Opinion
F080236
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JACKSON, Defendant and Appellant.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Lisa Smittcamp, District Attorney, and Kelsey C. Peterson, Deputy District Attorney, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CF91451754)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Lisa Smittcamp, District Attorney, and Kelsey C. Peterson, Deputy District Attorney, for Plaintiff and Respondent.
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INTRODUCTION
This appeal presents the question whether Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, pp. 1-5) (Senate Bill 1437 or Sen. Bill 1437) is constitutional. We follow the growing line of published appellate authority—including People v. Nash (2020) 52 Cal.App.5th 1041 (Nash) from this court—in holding that it is. As such, we reverse the trial court's order dismissing defendant Christopher Jackson's petition under Penal Code section 1170.95 on the ground Senate Bill 1437 is unconstitutional, and remand the matter to the trial court for further proceedings.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL SUMMARY
In August 1994, an information was filed alleging defendant committed first degree murder (§ 187; count 1); robbery (§§ 211, 212.5, former subd. (b); count 2); and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count 3). As to the murder charge, a special circumstance enhancement was alleged that the murder was committed in the course of a robbery, and a firearm enhancement was also alleged. Count 3 was alleged to have occurred on April 14, 1991, and counts 1 and 2 were alleged to have occurred the day after, on April 15, 1991.
Defendant entered into a negotiated plea to having committed the lesser included offense of second degree murder (count 1), and robbery (count 2), with an admission that he personally used a firearm, in exchange for an aggregate sentence of 25 years to life (a determinate term of 10 years, followed by an indeterminate term of 15 years to life). It was stipulated that the factual basis of the plea was comprised of the preliminary examination hearing transcript and police reports. On November 28, 1994, defendant was sentenced in conformance with the plea agreement.
Defendant subsequently appealed to challenge the imposition of a $1,000 restitution fine. This court affirmed the judgment of conviction. The certified clerk's transcript filed with this court in that appeal contains a certified copy of the July 21 and 25, 1994, preliminary examination hearing transcripts. (People v. Jackson (Nov. 1, 1995, F022812) [nonpub. opn.].)
On January 9, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, enacted under Senate Bill 1437. The Fresno County District Attorney's Office (district attorney) moved to dismiss on the ground that Senate Bill 1437 was unconstitutional. District attorney also filed a merits-based opposition, arguing that while defendant was not the actual killer, he was still liable for murder despite the changes in the law because he aided and abetted the murder, and he acted with an intent to kill by being armed with and firing his gun. Moreover, district attorney argued, the record showed defendant was a "major participant" in the underlying robbery and he acted with reckless indifference to human life. (See § 189, subd. (e)(1)-(3).)
Defendant filed a reply brief that disputed Senate Bill 1437 was unconstitutional. Defendant also argued that district attorney's brief asserted facts that were not in evidence and that a hearing was necessary to establish the underlying facts.
A hearing on the petition was held on October 28, 2019, and a final order was filed the same day. The trial court dismissed the petition finding Senate Bill 1437 unconstitutional. The trial court concluded "the entire legislative enactment is unconstitutional, including the procedure described in section 1170.95 for those who 'could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.'" The court then expressly "decline[d] to address whether [defendant] has stated a prima facie case or would be likely to prevail on the merits. The petition for resentencing pursuant to section 1170.95 is dismissed." Defendant appealed.
DISCUSSION
I. Senate Bill 1437 is Constitutional
Senate Bill 1437, effective January 1, 2019, "amend[ed] 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, p. 2, subd. (f).)
In relevant part, Senate Bill 1437 did the following: (1) it amended section 188 to include subdivision (a)(3), which provides that "[e]xcept as otherwise stated in subdivision (e) of Section 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"; (2) it added subdivision (e) to section 189, which provides that "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs is liable for murder 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, as described in subdivision (d) of Section 190.2"; and (3) it added section 1170.95, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to file a petition in the trial court to have his or her murder conviction vacated and to be resentenced on any remaining counts if certain conditions apply, including that he or she could not be convicted of murder under the changes made to sections 188 or 189 by Senate Bill 1437. (§ 1170.95, subd. (a).)
