Opinion
F080245
10-23-2020
THE PEOPLE, Plaintiff and Respondent, v. WALTER GERARD KING, Defendant and Appellant.
Fresno Defenders and Dan Moseley for Defendant and Appellant. Lisa A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F11906258)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Fresno Defenders and Dan Moseley for Defendant and Appellant. Lisa A. Smittcamp, District Attorney, and Kelsey C. Peterson, Deputy District Attorney, for Plaintiff and Respondent.
-ooOoo-
This case presents the question whether Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill No. 1437) is constitutional. We follow a growing line of published appellate authority — including a recent opinion from this court — in holding that it is. Accordingly, we reverse the trial court's order denying Walter Gerard King (defendant) relief under Penal Code section 1170.95, and remand the matter to the trial court for further proceedings.
Further statutory references are to the Penal Code.
PROCEDURAL HISTORY
Defendant was charged, by second amended information, with murder with a robbery felony-murder special circumstance (§§ 187, subd. (a), 190.2, subd. (a)(17)(A); count 1), robbery (§ 211; count 2), and attempted second degree robbery (§§ 211, 664; count 3). As to each count, it was alleged a principal personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)) and the crime was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The crimes were alleged to have occurred in October 2011, when defendant was 17 years old.
The circumstances of the underlying crimes are not relevant to the issue raised on appeal.
A jury convicted defendant, on count 1, of first degree murder. Jurors found the firearm allegation true, but the special circumstance allegation not true. As to count 2, the jury convicted defendant of the lesser included offense of attempted robbery and found the firearm allegation true. The jury acquitted defendant on count 3. Following a bifurcated court trial, the gang enhancement was found true.
On April 18, 2013, defendant was sentenced to prison for a total of 50 years to life on count 1, and three years plus 25 years to life on count 2. Sentence on count 2 was stayed pursuant to section 654. Defendant was also ordered to pay restitution, as well as various fees, fines, and assessments.
On appeal, this court affirmed. Following a grant of review and retransfer from the California Supreme Court, we again affirmed, but remanded the matter to the trial court to afford defendant the opportunity to make a record of information relevant to his eventual youth offender parole hearing. (People v. King (Oct. 25, 2016, F067104) [nonpub. opn.].)
Beginning January 28, 2019, defendant filed multiple petitions for resentencing pursuant to section 1170.95, which was enacted as part of Senate Bill No. 1437 and went into effect on January 1, 2019. (Stats. 2018, ch. 1015, § 4.) The People opposed the motion. They took the position Senate Bill No. 1437 violated the California Constitution, but acknowledged that if the legislation was constitutional, defendant should be resentenced on count 2 and the firearm enhancement.
Although multiple petitions were filed, all were signed on January 22, 2019, and appear to have been treated as a single petition.
At all times pertinent to the proceedings under section 1170.95 and the present appeal, the People have been represented by the District Attorney of Fresno County.
The People filed a separate motion to dismiss defendant's petition for resentencing based on the unconstitutionality of Senate Bill No. 1437. The People argued the enactment unconstitutionally amended Proposition 7 (Gen. Elec., Nov. 7, 1978, commonly referred to as the Briggs Initiative) and Proposition 115 (Primary Elec., June 5, 1990, the "Crime Victims Justice Reform Act"), violated the separation of powers doctrine, and directly conflicted with the constitutional rights of victims as set out in Proposition 9 (Gen. Elec., Nov. 4, 2008, the "Victims' Bill of Rights Act 2008: Marsy's Law"). The court appointed counsel for defendant, who asserted Senate Bill No. 1437 was constitutional.
The matter was heard August 6, 2019. In its written ruling, the trial court concluded Senate Bill No. 1437 unconstitutionally amended Propositions 7 and 115 insofar as it restricted liability for felony murder under section 189. Accordingly, it denied defendant's petition for resentencing and granted the People's motion to dismiss the petition.
