California Cases June 16, 2020: People v. Wheatley

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB903235)

OPINION

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Reversed.

William Paul Melcher, 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 R. Richards for the People of the State of California as Amicus Curiae on behalf of Defendant and Appellant.

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

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Defendant and appellant Ryan Christopher Wheatley appeals from a trial court's order denying defendant's petition for relief under Penal Code section 1170.95. Defendant contends the trial court erred by concluding that Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95 were unconstitutional. The San Bernardino County District Attorney's Office (District Attorney) has filed a response contending that the trial court's order should stand. The Attorney General has filed an amicus curiae brief conceding that the trial court erred. We agree with defendant and the Attorney General. We therefore reverse the order with instructions on remand to vacate the trial court's order denying defendant's petition and conduct further proceedings pursuant to section 1170.95.

A. PROCEDURAL HISTORY

On October 6, 2011, an amended information charged defendant with murder under section 187, subdivision (a) (count 1), and gross vehicular manslaughter while intoxicated under section 191.5, subdivision (a) (count 2). The information also alleged that defendant had suffered several prior convictions for violations of the Vehicle Code. On October 12, 2011, a jury found defendant guilty on both counts. As to count 2, the jury found the special circumstances true that defendant had suffered three prior Vehicle Code violations.

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The trial court sentenced defendant to an indeterminate term of 15 years to life on count 1. The court also sentenced defendant to an indeterminate term of 15 years to life on count 2, stayed under section 654.

Defendant appealed. On August 9, 2013, in an unpublished opinion in case No. E054975, we affirmed the convictions with instructions to the trial court to strike the sentencing provisions declaring the vehicle involved as a nuisance, designating defendant a habitual traffic offender, and requiring defendant to use an ignition interlock device as a condition of obtaining a restricted license. On November 13, 2013, the California Supreme Court denied review (case No. S213554).

On February 5, 2019, defendant filed a petition for relief under section 1170.95. On April 5, 2019, the District Attorney filed a motion to strike defendant's petition on the basis that SB 1437 was unconstitutional. On June 6, 2019, the trial court granted the prosecution's motion and issued a written ruling summarily denying the petition.

On June 19, 2019, defendant filed a timely notice of appeal. On October 28, 2019, defendant filed a request for judicial notice. On November 14, 2019, we granted defendant's request and took judicial notice of our unpublished opinion in case No. E054975, a copy of which was attached to defendant's request. On December 26, 2019, the District Attorney filed a request for judicial notice of ballot statements for Proposition 7 (1978) and Proposition 115 (1990); copies of Senate Bill No. 1437 and Assembly Bill 3104; votes for Senate Bill 1437; a legislative counsel bureau opinion letter for Assembly Bill 3104; and this court's opinion in the underlying criminal case. On December 27, 2019, we gave defendant 15 days to file an opposition to the request for judicial notice.

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On January 2, 2020, defendant filed his response. In his response, defendant did not oppose this court taking "judicial notice of the items set forth by respondent, but as to this court's previous opinion in appellant's direct appeal, the opinion may not be used to establish the facts of the crime." On January 6, 2020, we reserved ruling on the request for judicial notice for consideration with the appeal. We hereby grant the District Attorney's request for judicial notice.

After the parties filed their briefs on appeal, on January 16, 2020, the Attorney General filed an amicus curiae brief in support of defendant.

B. FACTUAL HISTORY

1. "The Fatal Accident.

"On August 2, 2009, around 2:30 p.m., defendant was driving a Ford F-150 pickup truck north on Orange Street between Redlands and Highland. He made hand gestures to a nearby car indicating that he wanted to race. He started alternately braking, then revving his engine and speeding up again. Meanwhile, he was swerving — repeatedly drifting to the right, then correcting himself.

"Defendant drifted to the right one last time, so that his two right-side tires were on the dirt shoulder. The truck hit a water stand pipe, about three feet tall, which was located in the shoulder. The truck continued to go relatively straight for nearly 250 feet. It then 'jerked' or 'overcorrected' to the left, going back onto the roadway and over the double yellow line, into oncoming traffic. It collided with a Nissan Sentra driven by Sara

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Cisneros. She died at the scene. [¶] Onlookers saw defendant jump into the back seat of the truck."

2. "The Police Investigation.

