Opinion
G057710
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTOR JESUS LAGUNAS, Defendant and Appellant.
Siri Shetty, 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 amicus curiae for Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06CF3829) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Siri Shetty, 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 amicus curiae for Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
* * *
INTRODUCTION
Pursuant to Penal Code section 1170.95, defendant Victor Jesus Lagunas filed a petition for resentencing. The trial court denied the petition on the ground Senate Bill No. 1437, which had enacted section 1170.95, was unconstitutional because it amended statutes addressed by two voter-approved initiatives: Propositions 7 and 115.
All statutory references are to the Penal Code.
All published opinions addressing this issue have concluded that Senate Bill No. 1437 did not unconstitutionally amend either initiative. Most recently, in People v. Solis (2020) ___ Cal.App.5th ___ (Solis) and People v. Cruz (2020) ___ Cal.App.5th ___ (Cruz), panels of this court concluded that Senate Bill No. 1437 was constitutional. Agreeing with the analyses and the conclusions set forth in those opinions, we reverse the trial court's order and remand with directions to consider defendant's petition for resentencing on its merits.
STATEMENT OF FACTS
The facts are taken from this court's unpublished opinion, People v. Lagunas (Mar. 12, 2009, G039860). --------
"On October 23, 2006, at approximately 7:30 p.m., Benjamin Lopez was talking with Emeterio Adame, while on the sidewalk in front of Adame's house. Adame's house was in an area of Santa Ana which the Alley Boys street gang claimed as its 'territory.' Lopez was a member of the Alley Boys gang at that time. Lopez heard gunshots and saw muzzle flashes coming from behind Adame. Lopez saw Adame fall to the ground. Adame died later of a gunshot wound. [¶] . . . [¶] . . . [D]efendant initially denied any involvement in the shooting, but later admitted being present when a gang member nicknamed 'Termite' shot Adame. Defendant also admitted to being a member of the TPV street gang." (People v. Lagunas, supra, G039860.)
PROCEDURAL HISTORY
A jury found defendant guilty of murder (§ 187, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true sentencing enhancement allegations that in committing the murder, defendant vicariously discharged a firearm (§ 12022.53, subds. (d), (e)(1)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to a total term of 50 years to life plus 16 months: 25 years to life for murder, 25 years to life for the firearm enhancement, and 16 months for active gang participation. This court affirmed the judgment in an unpublished opinion. (People v. Lagunas, supra, G039860.)
In February 2019, defendant, in propria persona, filed a petition for resentencing pursuant to section 1170.95. The district attorney opposed the petition, arguing that Senate Bill No. 1437 was unconstitutional and also that defendant was statutorily ineligible for relief. Through appointed counsel, defendant filed a written reply.
The trial court denied the section 1170.95 petition on the ground Senate Bill No. 1437 was unconstitutional; the court did not address the district attorney's alternative argument that Lagunas was statutorily ineligible for relief under section 1170.95. The court concluded that Senate Bill No. 1437 "materially amends Penal Code § 190, as enacted by the electorate via Proposition 7, in a manner inconsistent with the electorate's intent and without the electorate's approval," and "materially amends Penal Code § 189 and § 190.2, as amended by the electorate via Proposition 115, in a manner inconsistent with the electorate's intent and without the required two-thirds majority of both houses of the California Legislature." Defendant timely filed a notice of appeal.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited application of the felony murder rule and murder based on the natural and probable causes doctrine by modifying the mens rea element of those crimes. The legislation amended section 188 by adding that malice could not be imputed to a person based only on participation in a crime. (Id., subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Section 189 was amended to specify that a person could only be found guilty of murder if that person (1) was the actual killer, or (2) aided, abetted, or otherwise assisted the actual killer and had the intent to kill, or (3) was a major participant in an underlying felony and acted with reckless indifference to human life. (Id., subd. (e), as amended by Stats. 2018, ch. 1015, § 3.) Finally, Senate Bill No. 1437 created a procedure by which a defendant convicted of felony murder or murder based on the natural and probable consequences doctrine could seek to have the conviction vacated. (§ 1170.95, added by Stats. 2018, ch. 1015, § 4.)
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.
The district attorney argues that Senate Bill No. 1437 unconstitutionally amends Propositions 7 and 115 by decreasing the number of people who are subject to conviction, and thus punishment, for murder. In Solis and Cruz, we rejected the district attorney's arguments.
"A statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless the initiative 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, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis at p. *6].)
"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, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis 255 at p. *6-*7].)
With respect to Proposition 7, we 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, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis 225 p. *20]; see Cruz, supra, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis 224 at p. *18].)
With respect to Proposition 115, we held: "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. This does not directly modify or amend the language of Proposition 115." (Solis, supra, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis 225 at pp.*23-*24]; see Cruz, supra, ___ Cal.App.5th at p. ___ [2020 Cal.App. Lexis 224 at pp. *28-*30].)
The Fourth Appellate District, Division One, reached the same conclusion in a pair of cases challenging the constitutionality of Senate Bill No. 1437. In People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden), the appellate court concluded "Senate Bill [No.] 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.) In People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoreaux), the same appellate court used the same analysis as it had in Gooden to again conclude Senate Bill No. 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 [No.] 1437 does not contravene separation of powers principles or violate the rights of crime victims." (Ibid.)
Our analyses and holdings in Solis and Cruz apply equally here, as do the holdings of Gooden and Lamoureux.
DISPOSITION
The postjudgment order is reversed and the matter is remanded with directions to consider the merits of defendant's petition under Penal Code section 1170.95.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.