California Cases April 08, 2020: People v. Montes

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.BA183970)

APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Reversed and remanded with instructions.

Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General for Plaintiff and Respondent.

Appellant Alexander Montes challenges a postconviction order denying his petition for resentencing under Penal Code section 1170.95. The trial court denied the petition on the ground that legislatively enacted section 1170.95 was unconstitutional because it amended two voter-enacted referenda, Propositions 7 and 115.

Montes contends the trial court erred in holding section 1170.95 unconstitutional on this basis. Respondent Attorney General agrees, and further agrees that the trial court correctly rejected other arguments that section 1170.95 is unconstitutional. We agree with the parties and reverse the order.

In 2000, Montes was convicted of second degree murder and sentenced to 15 years to life in prison. It was stipulated at his trial that he was not the shooter. We affirmed his conviction in 2001. ( People v . Montes (Apr. 24, 2001, B140693) [nonpub. opn.])

In 2018, the Legislature enacted Senate Bill 1437 (S.B. 1437) "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) S.B. 1437 significantly modified the law relating to accomplice liability for murder by amending sections 188 and 189. ( People v . Verdugo (2020) 44 Cal.App.5th 320, 325.) It also

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added section 1170.95, which permits "[a] person convicted of felony murder or murder under a natural and probable consequences theory" to "file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts" if he or she could not be convicted of murder under the revised versions of sections 188 and 189. (§ 1170.95, subd. (a).) The statutory changes took effect January 1, 2019.

Montes filed a section 1170.95 petition on January 4, 2019. The trial court appointed counsel for Montes on January 28, 2019.

On April 29, 2019, the Los Angeles County District Attorney (the People) filed an opposition to the petition on constitutional grounds. Asrelevant here, the People argued that S.B. 1437's revision of sections 188 and 189 and addition of section 1170.95 illegally amended two voter-enacted initiatives. The first, Proposition 7, was "a voter initiative that increased the punishment for first degree murder from a term of life imprisonment with parole eligibility after seven years to a term of 25 years to life, and increased the punishment for second degree murder from a term of five, six, or seven years to a term of

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15 years to life" by adding section 190 to the Penal Code. ( People v . Lamoureux (2019) 42 Cal.App.5th 241, 250 ( Lamoureux ).)The second, Proposition 115, was "a voter initiative that augmented the list of predicate offenses giving rise to first degree felony-murder liability." ( Lamoureux , supra , 42 Cal.App.5th at p. 250.) The People argued that the Legislature could not amend Proposition 7 under any circumstances, and could only amend Proposition 115 by a two-thirds majority that was lacking here.

The People attached to their opposition two letters in whichlegislative counsel opined that S.B. 1437 improperly amended Proposition 7. The letters, dated March 12, 2018 and June 20, 2018, both opined that S.B 1437 "constitutes an amendment of Proposition 7 because it changes the scope and definition of murder on which the voters relied when enacting Section 190 by initiative in 1978. As such, the proposed measure requires the approval of the electors to become effective, in compliance with Section 10 of Article II of the California Constitution." The People also attached five trial court orders holding that S.B. 1437 and section 1170.95 were unconstitutional.

Montes filed a "reply to constitutional opposition" on May 2, 2019. He argued that neither S.B. 1437 nor section 1170.95 was unconstitutional and asked the court to issue an order to show cause why his petition should not be granted. As is relevant here, he argued that S.B. 1437 did not amend either Proposition 7 or Proposition 115. Montes characterized Proposition 7 as a "penalty provision" that was not amended by S.B. 1437's changes to "the scope of culpability." He also argued that S.B. 1437 "addressed a related but distinct area of law" from Proposition 115, which "did not address a non-killer's culpability for murder." Montes

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attached to his filing a brief the People filed in another case in which they conceded the petitioner was entitled to relief under section 1170.95. He also attached three trial court orders holding that S.B. 1437 and section 1170.95 were constitutional.

The trial court heard Montes's petition on May 28, 2019. The court denied the petition on the ground that section 1170.95 was an unconstitutional amendment to both Propositions 7 and 115.It explained, "I carefully considered the constitutional issues raised by the prosecution and it is my belief that 1170.95 violates the California Constitution on the grounds . . . that were suggested by the Legislative Analyst at the time that the bill was considered and that is that it constitutes a change in referendums that were passed without being properly either changed by voters or changed by the two-thirds requirement of the Legislature as to one of the provisions. And I'm not finding that it violates any of the other grounds that were asserted by the prosecution in their brief. My decision is based exclusively on the ground that I stated. . . .It's an illegal amendment to the referendum."

Montes timely appealed.

Montes and the Attorney General both contend S.B. 1437 and section 1170.95 are not unconstitutional amendments to Propositions 7 and 115. We agree after conducting a de novo review. ( People v . Luo (2017) 16 Cal.App.5th 663, 680.)

