Opinion
E072629
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE MORRIS SALCIDO, Defendant and Appellant.
Steven L. Harmon, Public Defender, and Joshua A. Knight, Deputy Public Defender, for Defendant and Appellant. Michael A. Hestrin, District Attorney, and Alan D. Tate, Lead Deputy District Attorney, for Plaintiff and Respondent. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, and Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for the Attorney General as Amicus Curiae on behalf of Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF102042) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions. Steven L. Harmon, Public Defender, and Joshua A. Knight, Deputy Public Defender, for Defendant and Appellant. Michael A. Hestrin, District Attorney, and Alan D. Tate, Lead Deputy District Attorney, for Plaintiff and Respondent. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, and Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for the Attorney General as Amicus Curiae on behalf of Defendant and Appellant.
In 2004, petitioner Jose Morris Salcido was convicted of first degree murder. He was not the actual killer; he was convicted as an aider and abettor, on a natural and probable consequences theory. In December 2018, his habeas corpus petition was granted; his conviction was reduced to second degree murder, and a resentencing hearing was set for January 2019.
On January 1, 2019, however, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) went into effect. It abrogated the natural and probable consequences doctrine. It also allowed persons previously convicted of murder under the natural and probable consequences doctrine to have their convictions vacated.
Petitioner immediately filed a petition under SB 1437; his resentencing hearing was continued. The trial court ruled, however, that SB 1437 was unconstitutional. Hence, it denied the petition and resentenced him for second degree murder.
Petitioner appeals. In response, the People argue that SB 1437 is indeed unconstitutional, not only on the grounds cited by the trial court, but also on multiple others.
We reject the People's contentions. Some of their contentions assume that there was a final judgment of conviction. However, there was no final judgment against petitioner, because he was awaiting resentencing. Some of their contentions they lack standing to raise. One contention simply is not presented on the facts of this case. We reject the remaining contentions on the merits. Accordingly, we will reverse the denial of the petition, vacate the judgment, and direct the trial court to reconsider the petition.
I
STATEMENT OF FACTS
The following facts are taken from our 2007 opinion affirming petitioner's conviction, except for the name of the victim, which is taken from the opinion in Phillips v. Herndon (9th Cir. 2013) 730 F.3d 773.
Petitioner lived and worked with Robert Cress and Steven Phillips.
On February 18, 2002, Cress's mother told Cress that victim William Jacob had impregnated her and had given her a sexually transmitted disease. This was false. She also told Cress to "kick [Jacob's] ass."
The next day, February 19, 2002, Cress asked a friend to find out whether Jacobs had any children or if there were any children at his house. Petitioner admitted being aware of this.
At Cress's request, Cress asked petitioner to drive him and Phillips to Jacob's house, to "beat [Jacob] up." Petitioner complied. On the way there, Cress and Phillips said again that they intended to beat Jacob up. Petitioner later told police that he was anticipating a "'two on one' fistfight." (Italics omitted.) He claimed he did not know that Cress or Phillips was armed.
When they arrived, Cress and Phillips got out. Petitioner waited outside in his van. He claimed that he parked down the street from Jacob's house, so he did not see what happened after that. He told Cress's sister, however, that he saw Phillips pull out a gun as he was walking up to the house; the victim opened his front door, then tried to close it, but Phillips shot him through the door.
The victim was shot in the face and died. His front door was closed and locked; there were three bullet holes through it. Cress's knife was found at the scene.
Petitioner drove Cress and Phillips away. Phillips threw the gun out the window of the van.
After Cress got home, he was hysterical, crying, shaking, and vomiting; he told relatives, "It wasn't supposed to happen like this." Cress's mother asked petitioner "what kind of friend he was." He replied, "The same kind of friend anybody would be to me if somebody did my mom that way."
II
STATEMENT OF THE CASE
In 2004, petitioner was convicted of first degree murder. (§§ 187, subd. (a), 189, subd. (a).) He was sentenced to 25 years to life in prison.
These and all further statutory citations are to the Penal Code unless otherwise specified.
He appealed. In 2007, we affirmed. In the course of doing so, we noted that the People had prosecuted petitioner on six separate theories. One of these required that he personally intend to kill; five of them did not, but rather depended on the natural and probable consequences doctrine. Petitioner did not file a petition for review.