The trial court did not address the People's separation of powers and victims' rights arguments.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 "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, subd. (f).) In pertinent part, Senate Bill No. 1437:
(1) amended section 188 to include subdivision (a)(3), which provides: "Except as 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) added subdivision (e) to section 189 to provide: "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) 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 section 188 or 189 by Senate Bill No. 1437. (§ 1170.95, subd. (a).)
On appeal, the People do not depart from their concession that, if Senate Bill No. 1437 is constitutional, then, in light of the trial jury's rejection of the robbery-murder special circumstance allegation, defendant is entitled to have his murder conviction vacated and to be resentenced on the remaining count. (See § 1170.95, subd. (d)(2).) They continue to assert, however, that Senate Bill No. 1437 unconstitutionally amended Propositions 7 and 115, as found by the trial court. They also argue the new law violates the separation of powers doctrine and conflicts with victims' constitutional rights as set out in Proposition 9.
Recently, in People v. Nash (2020) 52 Cal.App.5th 1041, 1053, this court rejected these arguments. In so doing, we joined our colleagues in other Courts of Appeal who have considered and rejected some or all of the same claims. (See, e.g., People v. Marquez (G058719, Oct. 20, 2020) ___ Cal.App.5th ___, ___-___ [2020 Cal.App. LEXIS 970, *2, *5-*13] [Prop. 9, separation of powers]; People v. Lombardo (2020) 54 Cal.App.5th 553, 555, 559-565 [Props. 7, 9 ("Marcy's Law"), 115]; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 902 [Props. 7, 115]; People v. Lopez (2020) 51 Cal.App.5th 589, 594 [same]; People v. Alaybue (2020) 51 Cal.App.5th 207, 211 [Props. 7, 115; separation of powers]; People v. Johns (2020) 50 Cal.App.5th 46, 54-55 [Props. 7, 9, 115; separation of powers]; People v. Prado (2020) 49 Cal.App.5th 480, 492 [Props. 7, 115]; People v. Smith (2020) 49 Cal.App.5th 85, 91-92 [Prop. 7], review granted July 22, 2020, S262835; People v. Bucio (2020) 48 Cal.App.5th 300, 306 [Props. 7, 115]; People v. Solis (2020) 46 Cal.App.5th 762, 784 [same]; People v. Cruz (2020) 46 Cal.App.5th 740, 747 [same]; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275, 289 [same]; People v. Lamoureux (2019) 42 Cal.App.5th 241, 246 [Props. 7, 9, 115; separation of powers].)
One justice dissented from the majority's conclusion with regard to Proposition 7, but otherwise concurred. (People v. Nash, supra, 52 Cal.App.5th at p. 1084 (conc. & dis. opn. of Poochigian, A.P.J.).)
Nash and the foregoing opinions are persuasive, and we find no reason to depart from their analyses or conclusions. Nor, in light of Nash's detailed reasoning and explanations, is it necessary for us to repeat that decision's cogent analysis. Senate Bill No. 1437 is constitutionally sound. The trial court erred by concluding otherwise. Defendant is entitled to have his murder conviction and the attendant enhancements vacated, and to be resentenced on the remaining count and enhancements.
Although section 1170.95 does not mention enhancements, it is settled that an enhancement does not stand alone but requires a conviction of a related substantive offense. (People v. Garcia (2002) 28 Cal.4th 1166, 1174; People v. Dennis (1998) 17 Cal.4th 468, 500.)
We note that the discretion granted trial courts to strike or dismiss firearm enhancements pursuant to section 1385, which went into effect after defendant's conviction became final, "applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.)
DISPOSITION
The order denying defendant's petition for resentencing pursuant to section 1170.95 and granting the People's motion to dismiss said petition is reversed. The matter is remanded to the trial court for further proceedings under section 1170.95.
DETJEN, J. WE CONCUR: LEVY, Acting P.J. PEÑA, J.