Opinion
D076489
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE PIZANA, Defendant and Appellant.
Sheila O'Connor, 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 on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for the Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1102700) APPEAL from an order of the Superior Court of San Bernardino County, Shahla S. Sabet, Judge. Reversed and remanded. Sheila O'Connor, 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 on behalf of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for the Plaintiff and Appellant.
Jose Pizana appeals from an order denying the petition for resentencing that he filed pursuant to Penal Code section 1170.95. We conclude that the trial court erred in denying the petition for resentencing on the sole ground that it identified, namely that the Senate Bill enacting section 1170.95 is unconstitutional. We therefore reverse the order and remand for the trial court to consider the merits of the petition.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2013, Pizana pled guilty to voluntary manslaughter (§ 192, subd. (a)) and to kidnapping, with an enhancement for personal infliction of great bodily injury (§§ 207, subd. (a), 12022.7, subd. (a).) Pizana was sentenced to a term of 22 years in prison.
"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.) 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. (Id., § 3.)" (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 274.) Specifically, newly-enacted section 1170.95 sets forth a procedure by which an eligible person may file a petition to have his or her sentence vacated and obtain resentencing.
On May 31, 2019, and again on June 19, 2019, Pizana filed petitions for resentencing under section 1170.95, representing himself in pro per. On July 5, 2019, the People filed an informal response to both petitions, arguing that Pizana could not make a prima facie case for relief because he was not convicted of murder under either the felony murder or natural and probable consequences doctrine, but rather was convicted of voluntary manslaughter. On July 31, 2019, now represented by counsel, Pizana filed an informal reply, arguing that Pizana was eligible for relief because he was charged with murder, purportedly under a felony murder theory, but pled guilty to voluntary manslaughter.
As the petitions are substantively equivalent, we treat them as a single application for relief.
Recent case law rejects the theory advanced in Pizana's informal reply, holding that section 1170.95 does not provide relief to persons convicted of manslaughter by plea, even if the conviction resulted from a plea in a case charging the defendant with murder under a felony murder or natural and probable consequences theory. (People v. Cervantes (2020) 44 Cal.App.5th 884, 886; People v. Flores (2020) 44 Cal.App.5th 985, 993; People v. Turner (2020) 45 Cal.App.5th 428, 435-436.)
On August 19, 2019, the People filed a motion to strike the petition for resentencing. The motion to strike argued that Senate Bill 1437 was unconstitutional because (1) it amended statutes passed as voter initiatives, but it was not approved by a two-thirds vote of each house of the Legislature, or was not approved by the electorate; (2) it violated the separation of powers of doctrine by allowing the Legislature to vacate final judgments; and (3) it conflicted with the Victims Bill of Rights Act of 2008 (Marsy's Law).
On August 20, 2019, the trial court held a hearing at which it explained that it had concluded Senate Bill 1437 was unconstitutional. The trial court expressly stated that it was denying Pizana's petition for resentencing on the basis of unconstitutionality, and it was therefore not reaching the merits of the petition. The trial court did not grant the People's motion to strike.
Pizana appeals from the trial court's denial of his petition for resentencing based on its conclusion that Senate Bill 1437 is unconstitutional. The San Bernardino County District Attorney (the District Attorney) has filed a respondent's brief opposing Pizana's appeal. The Attorney General has filed an amicus brief in support of Pizana's appeal.
The District Attorney has requested that we take judicial notice of certain legislative history materials. We grant the request. --------
II.
DISCUSSION
The issue presented in this appeal is whether Senate Bill 1437 is unconstitutional for any of the reasons identified by the District Attorney. In his respondent's brief, the District Attorney sets forth the following grounds for the contention that Senate Bill 1437 is unconstitutional: (1) Senate Bill 1437 unconstitutionally amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) without voter approval; (2) Senate Bill 1437 unconstitutionally amended Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)) without a vote in favor by two-thirds of both houses of the Legislature or voter approval; (3) the application of section 1170.95 to final judgments violates the separation of powers doctrine; and (4) section 1170.95 directly conflicts with the constitutional rights of victims under the Victims Bill of Rights enacted by Proposition 9 (Marsy's Law).
In People v. Lamoureux (2019) 42 Cal.App.5th 241, we extensively considered and rejected each of the arguments with respect to the unconstitutionality of Senate Bill 1437 and section 1170.95 that the District Attorney presents here. Specifically, we held that Senate Bill 1437 did not unconstitutionally amend Proposition 7 or Proposition 115, and that section 1170.95 did not violate the separation of powers doctrine or the right of victims under Marsy's Law. (Lamoureux, at p. 246.)
Relying on our analysis in Lamoureux, which we incorporate here, we conclude that the District Attorney has not identified any constitutional infirmity with Senate Bill 1437. The trial court accordingly erred in denying Pizana's petition for resentencing based on its ruling that Senate Bill 1437 is unconstitutional.
DISPOSITION
The order denying Pizana's petition for resentencing is reversed, and this matter is remanded to the trial court for further proceedings on the merits of the petition.
IRION, J. I CONCUR: AARON, J. O'ROURKE, J., dissenting.
I respectfully dissent on the grounds previously expressed in People v. Lamoureux (2019) 42 Cal.App.5th 241 and People v. Gooden (2019) 42 Cal.App.5th 270. For the reasons stated, I would affirm the trial court's order denying Pizana's petition for resentencing brought under Penal Code section 1170.95.
O'ROURKE, Acting P. J.