California Cases April 09, 2020: People v. Sullivan

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB802136-3)

APPEAL from an order of the Superior Court of San Bernardino County, Kyle S. Brodie, Judge. Reversed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Nelson R. Richards and Tamar Pachter, Deputy Attorneys General, for Amicus Curiae on behalf of Defendant and Appellant.

Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent.

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Ten years ago, a jury convicted defendant Raymond Sullivan of second degree murder. After the passage of Senate Bill No. 1437 (Stats. 2018, ch. 1015), Sullivan filed a petition to vacate his murder conviction and obtain resentencing under Penal Code section 1170.95. The trial court struck the petition after concluding that section 1170.95 unconstitutionally deprives crime victims of the rights afforded them by the Victims' Bill of Rights Act of 2008, also known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008)). Sullivan appeals the order striking his petition.

The People, represented by the Office of the San Bernardino County District Attorney, urge us to affirm the order and declare section 1170.95 unconstitutional under the same logic adopted by the trial court. Alternatively, they urge us to affirm the order on grounds that: (1) Senate Bill No. 1437 unconstitutionally amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)); (2) Senate Bill No. 1437 unconstitutionally amended Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)); and (3) section 1170.95 violates the separation of powers doctrine.

In a recent pair of companion cases, we rejected each of the People's arguments and found no constitutional infirmity with Senate Bill No. 1437. ( People v . Superior Court (Gooden) (2019) 42 Cal.App.5th 270 ( Gooden ); People v . Lamoureux (2019) 42

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Cal.App.5th 241 ( Lamoureux ).) For the reasons discussed in those opinions, we reach the same conclusions here. Therefore, we reverse the order striking Sullivan's petition.

In 2008, members and associates of the West Side Verdugo criminal street gang approached and surrounded Robert Banuelos, who had challenged one of the gang's associates to a fight. Sullivan was among the persons who confronted Banuelos. One of Sullivan's companions pulled out a knife, stabbed Banuelos, and killed him.

Sullivan and two codefendants were each charged by information with one count of murder (§ 187, subd. (a)) and one count of street terrorism (§ 186.22, subd. (a)). The information alleged Sullivan and his codefendants committed the murder for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).)

A jury found Sullivan guilty of second degree murder and street terrorism and found true the gang enhancement allegation attached to the murder count. The trial court sentenced Sullivan to an aggregate term of 15 years to life in state prison. Sullivan appealed and we affirmed the judgment as modified. ( People v . Uruiza (May 23, 2012, No. D059014) [nonpub. opn.].)

In 2018, Sullivan, proceeding in propria persona, filed a petition in the trial court to vacate his murder conviction and obtain resentencing under section 1170.95, the resentencing provision of Senate Bill No. 1437. In a concurrently-submitted declaration,

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he averred he was not the person who stabbed Banuelos, he was unaware his codefendants had weapons at the time of the murder, and he believed he was entitled to vacatur of his murder conviction and resentencing under section 1170.95.

The People filed an informal opposition brief arguing Sullivan failed to make a prima facie showing that he was entitled to relief under section 1170.95. Together with their opposition brief, the People filed a motion to strike Sullivan's petition on grounds that Senate Bill No. 1437 was unconstitutional. They argued, among other things, that section 1170.95 violated the constitutional rights of crime victims guaranteed by Marsy's Law.

The trial court granted the People's motion to strike Sullivan's petition. It reasoned section 1170.95 was irreconcilable with a provision in Marsy's Law guaranteeing crime victims a right "to finality in their criminal cases." (Cal. Const., art. I, § 28, subd. (a)(6).) Because the purported conflict between section 1170.95 and Marsy's Law provided sufficient grounds for the court to deny Sullivan's petition, the court declined to address the remainder of the People's constitutional challenges to Senate Bill No. 1437.

Sullivan appealed the order striking his resentencing petition. The Attorney General permitted the Office of the District Attorney of San Bernardino County to represent the People's interests in this appeal and, for its part, filed an amicus curiae brief defending the constitutionality of Senate Bill No. 1437.