Specifically, we stated: "The theories supporting Cress's and Salcido's guilt were: (1) aiding and abetting a malice aforethought premeditated and deliberate murder; (2) aiding and abetting an aggravated assault, the natural and probable consequences of which were murder; (3) aiding and abetting battery, the natural and probable consequences of which were murder; (4) being a conspirator in a conspiracy to commit murder, the natural and probable consequences of which were murder; (5) being a conspirator in a conspiracy to commit aggravated assault, the natural and probable consequences of which were murder; and (6) being a conspirator in a conspiracy to commit battery, the natural and probable consequences of which were murder."
In 2018, petitioner filed a habeas petition, seeking relief based on People v. Chiu (2014) 59 Cal.4th 155, which had held that an aider and abettor cannot be convicted of premeditated first degree murder under the natural and probable consequences doctrine; rather, an aider and abettor must personally premeditate, deliberate, and intend to kill.
The People conceded that petitioner was entitled to relief. They also conceded that "the evidence as summarized in the Court of Appeal opinion demonstrates that it would be impossible to successfully prosecute petitioner as a direct aider and abettor to the charged murder." Thus, the trial court reduced his conviction to second degree murder. It set resentencing for January 11, 2019.
On January 1, 2019, SB 1437 went into effect. On January 2, 2019, petitioner filed a petition pursuant to SB 1437. The resentencing hearing was continued until after the hearing on the SB 1437 petition.
The People opposed the petition. They argued that SB 1437 was unconstitutional on four grounds: it amended Proposition 7; it amended Proposition 115; it violated the separation of powers; and it violated the Victims' Bill of Rights (Cal. Const., art. I, § 28).
The People also argued, alternatively, that petitioner could be convicted of second degree murder, even after SB 1437, because he acted with the intent to kill and/or because he was a major participant in the underlying crime and he acted with reckless indifference to life.
They do not reiterate that argument in this appeal. And for good reason. Being a major participant who acted with reckless indifference only permits a conviction under the felony murder rule. There is no similar exception that permits a conviction under the natural and probable consequences doctrine.
Moreover, on this record, there was insufficient evidence that petitioner intended to kill or acted with reckless indifference to life. The evidence showed that he expected Cress and Phillips to beat the victim up. There was no evidence that he knew Phillips had a gun until Phillips was already out of the van and walking up to Jacob's house. Cress later moaned, "It wasn't supposed to happen like this." (See generally People v. Clark (2016) 63 Cal.4th 522, 618-623.)
In April 2019, the trial court denied the petition. It ruled: "[SB 1437] amends Proposition 7 by effectively authorizing reduced penalties for those persons already lawfully convicted of murder, such as defendant who, though pending resentencing, stood convicted of second degree murder when [SB 1437] took effect." (Fn. omitted.) It then resentenced defendant to 15 years to life in prison.
III
AMENDMENT OF PROPOSITIONS
A. The Constitutional Rule.
Under article II, section 10, subdivision (c) of the California Constitution (section 10(c)), the Legislature cannot unilaterally amend an initiative. Either the initiative must permit amendment, or the voters must approve the amendment.
"'In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the [a]ct. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the [a]ct. [Citations.]' [Citation.]" (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252.) At the same time, "we must bear in mind the declared 'duty of the courts to jealously guard' the people's right of initiative and referendum. [Citations.] '[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.' [Citations.]" (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 708.)
Under this liberal construction, section 10(c) is not limited to express amendments to the text of an initiative. Rather, "'[f]or purposes of article II, section 10, subdivision (c), an amendment includes a legislative act that changes an existing initiative statute by taking away from it.' [Citation.]" (People v. DeLeon (2017) 3 Cal.5th 640, 651.) By contrast, "[t]he Legislature remains free to enact laws addressing the general subject matter of an initiative, or a 'related but distinct area' of law that an initiative measure 'does not specifically authorize or prohibit.' [Citations.]" (People v. Kelly (2010) 47 Cal.4th 1008, 1027.)
We review rulings regarding the effect of section 10(c) de novo. (People v. Armogeda (2015) 233 Cal.App.4th 428, 435.)
