California Cases March 25, 2020: People v. Perez

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA209482)

APPEAL from orders of the Superior Court of the County of Los Angeles, Robert Perry, Judge. Reversed and remanded with instructions.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert Perez.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Ernesto Leon.

Xavier Becerra, Attorney General, Thomas S. Patterson, Senior Assistant Attorney General, Tamar Pachter and Nelson R.

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Richards, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants Gilbert Perez and Ernesto Leon appeal from the trial court's orders denying their petitions under Penal Code section 1170.95 for resentencing on their felony murder convictions. Defendants contend the court erred by concluding that Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95 were unconstitutional. The Attorney General concedes and we agree that the court erred. We therefore reverse the orders with instructions on remand to vacate defendants' murder convictions and conduct further proceedings pursuant to section 1170.95.

A. Defendants' Pleas

On December 10, 2001, Perez pleaded guilty or no contest, pursuant to a plea agreement, to first degree murder. He was sentenced to a term of 25 years to life.

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On March 28, 2002, Leon pleaded guilty to second degree murder pursuant to a plea agreement and was thereafter sentenced on June 21, 2002, to a term of 15 years to life.

The parties agree that both defendants were convicted under a felony murder theory of liability.

B. Section 1170 . 95 Petitions

In January 2019, defendants filed their respective petitions for resentencing under newly enacted section 1170.95. The District Attorney filed oppositions to each petition, arguing that section 1170.95 was unconstitutional because it violated separation of powers principles by mandating that trial courts reopen final judgments and also infringed on the Governor's pardon and commutation powers. Following a reply by Leon, the District Attorney filed supplemental oppositions, arguing that section 1170.95 was unconstitutional for the additional reasons that it impermissibly amended two California voter initiatives (Propositions 7 and 115) and violated the rights of victims and the People to due process.

During hearings held in February 2019, the District Attorney informed the trial court that the People conceded on the merits of each petition, but not on the constitutionality of section 1170.95.

On April 29, 2019, the trial court held a hearing on defendants' petitions. During the hearing, the court stated its understanding that "[t]he prosecution has conceded that if the new law is valid . . . the court is required, pursuant to the new law, to reduce the defendants' . . . sentences. That they would not qualify for the sentences they got in light of the new law."

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Defendants submitted without further argument. The court then denied the petitions on the grounds that Senate Bill 1437 was unconstitutional because it "illegally . . . amended Proposition 7 and Proposition 115." The court further stated that Senate Bill 1437 violated the victims' bill of rights and the People's due process right to a speedy trial "as it purports to vacate final judgments in criminal cases."

A. Senate Bill 1437's Amendments to Sections 188 and 189 and Addition of Section 1170 . 95

"[Senate Bill 1437], effective January 1, 2019, amended the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437

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also permits, through new []section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437's changes to the definition of the crime." ( People v . Verdugo (2020) 44 Cal.App.5th 320, 323, original fn. omitted.)

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B. Constitutionality

On appeal, both defendants contend that the trial court erred in concluding that Senate Bill 1437's amendments to the felony murder rule and its elimination of the natural and probable consequences doctrine as it relates to murder were unconstitutional. Defendants argue that Senate Bill 1437 does not violate the California Constitution's separation of powers doctrine because it does not improperly amend either Proposition 7 or 115. They further contend that section 1170.95 does not violate the victims' bill of rights (Cal. Const., art. I, § 28, subd. (a) (5), (6), (8)). In addition, defendant Leon argues that section 1170.95 does not violate the separation of powers doctrine because it does not require trial courts to reopen final judgments.

The Attorney General agrees that the trial court erred in finding Senate Bill 1437 and section 1170.95 unconstitutional, arguing that Senate Bill 1437 does not improperly amend Propositions 7 and 115 and that retroactive application of the law under section 1170.95 does not violate the separation of powers doctrine or the victims' bill of rights.

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1. Recent Authority

In a pair of recent decisions from the Fourth Appellate District, Lamoureux , supra , 42 Cal.App.5th 241 and People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270 ( Gooden ), the Fourth Appellate District considered various constitutional issues concerning Senate Bill 1437 and section 1170.95.

a. Gooden

In Gooden , supra , 42 Cal.App.5th 270, the court concluded that Senate Bill 1437 does not unconstitutionally amend Proposition 7. "[T]he voters who enacted Proposition 7 considered and approved increased punishments for persons convicted of murder, including additional means by which such persons could be punished by death or LWOP. However, the text of the initiative and the ballot materials for the initiative do not demonstrate an intent to freeze the substantive elements of murder in place as they existed in 1978. Therefore, Senate Bill

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1437—which did not address the issue of punishments for persons convicted of murder—cannot be considered an amendment to Proposition 7." ( Gooden , supra , 42 Cal.App.5th at p. 286.)