District attorney argues that Senate Bill 1437 is an unconstitutional amendment of Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)), Proposition 115 (Prop. 115, The Crime Victims Justice Reform Act, as approved by voters, Primary Elec. (June 5, 1990)) and Proposition 9 (Prop. 9, The Victims' Bill of Rights Act of 2008: Marsy's Law, approved by voters, Gen. Elec. (Nov. 4, 2008))—all ballot initiatives passed by voters. District attorney also argues the new law impermissibly infringes on powers vested in the judicial and executive branches of government, in violation of the separation of powers doctrine. District attorney urges this panel to adopt the dissenting opinions in Nash, supra, 52 Cal.App.5th at pages 1084-1087, Poochigian, J., concurring and dissenting, and in People v. Lippert (2020) 53 Cal.App.5th 304, 314-326, Ramirez, J., dissenting, review denied October 21, 2020, S264495 (Lippert).
In Nash, supra, 52 Cal.App.5th at page 1053, this court rejected these arguments, joining a line of other Courts of Appeal who have considered and rejected some or all of the same claims. (See People v. Lamoureux (2019) 42 Cal.App.5th 241, 246 [Sen. Bill 1437 does not violate Props. 7, 115 or 9, or separation of powers doctrine]; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 289 [Sen. Bill 1437 does not violate Props. 7 or 115]; People v. Solis (2020) 46 Cal.App.5th 762, 784; People v. Cruz (2020) 46 Cal.App.5th 740, 747; accord, People v. Lopez (2020) 51 Cal.App.5th 589, 594; People v. Alaybue (2020) 51 Cal.App.5th 207, 211; People v. Johns (2020) 50 Cal.App.5th 46, 54-55; People v. Prado (2020) 49 Cal.App.5th 480, 492; People v. Smith (2020) 49 Cal.App.5th 85, 91-92, review granted July 22, 2020, S262835; People v. Bucio (2020) 48 Cal.App.5th 300, 306.)
Review was granted in People v. Smith, supra, 49 Cal.App.5th 85 on the issues of (1) whether a superior court can consider the record of conviction in determining whether a defendant made a prima facie showing of eligibility for relief under section 1170.95 and (2) when the right to appointed counsel arises under section 1170.95, subdivision (c).
Since Nash was published, the Courts of Appeal have continued to conclude Senate Bill 1437 is constitutional. (See Lippert, supra, 53 Cal.App.5th at pp. 313-314; People v. Lombardo (2020) 54 Cal.App.5th 553, 562, 565; People v. Marquez (2020) 56 Cal.App.5th 40, 47-51 [§ 1170.95 neither conflicts with Marsy's Law nor violates separation of powers doctrine].)
We are not persuaded to depart from Nash's analyses or conclusions. Nash provided a thorough and detailed explanation of its holding, and it is unnecessary for us to repeat that decision's analyses here. Rather, we incorporate by reference our analyses from Nash and conclude, for the reasons expressed therein, that Senate Bill 1437 is constitutionally sound, and the trial court erred in concluding it was not. Defendant is entitled to have his petition considered on its merits. The order dismissing defendant's section 1170.95 petition is reversed.
II. Remaining Issues
Upon a determination Senate Bill 1437 is constitutional, the parties dispute what procedures should occur on remand with respect to defendant's petition.
A. District Attorney's Motion to Augment the Record is Denied
In February 2020, before filing his opening brief, defendant filed a motion to augment the clerk's transcript with the transcript of the July 1994 preliminary examination, which defendant stated was held "on or around July 21-25, 1994." Defendant noted that in deciding Senate Bill 1437 was unconstitutional and expressly declining to reach the merits of defendant's section 1170.95 petition, the trial court recited facts taken from the preliminary examination hearings held in July 1994. Defendant explained he had no other way of verifying the accuracy of the trial court's summary of that preliminary examination testimony unless the transcript was included in the record on appeal. We granted defendant's request and the clerk's transcript on appeal was augmented.
In his opening brief, defendant objects to the trial court's recitation of "facts" ostensibly taken from the preliminary examination hearing transcript. Defendant argues the record on appeal casts doubt on the accuracy of that recitation because the augmented record only includes a transcript from July 25, 1994, which did not include any testimony or evidence that was summarized in the trial court's dismissal order dismissing the petition. Defendant notes the superior court clerk certified this preliminary examination transcript was a true and correct copy of the instruments on file in that office, and defendant notes that due to the age of the case, as indicated in a prior declaration by the superior court clerk's office, other transcripts may have been destroyed. Defendant argues the trial court's description of evidence presented at the preliminary examination was gratuitous and unsupported given the existing transcript that has been produced by the superior court clerk's office.
