposition 7]. It did not prohibit what Proposition 7 authorizes by, for example, prohibiting a punishment of 25 years to life for first degree murder or 15 years to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for instance, permitting a punishment of less than 25 years for first degree murder or less than 15 years for second degree murder. In short, it did not address punishment at all. Instead, it amended the mental state requirements for murder, which 'is perhaps as close as one might hope to come to a core criminal offense 'element.' " (Gooden, supra, 42 Cal.App.5th at p. 282, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 493.)
Because Senate Bill 1437 and Proposition 7 concerned different subjects, the Gooden court concluded Proposition 7 did not foreclose the Legislature from enacting Senate Bill 1437 to amend the mental state requirements for murder under the felony murder rule and the natural and probable consequences doctrine. (Gooden, supra, 42 Cal.App.5th at pp. 282-286.) Gooden's analysis applied to all the legislative amendments effectuated by Senate Bill 1437, including section 1170.95. (Gooden, at p. 286.)
Gooden, supra, 42 Cal.App.5th at pages 287 and 288, similarly found Senate Bill 1437 does not amend Proposition 115, which made more offenses eligible for felony murder. The Gooden court explained, again, Senate Bill 1437 "did not augment or restrict the list of predicate felonies on which felony murder may be based" but instead "amended the mental state necessary for a person to be liable for murder." (Gooden, at p. 287.) The court thus concluded that because Senate Bill 1437 does not amend Propositions 7 and 115, it does not violate article II, section 10, subdivision (c), of the California Constitution, which provides that the Legislature may amend or repeal an initiative statute only with voter approval, unless the original initiative permits amendment or repeal without voter approval. (Gooden, at pp. 279, 289.)
In Lamoureux, the same appellate court used the same analysis as it had in Gooden to again conclude Senate Bill 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 1437 does not contravene separation of powers principles or violate the rights of crime victims." (Ibid.)
The Lamoureux court explained, first, the bill was part of a broad penal reform to ensure our state's murder laws fairly address individual culpability and to reduce prison overcrowding. (Lamoureux, supra, 42 Cal.App.5th at pp. 247, 256.) Having such a purpose, any interference with the executive's power of clemency is merely incidental and not an impermissible encroachment on the core functions of the executive. (Id. at p. 256.) Second, the bill does not intrude on a core function of the judiciary by allowing prisoners serving final sentences to seek relief. To the extent retroactive reopening of final judgments implicates individual liberty interests, Senate Bill 1437 does not present any risk to those interests. (Lamoureux, at p. 261.) "On the contrary, it provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake in a criminal prosecution," the criminal defendant. (Ibid.) Also, the legal landscape is rife with legislation allowing petitioners to reopen final judgments of conviction without regard to their finality as of the effective date of the legislation, for example, Propositions 36 and 47. (Lamoureux, at pp. 262-263.)
Regarding crime victims' rights as enshrined in Marsy's Law, the court in Lamoureux, supra, 42 Cal.App.5th at pages 264 to 266 explained, although Marsy's Law established a victim's right to prompt and final conclusion to postjudgment proceedings, Marsy's Law did not foreclose postjudgment proceedings altogether. (Lamoureux, at p. 265.) The court also noted section 1170.95 does not deprive victims of safety-related rights because trial courts may consider that factor when resentencing the defendant on any remaining counts. (Lamoureux, at pp. 265-266.)
The analyses and holdings in Solis and Cruz apply equally here, as do the holdings of Gooden and Lamoureux. We agree with the reasoning in those cases, and likewise conclude Senate Bill 1437 is constitutional and does not violate Propositions 7 and 115, the separation of powers doctrine, and/or Marsy's Law.
During oral argument, the District Attorney argued Gooden and Lamoureux misapplied the Kelly decision. We reject the People's reasons to depart from the conclusions reached in Gooden and Lamoureux.
The District Attorney cites Quackenbush, supra, 64 Cal.App.4th 1473 for the standard that an amendment is " ' " 'any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.' " ' " (Quackenbush, at pp. 1484-1485.) This language was taken from Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776-777. In Kelly, supra, 47 Cal.4th at page 1026, the California Supreme Court declined to "endorse any such expansive definition" of the term "amendment." Therefore, the cases in which the appellate court concluded a statute constituted an amendment based on an "expansive definition" of amendment are of less precedential value to our analysis.
Based on the foregoing, we conclude the trial court erred in finding Senate Bill 1437 unconstitutional and striking defendant's resentencing petition under section 1170.95 without reaching its merit.
IV
DISPOSITION
The trial court's order granting the People's motion to strike the section 1170.95 resentencing petition is reversed. The matter is remanded for further proceedings under section 1170.95.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.