"When police officers arrived, two or three minutes later, they found defendant sitting in the rear seat on the passenger side. Brandon Sisson, the owner of the truck, was sitting in the front passenger seat. [¶] Defendant told the police that a man named 'Brad' had been driving, and after the collision, Brad ran away. Sisson, however, pointed to defendant, which the police took to mean that defendant had been driving.

"In or near the truck, there were two vodka bottles, several Powerade bottles, and a cranberry drink bottle. Defendant's eyes were watery and bloodshot. Samples of defendant's blood taken at 4:02, 4:40, and 5:01 p.m. showed blood alcohol levels of 0.15, 0.15, and 0.11, respectively. [¶] Defendant's blood also tested positive for hydrocodone, at a level of 31 nanograms per milliliter; a 'therapeutic' level would be 2 to 24 nanograms per milliliter.1 In defendant's home, the police found a bottle of prescription hydrocodone. [¶] A sample of Sisson's blood, taken at 4:25 p.m., had a blood alcohol level of 0.28.

"Before the accident, the truck had been in good working order. After the accident, the left front tire and the right rear tire were both flat. The right rear tire had a slice-shaped puncture in the sidewall. According to an officer with training and experience in postaccident mechanical inspections, the left front tire went flat as a result of the collision. The right rear tire went flat because the forces to which it was subjected

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tore it away from the rim; the puncture then occurred because the tire was caught between the rim and the roadway."

3. "Defendant's Alcohol Consumption.

"Before the accident, around 1:00 p.m., defendant and Sisson went to the Rotten Oak, a bar in Highland. Sisson drove them there in his truck. On the way, defendant mixed together some vodka, cranberry juice, and Powerade. When they got to the Rotten Oak, they brought in the mixture in Powerade bottles and drank it. They also ordered and drank a pitcher of beer. [¶] When they left, defendant drove the truck because Sisson had had too much to drink. Sisson fell asleep until he was awakened by the accident."

4. "Defendant's Prior Convictions.

"On July 21, 2004, defendant suffered his first drunk-driving-related conviction. He pleaded guilty. He was placed on probation and ordered to complete a program for first offenders. He took and completed a program offered by the Jackson-Bibby Awareness Group. It included education on the possibility that drinking and driving could result in '[p]eople getting killed[.]'

"On May 11, 2007, defendant suffered his second drunk-driving-related conviction. Again, he pleaded guilty. The plea form included a warning that, if he continued to drive under the influence of alcohol or drugs, and if, as a result, someone was killed, he could be charged with murder.

"On May 18, 2007, defendant suffered his third drunk-driving-related conviction. Once again, he pleaded guilty, and once again, the plea form included a warning about his potential exposure to a murder charge.

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"On July 16 and August 20, 2007, defendant attended programs sponsored by Mothers Against Drunk Driving (MADD). Both programs included warnings about his potential exposure to a murder charge.

"When the accident occurred, defendant was still on probation, and his license was revoked or suspended."

5. "Defendant's Testimony.

"According to defendant, he poured the Powerade into two bottles, one for Sisson and one for himself. Defendant's bottle did not have any vodka. However, he did 'tr[y]' Sisson's drink 'a couple [of] times.' [¶] After leaving the Rotten Oak, defendant insisted on driving, because Sisson was practically passing out, whereas defendant did not feel impaired. [¶] The gestures that another driver took as a challenge to race actually meant that the other driver should go in front of defendant, because the road was about to narrow from two lanes down to one. [¶] As the truck went over a dip, it made a loud noise and started pulling to the right. Defendant assumed that a tire had blown out. As he started to pull over onto the shoulder, the truck hit the pipe. After that, defendant lost control. [¶] After the accident, defendant got into the back seat because the air bag was in his way. He admitted lying to the police about 'Brad' because he was 'scared,' though he claimed he did not think he had done anything wrong. [¶] On the day of the accident, however, when defendant was first interviewed, he said he swerved to the right because he was startled by another car that sped by him. He did not say that he heard a loud noise or had a blowout. [¶] In a second interview later that day, defendant said he swerved 'for no known reason.' Once again, he did not say that he heard a loud noise or had a

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blowout. [¶] In a third interview that same day, defendant said the truck went to the right because he was looking at Sisson and talking to him. He specifically denied having a blowout."

6. "Expert Testimony for the Defense.