In response, in October 2020, district attorney filed a motion to augment the record with a file-stamped copy of the July 21, 1994, preliminary examination hearing transcript. In its respondent's brief, district attorney argues augmentation is extremely important because defendant has asserted the preliminary examination transcript and facts thereof were unknown by the district attorney or the court and, thus, were injected into the record without any support. Yet, district attorney contends, her office has had a copy of the July 21, 1994, preliminary examination transcript and is not only aware of the facts contained in it, but maintains the facts asserted in the briefing thus far in this case have been supported by it. District attorney also maintains its belief the trial court had the transcript as well because its rendition of the facts in the dismissal order mirror those contained in the preliminary hearing transcript.
Defendant filed an opposition to the motion to augment and argues district attorney improperly couches the superior court's "gratuitous and unsupported recitation of 'evidence' supposedly in the court's file as 'facts.'" Defendant explains his motion to augment was made to "verify the state of the [trial] court's file, to ensure that the items relied on by [the trial] Court in its written order were included within the record on appeal, and to analyze the case from there." (Italics omitted.) Defendant argues the augmentation was done on a proper search of the trial court's files, and the lack of a proper record "produced by the court to verify its improper view of the case at the juncture below simply underscores that." (Italics omitted.) Defendant maintains the preliminary examination transcript is essentially additional evidence the admission of which should take place at the trial court where trial counsel will have an opportunity to challenge any evidentiary issues that may arise—which, according to defendant, is supposed to happen after the issuance of an order to show cause under section 1170.95, subdivision (c).
For whatever reason, the superior court clerk's office was unable to locate and/or did not have in its records a copy of the July 21, 1994, preliminary examination transcript upon defendant's augmentation request in February 2020, and it was not included in the clerk's transcript originally filed on appeal. The copy of the filed July 21, 1994, preliminary examination hearing transcript district attorney provides with its motion to augment is not certified and so does not meet the technical requirements of this court's local rules for augmentation. (See Ct. App., Fifth Dist., Local Rules, rule 1(c) (Augmentation of record) [documents provided with request for augmentation of clerk's transcript must be certified].)
Regardless, augmentation of the record on appeal is unnecessary. The facts recited by the trial court about testimony given at the July 21, 1994, preliminary examination were stated in a procedural background section of its order dismissing defendant's petition. None of those facts, or any other facts in this case, had any bearing on the trial court's conclusion Senate Bill 1437 is unconstitutional, the sole ground on which the trial court's dismissal order was predicated. Further, our consideration of the constitutionality of Senate Bill 1437 does not turn on, or even tangentially relate to, any facts regarding defendant's underlying conviction or the July 21, 1994, preliminary examination. Since the transcript is not relevant to the issue decided by the trial court, augmentation of the record on appeal with this document is unnecessary.
There is no doubt the July 21, 1994, preliminary examination occurred and its contents are verifiable. This court's file of defendant's 1994 direct appeal contains a certified copy of the transcript.
Moreover, any dispute about the trial court's characterization of the preliminary examination testimony is not relevant in this appeal for two reason. First, the preliminary examination testimony relates only to an issue that was never decided by the trial court in its dismissal order—the merits of defendant's section 1170.95 petition. For reasons discussed below, that issue is not presently before us. Second, as for any future effect of the trial court's recitation or characterization of testimony from the 1994 preliminary examination in its order dismissing the petition, we are reversing that order in full and the trial court's discussion of the preliminary examination in that order is necessarily vacated.
Finally, whatever the parties' dispute might be about the trial court's future consideration of the 1994 preliminary examination testimony to determine whether defendant has made a prima facie showing of entitlement to relief under section 1170.95, subdivision (c), the issue is not ripe for decision in this appeal and we express no view on that matter.
District attorney's motion to augment the record is denied.
B. Proceedings on Remand
Defendant argues this court should follow People v. Drayton (2020) 47 Cal.App.5th 965 (Drayton) and hold that defendant has satisfied both the initial showing of sufficiency of his petition and that he has made a prima facie showing of entitlement to relief. (Id. at pp. 976, 981.) Furthermore, defendant maintains, the trial court inappropriately engaged in judicial factfinding by purporting to recite evidence in its order dismissing defendant's section 1170.95 petition on constitutional grounds. Defendant argues this was tantamount to weighing the facts that the trial court was not entitled to do given its decision not to reach the merits of the petition and because, as articulated in Drayton, section 1170.95 does not allow weighing of the evidence in determining whether a prima facie showing of entitlement to relief has been made. (Drayton, supra, at p. 982.)
District attorney contends the trial court expressly declined to determine whether defendant had made a prima facie showing of entitlement to relief under section 1170.95—thus, if this court determines Senate Bill 1437 is constitutional, remand to allow the parties to brief the issue of whether a prima facie showing has been made is appropriate; in district attorney's view, ordering the trial court to issue an order to show cause would be premature.