The court in Gooden , supra , 42 Cal.App.5th 270 also concluded that Senate Bill 1437 did not improperly amend Proposition 115. "Senate Bill 1437 did not augment or restrict the list of predicate felonies on which felony murder may be based, which is the pertinent subject matter of Proposition 115. It did not address any other conduct which might give rise to a conviction for murder. Instead, it amended the mental state necessary for a person to be liable for murder, a distinct topic not addressed by Proposition 115's text or ballot materials. [¶] . . . [¶] Therefore, we conclude the limiting language in Proposition 115 . . . does not preclude the Legislature from amending provisions of the reenacted statute that were subject to technical restatement to ensure compliance with article IV, section 9 of the California Constitution." ( Id . at pp. 287, 288.)

In reaching each of these conclusions, the court in Gooden , supra , 42 Cal.App.5th 270 explained, "[W]e reiterate a bedrock principle underpinning the rule limiting legislative amendments to voter initiatives: '[T]he voters should get what they enacted,

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not more and not less.' [Citation.] Here, the voters who approved Proposition 7 and Proposition 115 got, and still have, precisely what they enacted—stronger sentences for persons convicted of murder and first degree felony-murder liability for deaths occurring during the commission or attempted commission of specified felony offenses. By enacting Senate Bill 1437, the Legislature has neither undermined these initiatives nor impinged upon the will of the voters who passed them." ( Id . at pp. 288-289.)

b. Lamoureux

In Lamoureux , supra , 42 Cal.App.5th 241, the court held that Senate Bill 1437 does not violate California's separation of powers doctrine because it does not encroach on the executive clemency power. According to the court in Lamoureux , "it is clear to us that section 1170.95's interference with the executive's clemency authority, if any, is merely incidental to the main legislative purpose of Senate Bill 1437. Therefore, we conclude section 1170.95 does not impermissibly encroach upon the core functions of the executive." ( Lamoureux , supra , 42 Cal.App.5th at p. 256.) The court further concluded that Senate Bill 1437 does not intrude upon the core function of the judiciary by requiring trial courts to retroactively reopen final judgments and that the Legislature acted in conformity with its institutional authority when it approved section 1170.95. ( Lamoureux , supra , 42 Cal.App.5th at p. 264.)

The court in Lamoureux , supra , 42 Cal.App.5th 241, also rejected the contention that section 1170.95 violated the victims' bill of rights. The court first explained that section 1170.95 did

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not violate victims' right to a speedy trial and a prompt and final resolution of the case. "It would be anomalous and untenable for us to conclude, as the People impliedly suggest, that the voters intended to categorically foreclose the creation of any new postjudgment proceedings not in existence at the time [the bill of rights] was approved simply because the voters granted crime victims a right to a 'prompt and final conclusion' of criminal cases. (Cal. Const., art. I, § 28, subd. (b)(9).)" ( Lamoureux , supra , 42 Cal.App.5th at p. 265.)

The court in Lamoureux , supra , 42 Cal.App.5th 241 next held that section 1170.95 does not violate the rights of victims, their families, or the public to have their safety considered before any parole or postjudgment release decision is made. "During resentencing, the court may weigh the same sentencing factors it considers when it initially sentences a defendant, including whether the defendant presents 'a serious danger to society' and '[a]ny other factors [that] reasonably relate to the defendant or the circumstances under which the crime was committed.' (Cal. Rules of Court, rule 4.421(b)(1), (c).) At minimum, the trial court's ability to consider these factors during resentencing ensures the safety of the victim, the victim's family, and the general public are 'considered,' as required by [the bill of rights]. (Cal. Const., art. I, § 28, subd. (b)(16).)" ( Lamoureux , supra , 42 Cal.App.5th at p. 266.)

Lastly, the court in Lamoureux , supra , 42 Cal.App.5th 241 concluded that section 1170.95 does not conflict with either the voters' findings or declarations or the uncodified initiative provisions, explaining that "the findings and declarations in subdivision (a) [of the bill of rights] 'represent only a general statement of a problem identified by [the] Legislature, and the

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goal the Legislature hoped to achieve,' not an independent source of enforceable rights" and that "'the statements of purpose and intent in [an] "uncodified section . . . properly may be utilized as an aid in construing" [an initiative], but they "do not confer power, determine rights, or enlarge the scope of [the] measure."'" ( Id . at p. 266.)

2. Analysis

We find the constitutional analysis in Gooden , supra , 42 Cal.App.5th 220 and Lamoureux , supra , 42 Cal.App.5th 241 persuasive, and therefore conclude that Senate Bill 1437's amendments to the felony murder rule and its elimination of the natural and probable consequences doctrine as it relates to murder do not unconstitutionally amend Proposition 7 or 115. We further conclude that section 1170.95 does not impermissibly encroach upon the separate powers of either the executive or the judiciary or otherwise violate the victims' bill of rights, including victims' right to a speedy trial. Because the People have conceded the merits of each petition, defendants are entitled to have their murder convictions vacated and to be resentenced pursuant to the provisions of section 1170.95.

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The orders denying defendants' respective petitions for resentencing are reversed. The matters are remanded with instructions to vacate defendants' murder convictions and to conduct further proceedings pursuant to section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.