California Cases June 16, 2020: People v. Sherwood

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FBV3726)

OPINION

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Reversed with directions.

Amy M. Karlin, Federal Public Defender, Lauren Collins, Susel Carillo-Orellana, Deputy Federal Public Defenders, for Defendant and Appellant.

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

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

Previously, an accused could be convicted of murder under the felony-murder rule or the natural and probable consequences doctrine of aider and abettor liability, even if the accused didn't kill or intend to kill the victim. The Legislature, exercising its authority to define substantive offenses, enacted Senate Bill 1437, which amended Penal Code sections 188 and 189 to require more. (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (S.B. 1437).) Felony murder and aiding and abetting a murder remain crimes, but to be convicted of murder it isn't enough to participate in a felony that results in a death. Now, a person so accused must have killed the victim, aided the person who did kill the victim with the intent to kill them, or acted as a major participant in the felony with reckless indifference to human life.

S.B. 1437 also created a new petitioning procedure that allows offenders previously convicted under the felony-murder rule or the natural and probable consequences doctrine to have their murder convictions vacated if they couldn't be convicted of murder under the new law. (Pen. Code, § 1170.95, unlabeled statutory citations refer to this code.)

Appellant Robin Lee Sherwood claims to be such an offender. He entered an open guilty plea to first degree felony murder in a case where it's undisputed he was not present when one of his three accomplices shot the victim in a robbery. ( People v . Sherwood (Dec. 7, 2007, E041930) 2007 WL 4285290.) After S.B. 1437 passed, he filed

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a petition to vacate his murder conviction under Penal Code section 1170.95. The San Bernardino District Attorney's Office opposed the petition and moved to strike it, arguing S.B. 1437 is invalid as an unauthorized amendment of two voter-approved ballot initiatives, Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7 (Prop. 7)) and Proposition 115 (Ballot Pamp., Prim. Elec. (June 5, 1990) text of Prop. 115 (Prop. 115)). The trial court agreed, found S.B. 1437 unconstitutionally infringed on the prerogatives of the voters, and struck Sherwood's petition. Sherwood appeals, seeking reversal and remand for the trial court to review his petition on the merits.

We agree with Sherwood that S.B. 1437 is constitutional and he is entitled to have the trial court consider his petition. Proposition 7 addressed the punishment appropriate for murder, not the elements of the offense, and Proposition 115 added predicates for applying the felony-murder rule, which S.B. 1437 left intact. We therefore conclude S.B. 1437 addressed related but distinct areas of the law which the initiatives left in the power of the Legislature to amend. ( People v . Kelly (2010) 47 Cal.4th 1008 ( Kelly ).) The new statutory provisions therefore did not amend either ballot initiative. We also conclude retroactive application of S.B. 1437 through the petitioning process doesn't violate the separation of powers doctrine or the Victims' Bill of Rights of 2008 (Marsy's Law), as the district attorney argues.

We therefore reverse the judgment and remand the case for further proceedings called for by section 1170.95.

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A. Statutory Background

1. Proposition 7

Proposition 7, known as the Death Penalty Act, increased the penalties for offenders convicted of first and second degree murder. The voters approved those changes on November 7, 1978.

Before Proposition 7, Penal Code section 190 punished offenders convicted of first degree murder by "death, confinement in state prison for life without possibility of parole, or confinement in state prison for life" and second degree murder "by imprisonment in the state prison for five, six, or seven years." (Prop. 7, supra , § 1, p. 33.) As the 1978 Ballot Pamphlet pointed out, at that time, a person who received the minimum sentence for first degree murder would be eligible for parole after serving only seven years, and, due to good behavior credits, a person sentenced to a mid-term six years for second degree murder could be eligible for parole after serving only four years. ( Id ., Legis. Analyst, analysis of Prop. 7, p. 32.)

The initiative increased the penalties for both first and second degree murder. It amended Penal Code section 190 to increase the minimum sentence for first degree

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murder to a term of 25 years to life. (Prop. 7, supra , analysis of Prop. 7, p. 32 & text of Prop. 7, § 1, p. 33.) It also increased the sentence for second degree murder in all cases to 15 years to life. ( Ibid .; see also People v . Cooper (2002) 27 Cal.4th 38, 42.)

Proposition 7 didn't include a provision authorizing the Legislature to amend its provisions without voter approval. (See Prop. 7, supra , §§ 1-12, pp. 33, 41-46; People v . Cooper , supra , 27 Cal.4th at p. 44.)

2. Proposition 115

Twelve years later, the voters passed Proposition 115, known as the Crime Victims Justice Reform Act, which amended the California Constitution to make several changes to procedures and rights applicable in criminal cases.

Relevant to this case, the initiative amended Penal Code sections 189 and 190.2. Previously, Penal Code section 189 defined as first degree murder any killing "committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288 [lewd and lascivious conduct]." The initiative expanded its definition of first degree murder by adding killings that occurred during the commission of kidnapping, train wrecking, and various additional sex offenses. (Prop. 115, supra , § 9, p. 66.) The initiative amended Penal Code section 190.2 to require a sentence of death or life without the possibility of parole in two situations where the offender isn't the actual killer—when they aid or support a killer and act with the intent to kill and when they are a major participant in certain crimes (like robbery) where a death occurs, and act with reckless indifference to human life. (Prop. 115, § 10, p. 66.)