B. The Enactment and Effect of SB 1437.
SB 1437 was enacted in 2018, effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.)
Previously, under the natural and probable consequences doctrine, an aider and abettor could "'be held criminally responsible . . . not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime [nontarget crime] that is the "natural and probable consequence" of the target crime.' [Citation.] To find an aider and abettor guilty of a nontarget crime under the natural and probable consequences theory, the jury must find that the defendant aided and abetted the target crime, that a coparticipant in the target crime also committed a nontarget crime, and that this nontarget crime was a natural and probable consequence of the target crime the defendant aided and abetted. [Citation.]" (People v. Hardy (2018) 5 Cal.5th 56, 92.)
The natural and probable consequences doctrine did not apply to first degree murder (People v. Chiu, supra, 59 Cal.4th at pp. 166-167); an aider and abettor could not be guilty of first degree murder unless he or she personally deliberated, premeditated, and intended to kill. (Id. at p. 166.) However, it did apply to second degree murder. (Id. at pp. 165-166.)
SB 1437 eliminated the natural and probable consequences rule as applied to murder. It also restricted the scope of the felony murder rule.
Specifically, it amended section 188, concerning malice, so as to provide that, except as permitted by the felony murder rule, "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." (§ 188, subd. (a)(3).)
It also amended section 189, concerning the degrees of murder, so as to provide that the felony murder rule (§ 188, subd. (a)) applies to a person only if:
"(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 . . . .
"[(4) T]he victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who was convicted of first or second degree murder under a natural and probable consequences or felony murder theory, but who could not be so convicted under SB 1437, to petition to have the conviction vacated. If the target offense was not charged, the conviction is reduced to the target offense, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
C. Amendment of Proposition 7.
Defendant contends that the trial court erred by ruling that SB 1437 unconstitutionally amends Proposition 7.
Proposition 7, a/k/a the Briggs Initiative, was enacted in 1978. It changed the law regarding murder in several respects. As relevant here, it amended section 190 so as to increase the penalties for first and second degree murder. Specifically, for first degree murder, it changed the minimum penalty from life with a minimum parole period of 7 years to life with a minimum parole period of 25 years; and for second degree murder, it increased the penalty from 5, 6, or 7 years to 15 years to life. (Compare § 190, subd. (a), with former § 190, subd. (a), Stats. 1977, ch. 316, § 5, p. 1256, and § 3046.)
Proposition 7 did not allow any amendments by the Legislature. (See Prop. 7, 1978 Ballot Pamp. at pp. 33, 41-46; see also People v. Ruiz (1996) 44 Cal.App.4th 1653, 1658.)
SB 1437 did not amend the text of Proposition 7. Rather, it changed the definition of murder, so that a person, like petitioner, who committed what was then murder based on the natural and probable consequences doctrine, is no longer guilty of murder. The question, then, is whether it thereby does something that Proposition 7 specifically authorizes or prohibits. (People v. Kelly, supra, 47 Cal.4th at p. 1027.)
"'"It is a well[-]established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified . . . . [Citations.] [¶] . . . [¶] . . . [T]here is a cognate rule, recognized as applicable to many cases, to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time, and . . . as they may be subjected to elimination altogether by repeal. [Citations.]"' [Citation.]" (People v. Cooper (2002) 27 Cal.4th 38, 44.) Proposition 7 did not cite or specifically refer to the statutes defining murder; it merely referred to murder in general. We conclude that it did not freeze the then-existing definition of murder. It left the Legislature free to redefine murder in the future. Thus, SB 1437, as applied to persons whose criminal conviction were not final when it went into effect, did not unconstitutionally amend Proposition 7.
The author of this opinion is inclined to the view that SB 1437, as applied to persons whose criminal conviction became final before it went into effect, did unconstitutionally amend Proposition 7, because at that time, Proposition 7 did specifically authorize their conviction and sentence. The other members of the panel may or may not agree. We need not reach this question, however, because petitioner is not in that position. Admittedly, he was tried, convicted, and sentenced before SB 1437 went into effect. Nevertheless, his conviction was not final, because his habeas petition had been granted and he had not yet been resentenced. (People v. Padilla (2020) 50 Cal.App.5th 244, 253-254, pet. for rev. filed Jul. 17, 2020.) And absent a contrary legislative intent, an ameliorative change in the criminal law applies to all defendants whose convictions are not yet final. (In re Estrada (1965) 63 Cal.2d 740, 744-748.)