"Under Article II, section 10 of the California Constitution, a statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless

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the initiative statute provides otherwise. (Cal. Const., art. II, § 10, subd. (c).)" ( Lamoureux , supra , 42 Cal.App.5th at p. 261.) "The purpose of this limitation is to '"'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.'"' [Citation.]" ( Ibid .) Proposition 7 did not authorize the Legislature to amend it. ( People v . Cooper (2002) 27 Cal.4th 38, 41 44 ( Cooper ).) "The Legislature may amend Proposition 115's statutory provisions, but only by a two-thirds majority vote in each house." ( People v . Superior Court ( Pearson ) (2010) 48 Cal.4th 564, 567 ( Pearson ).) S.B. 1437 passed the Assembly with less than a two-thirds majority. ( People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270, 277 ( Gooden ).)

"An amendment is a legislative act designed to change an existing initiative statute by adding or taking away from it some particular provision." ( Cooper , supra , 27 Cal.4th at p. 44.) "But this 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 purposes of Article II, section 10 of the California Constitution. ( Pearson , supra , 48 Cal.4th at p. 571.) "'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."' [Citation.]" ( Ibid .) To determine if a legislative act amends a voter initiative, "we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( Ibid .)

Division One of the Fourth District Court of Appeal recently answered this question in the negative as to both Propositions 7 and 115 in Gooden , supra , 42 Cal.5th 270, and

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reaffirmed its conclusion in Lamoureux , supra , 42 Cal.App.5th 241. We find theanalysis in Gooden persuasive and follow it here.

We start, as our colleagues did, by ascertaining the voters' intent in enacting the initiatives. ( Gooden , supra , 42 Cal.App.5th at p. 280.) We do that by examining the language of the initiative, giving the words their ordinary meanings and construing the language in the context of the initiative as a whole. ( Pearson , supra , 42 Cal.App.5th at p. 571.) "[W]e presume the voters intended the meaning apparent from that language, and we may not add to the [initiative] or rewrite it to conform to some assumed intent not apparent from that language." ( Ibid .)

As relevant here, Proposition 7 provided, "Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life . . . . [¶] Every person guilty of murder in the second degree shall suffer confinement in the state prison for a term of 15 years to life." (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978), § 2; see also Gooden , supra , 42 Cal.App.5th at pp. 280-281.) It also "expanded the special circumstances which can subject a person convicted of first degree murder to a punishment of death or LWOP." ( Gooden , supra , 42 Cal.App.5th at p. 281 (citing Prop. 7, §§ 5-6.) We agree with Gooden 's conclusion that the voters enacted Proposition 7 "to enhance punishments for persons who have been convicted of murder." ( Ibid .) So do Montes, who argues that "Proposition 7 addressed sentencing," and the Attorney General, who contends Proposition 7 was intended "to set minimum penalties for a conviction of murder".

S.B. 1437 did not address punishment. ( Gooden , supra , 42 Cal.App.5th at p. 282.) "Instead, it amended the mental state

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requirements for murder, which 'is perhaps as close as one might hope to come to a core criminal offense "element."' [Citation.]" ( Ibid .) Elements of a criminal offense and punishment for a criminal offense "plainly are not synonymous." ( Id . at p. 281.) To the contrary, it is clear that a "penalty provision is not an element of an offense under California law." ( People v . Anderson (2009) 47 Cal.4th 92, 119.) "Thus, Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative." ( Gooden , supra , 42 Cal.App.5th at p. 282.) It does not prohibit what Proposition 7 authorizes,nor authorize what Proposition 7 prohibits. S.B. 1437 accordingly does not amend Proposition 7.

Proposition 115 "added kidnapping, train wrecking, and certain sex offenses to the list of predicate felonies giving rise to first degree felony-murder liability." ( Gooden , supra , 42 Cal.App.5th at p. 287 (citing Prop. 115, § 9).) Proposition 115 thus "altered the circumstances under which a person may be liable for murder." ( Ibid .) S.B. 1437 is more closely related to Proposition 115 than to Proposition 7. Nevertheless, "that alone does not render the Legislature's actions invalid." ( Id . at p. 287 (citing People v . Kelly (2010) 47 Cal.4th 1008, 1025).) The determinative question remains whether S.B. 1437 prohibits what Proposition 115 authorizes, or authorizes what it prohibits. We agree with Montes, the Attorney General, and Gooden that it does not. "Senate Bill 1437 did not augment 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

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Proposition 115's text or ballot materials." ( Ibid .)

Montes and the Attorney Generalagree the trial court correctly rejected the People's other arguments for finding S.B. 1437 unconstitutional."Under long-established principles, a statute, once enacted, is presumed to be constitutional until it has been judicially determined to be unconstitutional." ( Lockyer v . City and County of San Francisco (2004) 33 Cal.4th 1055, 1119.) No such determination was made on the three other grounds here, and "'we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.'" ( Santa Clara County Local Transportation Authority v . Guardino (1995) 11 Cal.4th 220, 230.) We accordingly do not address the other arguments regarding the constitutionality of S.B. 1437.

The order of the trial court is reversed. The matter is remanded for further proceedings regarding Montes's section 1170.95 petition.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.