California Cases April 09, 2020: People v. Salazar

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1200952)

APPEAL from an order of the Superior Court of San Bernardino County, Annemarie G. Pace, Judge. Reversed.

Siri Shetty, 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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Six years ago, a jury convicted defendant John David Salazar of two counts of first degree murder. On appeal, we reversed the first degree murder convictions and remanded the matter to the trial court with directions that the People be permitted to accept reductions of the convictions to second degree murder or, alternatively, retry Salazar for first degree murder under direct aiding and abetting principles. ( People v . Legaspi (Mar. 17, 2016, No. D068710) [nonpub. opn.] ( Salazar I ).) On remand, the People accepted reductions of the convictions to second degree murder.

After the passage of Senate Bill No. 1437 (Stats. 2018, ch. 1015), Salazar filed a petition to vacate his second degree murder convictions and obtain resentencing under Penal Code section 1170.95. The trial court struck the petition after concluding that Senate Bill No. 1437 unconstitutionally amended two voter initiatives: Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)), which increased the punishments for persons convicted of murder, and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), which augmented the list of predicate offenses giving rise to first degree felony-murder liability. Salazar 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 Senate Bill No. 1437 unconstitutional

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under the same logic adopted by the trial court. They urge us to affirm the order, in the alternative, on grounds that section 1170.95—the resentencing provision of Senate Bill No. 1437—violates the separation of powers doctrine and 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)).

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

Further, in Salazar I , we ordered the trial court to correct a sentencing error relating to three counts of attempted murder of which Salazar was also convicted. ( Salazar I , supra .) As we explained, the trial court erred when it sentenced Salazar to seven years to life on each of these three convictions. ( Ibid .) Instead, it should have sentenced him to terms of life with the possibility of parole for each conviction. ( Ibid .) Salazar informs us—and the People do not contest—that the court failed to correct the sentencing error as we instructed. Therefore, we again order the trial court to correct the sentencing error as set forth in Salazar I .

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Salazar was a member of the Varrio Redlands gang. In 2011, he drove a fellow gang member to an apartment where men from a different gang were congregated. The passenger exited the vehicle and fired shots at the men, killing two of them. The shooter returned to Salazar's vehicle and Salazar drove the shooter from the crime scene.

Salazar was charged with two counts of first degree murder (§ 187, subd. (a); counts 1 and 2), three counts of attempted first degree murder (§§ 664, 187, subd. (a); counts 3, 4 and 5), and street terrorism (§ 186.22, subd. (a); count 7). He was prosecuted both as a direct aider and abettor of the shootings and an aider and abettor of the target offense of assault under the natural and probable consequences doctrine. The jury convicted Salazar on all counts, found true firearm allegations for each count (§ 12022.53, subds. (b)-(d)), and found true gang enhancement allegations for counts 1 through 5 (§ 186.22, subd. (b)(1)(C)). Further, Salazar admitted one prison prior. (§ 667.5, subd. (b).) The trial court sentenced Salazar to an indeterminate term of 197 years to life in prison.

Salazar appealed the judgment and we reversed the first degree murder convictions based on People v . Chiu (2014) 59 Cal.4th 155, which was decided after trial. ( Salazar I , supra .) In Chiu , the Supreme Court concluded an aider and abettor may be convicted of second degree murder, but not first degree premeditated murder, under the natural and probable consequences doctrine. ( Chiu , at pp. 158, 166.) We could not

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determine beyond a reasonable doubt that the jury convicted Salazar of first degree murder based on a permissible direct aiding and abetting theory, rather than an impermissible natural and probable consequences theory. ( Salazar I , supra .) Therefore, we reversed Salazar's first degree murder convictions and remanded the matter to the trial court with directions that the People be permitted to accept reductions of the convictions to second degree murder or retry Salazar for first degree murder under direct aiding and abetting principles. ( Ibid .) On remand, the People accepted reductions of the convictions to second degree murder.

In Salazar I , we also concluded the trial court committed a sentencing error. ( Salazar I , supra .) The court sentenced Salazar to a term of seven years to life for each of the three attempted premeditated murder convictions. ( Ibid .) However, we determined it should have sentenced Salazar to a term of life with the possibility of parole for each conviction. ( Ibid .) Therefore, we instructed the court to modify the sentence, amend the abstract of judgment accordingly, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. ( Ibid .) On remand, the trial court did not modify the sentence for Salazar's attempted murder convictions as instructed.