1. Section 1170.95 Petition Process
Pursuant to Senate Bill 1437, section 1170.95 lays out a process for a person convicted of a felony murder or murder under a natural and probable consequences theory to seek vacatur of his or her conviction and resentencing. The petition may be filed upon meeting the following conditions: (1) a complaint, information or indictment was filed against the petition 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; and (3) the petitioner "could not be convicted of first or second degree murder" because of changes to sections 188 or 189 made effective by Senate Bill 1437. (§ 1170.95, subd. (a)(1)-(3).)
Once a petition declaring that these elements are met is filed with the sentencing court, the trial court must "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of th[e] section." (§ 1170.95, subd. (c).) If so, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1).)
At the hearing, the prosecution must "prove, beyond a reasonable doubt, that the petitioner is ineligible for sentencing." (§ 1170. 95, subd. (d)(3).) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
2. Authority Interpreting Section 1170.95 Petition Process
Although section 1170.95, subdivision (c), directs courts to "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of ... section [1170.95]," how the court is to conduct that review is not articulated by the statute. Several appellate courts have interpreted how the prima facie inquiry under section 1170.95, subdivision (c) is to be performed and what materials may be considered. (See, e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, 1139, 1141, review granted Mar. 18, 2020, S260598 [affirming summary denial of § 1170.95 petition based on record from direct appeal showing jury necessarily decided an issue that directly refuted the defendant's § 1170.95 petition] (Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320, 336, review granted Mar. 18, 2020, S260493 [affirming summary denial of § 1170.95 petition based on record from direct appeal establishing verdict necessarily reflected jury made finding that precluded a prima facie showing under § 1170.95] (Verdugo); Drayton, supra, 47 Cal.App.5th at pp. 982-983 [reversing denial of § 1170.95 petition because record that involved a plea agreement and no direct appeal did not establish as a matter of law the defendant was ineligible for relief under § 1170.95]; People v. Garcia (2020) 57 Cal.App.5th 100, 118, review granted Feb. 10, 2021, S265692 [disagreeing with Drayton and affirming summary denial of § 1170.95 petition based on record in direct appeal showing substantial evidence would still support a murder conviction despite changes in the law under Sen. Bill 1437].)
Review was granted in Lewis, supra, 43 Cal.App.5th 1128 to address (1) whether superior courts may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under section 1170.95 and (2) when the right to appointed counsel arises under section 1170.95, subdivision (c). Review in Verdugo, supra, 44 Cal.App.5th 320 was granted and further action was deferred pending consideration and disposition of the issues in Lewis.
Review was granted in People v. Garcia, supra, 57 Cal.App.5th 100, and further action was deferred pending our high court's consideration and disposition of the issues in Lewis, supra, 43 Cal.App.5th, review granted, and People v. Duke (2020) 55 Cal.App.5th 113, review granted January 13, 2021, S265309. --------
In Drayton, the defendant had been involved with three others in a home invasion robbery that resulted in the killing of one of the three people in the home. Drayton later pled guilty to murder and admitted to personal use of a firearm during the crime. In connection with his plea, Drayton admitted he had entered the home with intent to commit theft and a human being was killed. He also admitted he had a .32-caliber pistol in his possession. Drayton was sentenced to 29 years to life. (Drayton, supra, 47 Cal.App.5th at pp. 968-969.)
In 2019, Drayton filed a form petition on his own behalf under section 1170.95, declaring among other things that he was not a major participant in the March 1991 felony, or he had not acted with reckless indifference to human life during the course of the crime. The trial court appointed counsel for Drayton, and the district attorney filed an opposition that acknowledged Drayton had been convicted of murder on a theory of felony murder, but argued Drayton could still be convicted of murder as a major participant in the underlying felonies of robbery and burglary and as showing reckless indifference to human life. (Drayton, supra, 47 Cal.App.5th at pp. 969-970.)
The trial court held a hearing on the petition and denied it without hearing argument or taking evidence. The court found Drayton was ineligible for resentencing, reasoning Drayton was a major participant in both the burglary and the robbery and that Drayton had acted with reckless indifference to human life—facts apparently taken from the preliminary examination hearing. Drayton appealed. (Drayton, supra, 47 Cal.App.5th at pp. 971-972.)