Even on the author's view, SB 1437 is not wholly unconstitutional; rather, the only portion that is unconstitutional is section 1170.95. That section is "'grammatically, functionally, and volitionally separable'" from SB 1437's amendments to sections 188 and 189. (See California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 271.) Accordingly, it can be severed, and the remainder of SB 1437 can be enforced. (Id. at pp. 270-271; see also People v. Kelly, supra, 47 Cal.4th at p. 1048 [where statute violated section 10(c) as applied, "the appropriate remedy . . . is to disapprove, or disallow, only the unconstitutional application . . . , thereby preserving any residuary constitutional application"].) On that view, then, because petitioner's conviction was not final, he was entitled to the benefit of the amendments to sections 188 and 189. And it goes without saying that, if SB 1437 is entirely constitutional, then he was equally so entitled. In sum, then, SB 1437, as applied to petitioner, does not unconstitutionally amend Proposition 7.
Admittedly, petitioner filed a petition pursuant to section 1170.95. Even assuming that section is unconstitutional, however, the verdict had become "contrary to law," and therefore he was entitled to have it modified. (§§ 1181, subd. 6, 1201.)
D. Amendment of Proposition 115.
The People contend that SB 1437 unconstitutionally amended Proposition 115.
We summarily reject this contention for the reasons stated in People v. Johns (2020) 50 Cal.App.5th 46, 65-66 and People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 287-288.
IV
SEPARATION OF POWERS
A. Usurpation of Judicial Power.
The People contend that SB 1437, and section 1170.95 in particular, violates the constitutional requirement of separation of powers (Cal. Const., art. III, § 3) because it legislatively annuls final judicial judgments.
We need not decide this issue, because it is not presented in this case. As already discussed in part III.C, ante, when the trial court ruled, petitioner's conviction was not yet final, because his habeas petition had been granted and he was awaiting resentencing. "We will not, of course, adjudicate hypothetical claims or render purely advisory opinions. [Citation.]" (People v. Chadd (1981) 28 Cal.3d 739, 746.)
B. Usurpation of Executive Power.
The People contend that SB 1437 violates the separation of powers because it usurps the Governor's pardon power. They did not raise this argument below. We address it nevertheless, because it presents a pure question of law based on undisputed facts. (See People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3; People v. Hines (1997) 15 Cal.4th 997, 1061; but see People v. Williams (2008) 43 Cal.4th 584, 624-625 [questioning scope of this exception in criminal cases].)
However, we summarily reject this contention for the reasons stated in People v. Lamoureux (2019) 42 Cal.App.5th 241, 254-256.
V
THE VICTIMS' BILL OF RIGHTS
The People contend that SB 1437 violates the Victims' Bill of Rights, a/k/a Proposition 9, a/k/a Marsy's Law. (Cal. Const., art. I, § 28.)
They rely on the following three provisions of Marsy's Law:
1. "[A] victim shall be entitled to the following rights: [¶] . . . [¶] . . . To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings." (Cal. Const., art. I, § 28, subd. (b)(9).)
2. "[A] victim shall be entitled to the following rights: [¶] . . . [¶] . . . To have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgment release decision is made." (Cal. Const., art. I, § 28, subd. (b)(16).)
3. "Sentences . . . shall be carried out in compliance with the courts' sentencing orders, and shall not be substantially diminished by early release policies intended to alleviate overcrowding in custodial facilities." (Cal. Const., art. I, § 28, subd. (f)(5).)
The People also quote extensively from the Victims' Bill of Rights' uncodified findings and declarations (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9, § 2, pp. 128-129) and from its introductory statement of purposes. (Cal. Const., art. I, § 28, subd. (a).) However, they do not articulate how SB 1437 violates these provisions, if at all. Assuming they are actually relying on them, we decline "to expand the scope of Marsy's Law beyond its codified text . . . ." (People v. Lamoureux, supra, 42 Cal.App.5th at p. 266; see also People v. Guzman (2005) 35 Cal.4th 577, 588.)