"Karl Blaufuss, a civil engineer with some experience in accident reconstruction, testified as an expert for the defense. [¶] Blaufuss believed, based on the puncture, and based on the fact that one witness heard a loud noise, that the right rear tire blew out. This would have caused the truck to drift to the right. [¶] After the truck hit the pipe, it rotated clockwise and started skidding sideways. The brakes would have been ineffective. Defendant then overcorrected, steering all the way to left, to avoid the embankment. [¶] In Blaufuss's opinion, once defendant overcorrected, there was a 95 percent chance that the accident would have occurred, no matter who was driving."

Defendant's sole contention on appeal is that the trial court erred by finding Senate Bill No. 1437 to be unconstitutional.

A. PROCEDURAL BACKGROUND

In this case, when the trial court granted the District Attorney's motion to strike defendant's petition based on the ground that Senate Bill 1437 was unconstitutional, the court issued a written ruling. The court stated that the "initial enactment of the current version of the comprehensive murder statue was by Proposition 7." The court determined that Proposition 7, the Briggs Initiative, "enumerated a discreet list of actions for which an individual could be convicted of first degree murder, including felony murder. Thus,

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by enacting Proposition 7, the voters contemplated that felony murder, and the accomplice liability for felony murder would be punishable according to the increased penalty enacted by the initiative."

The trial court went on to hold that it "was clearly the voters' intent when passing the Briggs Initiative to substantially increase the punishment for person's [ sic ] convicted of first and second degree murder. The Briggs Initiative also did not authorize the Legislature to amend the provisions without voter approval. Again, by changing the definition of malice and amending the scope of the Felony[-]Murder Rule, the legislative amendment clearly and completely contradicts the intention of the electorate in approving the Briggs Initiative."

In examining Senate Bill 1437, the trial court determined that by amending section 188, it "eliminates many decades of judicially recognized legal constructions that impute the malice necessary for murder onto a person, based upon his or her participation in a crime. The law also appears to amend Penal Code section 189 to limit those who can be prosecuted for first degree felony murder." The trial court went on to conclude that the Legislature "cannot amend or redefine murder in order to avoid the penalties that Proposition 7 set for the crime. And, since Proposition 7 'broadened the class of persons subject to the most severe penalties know[n] to our criminal law' by changing the minimum term for both 1st and 2nd degree murder, eliminating the requirement that both principals and accomplices be personally present during the commission of the act or acts causing death; and deleting the requirement that a felony murder be willful, deliberate

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and premediated." The court then held Senate Bill 1437 to be an unconstitutional amendment to Proposition 7.

Moreover, the trial court found that Proposition 115 directly amended section 189 and because "SB 1437 substantially changes to whom Penal Code section 189 may apply, by requiring additional elements be proven for accomplices that were not included in Proposition 115's version of Penal Code section 189, SB 1437 also violates the amendment provisions of Proposition 115, which calls for two-thirds majority in each house or by a vote of the people." The court stated that "[h]ad the voters wanted the additional requirements for accomplices to apply to Penal Code section 189, they would have codified it as such."

Therefore, the trial court concluded that Senate Bill 1437 was an unconstitutional amendment of Propositions 7 and 115, and granted the District Attorney's motion to strike defendant's petition.

B. LEGAL BACKGROUND

"[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. SB 1437 also permits, through new Penal Code 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 SB 1437's changes to the definition of the crime." ( People v . Verdugo (2020) 44 Cal.App.5th 320, 323, fn. omitted, rev. granted Mar. 18, 2020, S260493.)

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In a pair of recent decisions from the Fourth Appellate District, Division One, People v . Lamoureux (2019) 42 Cal.App.5th 241 ( Lamoureux ) 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.

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 1437—which did not address the issue of punishments for persons convicted of murder—cannot be considered an amendment to Proposition 7." ( Id . at p. 286.)

The court in Gooden , supra , 42 Cal.App.5th 27 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

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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, fns. omitted.)

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

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." ( Id . 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. ( Id . at p. 264.)

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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 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. Cost., art. I., § 28, subd. (b)(9).)" ( Lamoureux , 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 , at p. 266.)

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Furthermore, 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 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." ' " ( Lamoureux , at p. 266.)

We find the constitutional analysis in Gooden , supra , 42 Cal.App.5th 270 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. In the Amicus Curiae brief, the Attorney General agrees with defendant that "the superior court erred when it held S.B. 1437 unconstitutional." And, "[b]ecause S.B. 1437 is constitutional, the judgment of the trial court should be reversed, and the case remanded for further proceedings."

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The order summarily denying defendant's section 1170.95 petition is reversed. The matter is remanded to the trial court for further proceedings under section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

MENETREZ
J.