On appeal, the trial court's denial of the petition was reversed. Drayton determined section 1170.95, subdivision (c), contemplates two separate assessments by the trial court of a prima facie showing—one focused on eligibility for relief and the second on entitlement to relief. (Drayton, supra, 47 Cal.App.5th at p. 975, citing Verdugo, supra, 44 Cal.App.5th at p. 328, review granted.) The court determined that when assessing the prima facie showing, the "trial court should assume all facts stated in the section 1170.95 petition are true. [Citation.] The trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law ... if the record 'contain[s] facts refuting the allegations made in the petition ... the court is justified in making a credibility determination adverse to the petitioner.' [Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subdivision (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime). [¶] If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170.95[, subdivision ](a), then the trial court should issue an order to show cause." (Drayton, supra, 47 Cal.App.5th at p. 980.)
The court concluded it was error to summarily deny Drayton's petition because there were no facts in the trial court record that, as a matter of law, refuted Drayton's assertion that he had been convicted of first degree murder on a theory of felony murder. Moreover, determining whether Drayton was a major participant or had acted with reckless indifference to human life required weighing facts and drawing inferences. As such, the court reasoned, the petitioner's assertions should have been accepted as true and an order to show cause should have been issued. The matter was remanded with direction to the trial court to issue an order to show cause and hold a hearing to determine whether to vacate and recall Drayton's sentence under section 1170.95 and resentence him. (Drayton, supra, 47 Cal.App.5th at pp. 981-983.)
3. Merits of Petition Must be Addressed by Trial Court in the First Instance
Based on Drayton, defendant requests we accept all facts stated in his section 1170.95 petition as true; deem the prima facie showing to have been made; and order the trial court to proceed immediately to a full evidentiary hearing on remand. We decline defendant's requests for several reasons.
First, the trial court expressly ruled it was taking no position on whether defendant had made a prima facie showing under section 1170.95, so that inquiry was never conducted. The trial court dismissed the petition solely on constitutional grounds—in the posture of this appeal there is no other determination for us to review.
Second, we cannot undertake the prima facie inquiry under section 1170.95 in the first instance—that is the province of the trial court, and, more specifically, whenever possible, the judge who conducted the sentencing. (§ 1170.95, subd. (b)(1).) And, because the trial court did not reach the merits of the petition, we are without a basis to assess whether the prima facie review was properly conducted or that a prima facie showing has been made. Our review, even accepting Drayton's formulation of the prima facie inquiry under section 1170.95, subdivision (c), requires a record complete with the trial court's determination of the issue in the first instance.
We also decline to prospectively advise the trial court how it should conduct the prima facie review under section 1170.95, subdivision (c). Any opinion on the scope of the prima facie review process, which the trial court has not yet conducted, would be premature and advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 ["We ... abide by ... a '"cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more."'"]; People v. Mosley (2015) 60 Cal.4th 1044, 1054-1055, fn. 7 ["[T]rue adherence to judicial restraint and economy counsels against an unnecessary detour into an analysis of ... statutory meaning [on an issue not before the court]."].) The parties must first address the merits of the petition with the trial court, which will ensure the record is properly and completely developed.
DISPOSITION
The order dismissing defendant's petition pursuant to section 1170.95 is reversed. The matter is remanded to the trial court for further proceedings under section 1170.95.
MEEHAN, J. I CONCUR: DeSANTOS, J. POOCHIGIAN, Acting P.J., Dissenting.
Proposition 7 " 'substantially increase[d] the punishment for persons convicted of first and second degree murder.' " (People v. Nash (2020) 52 Cal.App.5th 1041, 1056.) Because it has no amendment clause, Proposition 7 cannot be amended by the legislature. (Id. at p. 1057.)
Nonetheless, Senate Bill No. 1437 (2017-2018 Reg. Sess. (Senate Bill 1437)) does seek to amend Proposition 7 by undoing application of its penalties "to those defendants coming within Senate Bill ... 1437's reforms." (People v. Lamoureux (2019) 42 Cal.App.5th 241, 268 (dis. opn. of O'Rourke, J).) Before Senate Bill 1437, such defendants would be subject to Proposition 7's penalties. Yet, as a direct result of Senate Bill 1437, such defendants are no longer subject to Proposition 7's penalties. Because Senate Bill 1437 clearly amends Proposition 7, it is invalid.
For these reasons, and those further explained in my concurring and dissenting opinion in Nash, I respectfully dissent. (See People v. Nash, supra, 52 Cal.App.5th at pp. 1084-1087 (conc. & dis. opn. of Poochigian, Acting P.J.)
POOCHIGIAN, Acting P.J.