The Victims' Bill of Rights confers one set of rights on "a victim." (Cal. Const., art. I, § 28, subd. (b) (subdivision (b)).) It adds that these particular rights "are personally enforceable by victims . . . ." (Cal. Const., art. I, § 28, subd. (f) (subdivision (f)); see also id., subd. (c).) It then confers a separate set of "collectively held rights" that are "shared" by "the People" as well as victims. (Cal. Const., art. I, § 28, subd. (f).) Thus, it indicates that the People have no standing to enforce the first set of rights in subdivision (b).
We therefore disregard the first two provisions cited by the People, which are both found in subdivision (b), and limit our consideration to the third cited provision, which is found in subdivision (f).
Subdivision (f)(5) prohibits "early release policies intended to alleviate overcrowding in custodial facilities" if they "substantially diminish[]" sentences. One of the stated purposes of SB 1437 was "the reduction of prison overcrowding . . . ." (Stats. 2018, ch. 1015, § 1, subd. (e), p. 6674.) However, there were others, as well, including "to more equitably sentence offenders in accordance with their involvement in homicides (Stats. 2018, ch. 1015, § 1, subd. (b), p. 6674) and to "fairly address[] the culpability of the individual" (Stats. 2018, ch. 1015, § 1, subd. (e), p. 6674).
The People themselves argue that prison overcrowding had already largely been eliminated and that SB 1437 "goes much farther than necessary to address any possible remaining prison overcrowding." Subdivision (f)(5) does not, in so many words, prohibit early release policies that serve other purposes. We conclude that the mere fact that one of the lesser purposes of SB 1437 was to reduce prison overcrowding is not fatal to SB 1437 under subdivision (f)(5).
More generally, subdivision (f)(5) also provides, "Sentences . . . shall be carried out in compliance with the courts' sentencing orders . . . ." Nevertheless, the Victims' Bill of Rights contemplates the existence of procedures to reduce or eliminate a sentence post-judgment. It specifically refers to "post-judgment proceedings" (Cal. Const., art. I, § 28, subd. (a)(9)), including "post-conviction release" proceedings and decisions. (Id., subd. (a)(7), (a)(8), (b)(16).) It would be absurd to suppose that it eliminated any post-judgment alteration of a sentence, such as habeas corpus. We construe "the courts' sentencing orders" as broad enough to include a court's post-judgment order altering a sentence.
Moreover, the Victims' Bill of Rights sheds light on subdivision (f)(5) in its findings and declarations. These explain that victims have "the right to expect that the punitive and deterrent effect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constitution or by the laws of this State . . . ." (Cal. Const., art. I, § 28, subd. (a)(5), italics added.) The general reference to this state's laws must be construed as including future laws. (People v. Cooper, supra, 27 Cal.4th at p. 44.) It contraindicates any intent to prevent the Legislature from altering sentences at all.
We therefore conclude that SB 1437 does not violate the Victims' Bill of Rights.
VI
VIOLATIONS OF DEFENDANTS' RIGHTS
The People contend that SB 1437 at least potentially violates a defendant's right against double jeopardy, right to trial by jury, and due process right against the revival of lapsed statutes of limitations.
Once again, the People did not raise this contention below, but we consider it because it raises a pure question of law based on undisputed facts. (See part IV.B, ante.)
However, we agree with People v. Lamoureux, supra, 42 Cal.App.5th 241, that the People lack standing to assert these rights; they belong to an accused. (Id. at p. 267.) We therefore do not consider the merits of these contentions.
VII
EFFECT ON THE DEATH PENALTY
Finally, the People contend that SB 1437 places California's death penalty laws, as they apply to aiders and abettors, in "constitutional jeopardy."
We note again that the People did not raise this contention below, but we consider nevertheless. (See part IV.B, ante.)
Even assuming SB 1437 has rendered the death penalty laws unconstitutional, the People do not explain how that would invalidate SB 1437. We do not reach this issue because (1) the People do not actually argue that the death penalty laws are now unconstitutional, only that they are "endanger[ed]"; and (2) there is no issue regarding the death penalty in this case.
VIII
DISPOSITION
The order appealed from is reversed. Petitioner's sentence is vacated. The matter is remanded for further proceedings not inconsistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. RAPHAEL
J.