In 2019, Salazar, proceeding in propria persona, filed a petition in the trial court to vacate his second degree murder convictions and obtain resentencing under section 1170.95. On the standard petition form Salazar filed, he checked boxes next to

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preprinted statements averring he was not the actual killer, could not be convicted of murder under Senate Bill No. 1437, and was eligible for relief under section 1170.95.

The People filed an informal opposition brief arguing Salazar 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 Salazar's petition on grounds that Senate Bill No. 1437 was unconstitutional. They argued, among other things, that Senate Bill No. 1437 unconstitutionally amended Proposition 7 and Proposition 115, in violation of article II, section 10, subdivision (c) of the state Constitution.

The trial court granted the People's motion to strike Salazar's petition. It reasoned Senate Bill No. 1437 " 'takes away from' Proposition 7 in a significant way" because it "eliminates the natural and probable consequences doctrine for all intents and purposes and prohibits conviction under the felony murder rule as it was understood when Proposition 7 was enacted—both of which were authorized by Proposition 7." The court further found that Senate Bill No. 1437 amended Proposition 115 because "the voters of Proposition 115 were voting on the assumption that 'murder' meant 'murder' as it was defined when they passed the initiative .... The redefinition of that word ... takes away from what the voters enacted." Because the purportedly improper amendments provided sufficient grounds for the court to strike Salazar's petition, the court did not address the remainder of the People's constitutional challenges to Senate Bill No. 1437.

Salazar appealed the order striking his resentencing petition. The Attorney General permitted the Office of the District Attorney of San Bernardino County to

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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.

The People challenge the constitutionality of Senate Bill No. 1437, including its resentencing provision, on four grounds. First, they argue Senate Bill No. 1437 unconstitutionally amended Proposition 7 because it limited the scope of persons who could be subject to the aggravated punishments approved by voters. Second, they claim Senate Bill No. 1437 impermissibly amended Proposition 115 because it narrowed the range of persons who could be found guilty of first degree felony murder for killings that occurred during the predicate felonies added to section 189 by Proposition 115. Third, they assert section 1170.95 intrudes upon a core function of the judiciary, in violation of the separation of powers doctrine. Finally, they contend section 1170.95 violates various provisions of Marsy's Law.

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

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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 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. ( Id . 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.

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( 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 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 Marsy's Law. We explained that Marsy's Law established a victim's "right to a 'prompt and final conclusion' to postjudgment proceedings," but that right did not categorically foreclose postjudgment proceedings such as the resentencing procedure set forth in section 1170.95. ( Lamoureux , supra , 42 Cal.App.5th at pp. 264, 265.) "On the contrary, [Marsy's Law] expressly contemplated the availability of ... postjudgment proceedings ...." ( Id . at pp. 264-265.) Thus, there was no irreconcilable conflict between the resentencing procedure and the right of crime victims to a prompt and final conclusion to postjudgment proceedings. ( Ibid .) Further, we reasoned that Senate Bill No. 1437 did not deprive crime victims of their right to have their safety, the safety of their families, and the general public considered before any parole or postjudgment release decision is made. ( Id . at p. 265.) Assuming without deciding the disposition of a section 1170.95 petition is a postjudgment release decision, we concluded the trial court may consider these factors when resentencing successful petitioners. ( Id . at p. 266.)

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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 Salazar's petition to vacate his murder convictions and obtain 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.

In Salazar I , we determined the trial court erred in sentencing Salazar to a term of seven years to life for each of his attempted murder convictions (counts 3, 4, and 5), and ordered the court to modify the sentence for each such conviction to a term of life with the possibility of parole. ( Salazar I , supra .) The court—apparently through inadvertence—failed to correct the error on remand. The trial court is hereby ordered to correct the sentence for counts 3, 4, and 5. As discussed in Salazar I , the correct sentence for each attempted murder conviction is a term of life with the possibility of parole.

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Salazar also contends the trial court committed a sentencing error following remand in Salazar I because the court failed to recalculate his custody credits. Neither Salazar nor the People identify the number of custody credits to which Salazar is entitled. On remand, the trial court shall determine Salazar's custody credits as necessary to comply with section 2900.1. (See § 2900.1 ["Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts."]; People v . Buckhalter (2001) 26 Cal.4th 20, 37 ["[T]he trial court, having modified defendant's sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time."].)

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The order denying Salazar's section 1170.95 petition is reversed.

The trial court is directed to modify Salazar's sentence to reflect terms of life with the possibility of parole for counts 3, 4, and 5, determine Salazar's custody credits as necessary to comply with Penal Code section 2900.1, amend the abstract of judgment accordingly, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.