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The People challenge the constitutionality of Senate Bill No. 1437, including its resentencing provision, on four grounds. First, they argue Senate Bill No. 1437 impermissibly amended Proposition 7, 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 15 years to life. (Prop. 7, §§ 1-2.) Second, they claim Senate Bill No. 1437 impermissibly amended Proposition 115, a voter initiative that augmented the list of predicate offenses giving rise to first degree felony-murder liability. (Prop. 115, § 9.) Third, they assert section 1170.95 intrudes upon a core function of the judiciary, in violation of the separation of powers doctrine. Fourth, they contend section 1170.95 violates Marsy's Law and its guarantee of finality for the victims of crime.

We recently rejected all four of these arguments in a pair of companion cases— Gooden , supra , 42 Cal.App.5th 270, and Lamoureux , supra , 42 Cal.App.5th 241. As we explained in Gooden , Senate Bill No. 1437 did not amend Proposition 7 because it did not "address the same subject matter [as Proposition 7]. It did not prohibit what Proposition 7 authorizes by, for example, prohibiting a punishment of 25 years to life for first degree murder or 15 years to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for instance, permitting a punishment of less than 25 years for first degree murder or less than 15 years for second degree murder. In short, it

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did not address punishment at all." ( Gooden , at p. 282.) Instead, it " 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.' " ( Id . at p. 275.) Because Senate Bill No. 1437 and Proposition 7 concerned different subjects, we concluded Senate Bill No. 1437 did not amend Proposition 7. ( Gooden , at p. 282.)

In Gooden , we also concluded there was no merit to the People's contention that Senate Bill No. 1437 amended Proposition 115. We acknowledged that both measures "altered the circumstances under which a person may be liable for murder," and thus addressed related matters. ( Gooden , supra , 42 Cal.App.5th at p. 287.) However, we noted that Senate Bill No. 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." ( Gooden , at p. 287.) Because Senate Bill No. 1437 neither augmented nor restricted the list of predicate felonies giving rise to felony-murder liability, we concluded it did not address a matter that Proposition 115 authorized or prohibited. ( Gooden , at p. 287.) Therefore, it did not amend Proposition 115. ( Gooden , at p. 287.)

We rejected the People's separation of powers argument in Lamoureux . In that case, we concluded section 1170.95 does not threaten the fundamental principle underpinning the separation of powers doctrine—the protection of individual liberty. ( Lamoureux , supra , 42 Cal.App.5th at p. 260.) Rather, it "provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake

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in a criminal prosecution—the criminal defendant himself or herself." ( Ibid .) We determined section 1170.95 also contains built-in limitations that respect petitioners' original judgments of conviction and, therefore, the judiciary's role in resolving petitioners' cases. ( Lamoureux , at p. 262.) For both reasons, we concluded section 1170.95 does "not intrude upon a core function of the judiciary" in violation of the separation of powers doctrine. ( Lamoureux , at p. 264.)

Finally, in Lamoureux , we determined section 1170.95 does not violate a provision in Marsy's Law stating that crime victims are "entitled to finality in their criminal cases." (Cal. Const., art. I, § 28, subd. (a)(6).) We explained the provision referencing finality for crime victims is set forth in a section of Marsy's Law discussing voters' findings and declarations. ( Lamoureux , supra , 42 Cal.App.5th at p. 266.) It is not enumerated in the 17-part list of substantive rights (Cal. Const., art. I, § 28, subd. (b)), which are enforceable by crime victims and their representatives ( id ., subd. (c)). ( Lamoureux , at p. 264.) Given this structure, we concluded the reference to finality in the voters' findings and declarations " 'represent[ed] only ... the goal the [voters] hoped to achieve,' not an independent source of enforceable rights." ( Id . at p. 266.)

The People offer us no reason to depart from our conclusions in Gooden and Lamoureux . Nor do they present any arguments we have not already rejected in those cases. Therefore, we adhere to our decisions in Gooden and Lamoureux and conclude the trial court erred in striking Sullivan's petition to vacate his murder conviction and obtain

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resentencing under section 1170.95. We offer no opinion as to whether the trial court should issue an order to show cause or grant the relief requested in the petition.

The order is reversed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.