Opinion
G058025
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. BENITO RAY TREJO, Defendant and Appellant.
Aaron J. Schechter, 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 P. Richards, as Amicus Curiae in support of 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 99NF0024) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded for further proceedings. Request for judicial notice. Denied. Aaron J. Schechter, 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 P. Richards, as Amicus Curiae in support of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
* * *
In 2001, a jury found Benito Trejo guilty of second degree murder (Pen. Code, § 187, subd. (a)(1); all further statutory references are to the Penal Code) and several related charges. We affirmed the convictions, concluding there was sufficient evidence to support the jury's determination that Trejo was the actual shooter or that he aided and abetted the shooter. (People v. Trejo (Dec. 12, 2003, G028757) [nonpub. opn.])
In 2018, the Legislature enacted Senate Bill No. 1437 (Sen. Bill 1437), which limited accomplice liability under the felony murder rule and the natural and probable consequences doctrine by amending sections 188 and 189. (§§ 188, 189; see People v. Cruz (2020) 46 Cal.App.5th 740, 755 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762, 768 (Solis).) Sen. Bill 1437 also implemented a process allowing persons previously convicted of murder under a natural and probable consequences theory or felony murder to petition the superior court for vacation of their murder convictions and for resentencing, if they could not be convicted of murder now based on the amendments to sections 188 and 189. (§ 1170.95.)
On January 7, 2019, Trejo filed a petition for resentencing under section 1170.95. The petition alleged he was convicted of second degree murder under the natural and probable consequences doctrine or under the felony murder rule, and that under Sen. Bill 1437 he could not now be convicted of murder.
The trial court denied the petition on the sole basis that Sen. Bill 1437 was unconstitutional because it improperly amended Propositions 7 and 115. In two recently published opinions, this court concluded Sen. Bill 1437 is constitutional because it neither adds any particular provision to nor subtracts any particular provision from either Proposition 7 or Proposition 115. (Cruz, supra, 46 Cal.App.5th at p. 747; Solis, supra, 46 Cal.App.5th at p. 769.) We decline to revisit those decisions. Accordingly, we reverse the trial court's order and direct the trial court to consider the merits of Trejo's petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
As recounted in our prior opinion, Trejo and fellow gang members fired numerous bullets into the victim's car under the mistaken belief that the victim or a passenger was a rival gang member. The person who fired the fatal shot was not identified. (People v. Trejo (Dec. 12, 2003, G028757 [nonpub opn.].)
The jury found Trejo guilty of (1) second-degree murder; (2) attempted murder; (3) shooting at an occupied motor vehicle; and (4) street terrorism. It also found true gang and firearm allegations. The trial court sentenced Trejo to a total of 35 years to life in state prison.
After the Legislature enacted Sen. Bill 1437, Trejo filed a petition requesting resentencing under section 1170.95. The District Attorney opposed the petition, arguing Sen. Bill 1437 violates the California Constitution. The District Attorney also argued Trejo was statutorily ineligible for resentencing because he aided and abetted the murder and acted with express malice.
The trial court denied the resentencing petition after concluding that Sen. Bill 1437 was unconstitutional. It did not address whether Trejo was statutorily ineligible for resentencing relief.
II
DISCUSSION
Trejo contends the trial court erred in denying his section 1170.95 petition. He argues Sen. Bill 1437 did not amend any law enacted by voter initiative. The District Attorney renews his contention that Sen. Bill 1437 improperly amended Propositions 7 and 115. We disagree. As recently discussed in Cruz, supra, 46 Cal.App.5th 740, and Solis, supra, 46 Cal.App.5th 762, Sen. Bill 1437 did not amend either initiative.
The District Attorney filed a request for judicial notice of various legislative and ballot materials related to Propositions 7 and 115. Because we agree with the decisions in Cruz and Solis on the pertinent issues, we need not consider those materials and therefore deny the request for judicial notice. --------
Proposition 7 increased the penalties for first and second degree murder by amending section 190, and sought to strengthen and expand the death penalty by amending sections 190.1 through 190.5. (Cruz, supra, 46 Cal.App.5th at pp. 751-754; Solis, supra, 46 Cal.App.5th at pp. 775-776.) As we previously concluded, Sen. Bill 1437 does not amend Proposition 7 because Sen. Bill 1437 "does not take away from the initiative's statutory provisions; it does not authorize what Proposition 7 prohibits or prohibit what Proposition 7 authorizes; and it addresses an area related to but distinct from Proposition 7's provisions concerning the penalty for murder." (Cruz, supra, 46 Cal.App.5th at p. 757; accord, Solis, supra, 46 Cal.App.5th at p. 779.)
Proposition 115, among other things, amended section 189 by adding five serious felonies to the list of predicate offenses for first degree felony murder. (Cruz, supra, 46 Cal.App.5th at pp. 759-760; Solis, supra, 46 Cal.App.5th at pp. 780.) Sen. Bill 1437 does not amend Proposition 115 because it did not remove Proposition 115's five felonies from the list of predicate offenses. In addition, Sen. Bill 1437's restrictions on accomplice liability for felony murder did not constitute an amendment to Proposition 115 because Proposition 115 did not specifically authorize or prohibit restrictions on the application of first degree felony-murder rule to accomplices. (Cruz, supra, 46 Cal.App.5th at pp. 759-760; Solis, supra, 46 Cal.App.5th at pp. 781-782.) In sum, Sen. Bill 1437 does not unconstitutionally amend Proposition 7 or Proposition 115.
III
DISPOSITION
The order is reversed and the matter remanded for further proceedings on Trejo's petition pursuant to section 1170.95.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.