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Proposition 115 permitted the Legislature to amend its terms by a two-thirds vote in each house of the Legislature. (Prop. 115, supra , § 30, p. 69.)

3. S . B . 1437

Generally, malice is an essential element of murder. (§ 187.) Malice may be either express or implied. It is express "when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." ( Id . at subd. (a)(2).) Implied malice has "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' . . . The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.'" ( People v . Chun (2009) 45 Cal.4th 1172, 1181.)

Before S.B. 1437, the felony-murder rule and the natural and probable consequences doctrine were exceptions to the actual malice requirement. The felony-murder rule made "a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." ( People v . Chun , supra , 45 Cal.4th at p. 1182.) First degree felony murder was "a killing during the course of a felony specified in [Penal Code] section 189, such as rape, burglary, or robbery." ( Ibid .) Second degree felony murder was "an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies

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enumerated in [Penal Code] section 189." ( Ibid .) The natural and probable consequences doctrine made "a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." ( People v . Prettyman (1996) 14 Cal.4th 248, 254, 262-263.) Because a nontarget murder "is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the [murder]." ( People v . Chiu (2014) 59 Cal.4th 155, 164.) For that reason, our Supreme Court held "punishment for second degree murder," rather than first degree murder, "is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine." ( Id . at p. 166.)

In 2018, the Legislature adopted, and the Governor signed, S.B. 1437. In an uncodified section of the law, the Legislature declared it found the "[r]eform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual." (S.B. 1437, supra , at § 1.) The new law was designed "to ensure that murder liability is not imposed on a person who is not the

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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." ( Ibid .)

In effect, S.B. 1437 is a change to the substantive offense of first and second degree murder, removing the exceptions that had allowed such convictions despite the absence of malice. Effective January 1, 2019, S.B. 1437 made that change by amending Penal Code sections 188 and 189 to restrict the scope of first degree felony murder and eliminate second degree murder based on the natural and probable consequences doctrine. (S.B. 1437, supra , §§ 2-3.) As amended, Penal Code section 188 directs malice may not "be imputed to a person based solely on his or her participation in a crime." (Pen. Code, § 188, subd. (a)(3).) Instead, "to be convicted of murder, a principal in a crime shall act with malice," except for cases applying the narrowed felony murder rule in new subdivision (e) of Penal Code section 189, under which "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer[;] [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree[;] [¶] [or] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] section 190.2." (Pen. Code, § 189, subd. (e), italics added.)

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The Legislature also added section 1170.95 to the Penal Code. That provision creates a procedure for offenders previously convicted of felony murder or under a natural and probable consequences theory to obtain the benefits of these changes retrospectively. Such convicts may petition for relief in the court where they were convicted. If they make a prima facie showing they're entitled to have their prior convictions vacated, then they're entitled to receive "a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced." (§ 1170.95, subds. (c), (d)(1).) "If petitioner is entitled to relief pursuant to this section, murder was charged generically, and the target offense was not charged, the petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes." ( Id . at subd. (e).)

B. Sherwood's Petition

Sherwood suffered a murder conviction based on his aiding and abetting a robbery. He and three other men drove to the home of another man to take money they believed he kept in a safe. Sherwood drove to the house and dropped one of the other men off. He then either parked across the street to act as a lookout for police or drove away after pointing out the house. The other three men went to the victim's door. When a

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scuffle ensued, one of the three shot the victim, who died of his wounds. ( People v . Sherwood , supra , 2007 WL 4285290, *1-2.) After the prosecution had presented several witnesses, Sherwood changed his plea on the first degree murder charge to guilty. The trial court sentenced Sherwood to a total term of eight years plus life without the possibility of parole. ( Ibid .)

On February 25, 2019, Sherwood filed a petition in the trial court seeking to take advantage of the petitioning procedure created by S.B. 1437. (Pen. Code, § 1170.95.) The People filed a motion to strike the petition for resentencing on the ground that S.B. 1437 is unconstitutional because it amends voter-approved initiatives without following the required procedures for doing so.

C. The Trial Court's Ruling

On May 31, 2019, the trial court granted the People's motion to strike the petition on the ground the amendment was unconstitutional as an unauthorized amendment of both Proposition 7 and Proposition 115. The court also held it didn't have "sufficient facts" to determine whether Sherwood had made out a prima facie case for relief under Penal Code section 1170.95.

Sherwood filed a timely notice of appeal.

The California Constitution protects the power of voters to act through the initiative process by limiting the Legislature's power to amend voter-approved statutes.

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(Cal. Const., art. II, § 10, subd. (c); Kelly , supra , 47 Cal.4th at p. 1025.) The Legislature may amend or repeal an initiative statute only with approval from the electorate, which approval may come in the form of a direction contained in the initiative itself. "The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors' approval." (Cal. Const., art. II, § 10, subd. (c).)

Proposition 7 didn't include a provision allowing the Legislature to amend its provisions. Section 30 of Proposition 115 permits such amendments without voter approval, but only if approved by a two-thirds vote in each house of the Legislature. In this case, the question isn't whether the Legislature acted in a way that would comply with the requirements for amending the initiative statutes—all agree they didn't—but the analytically prior question whether S.B. 1437 amended those provisions in the first place. The trial court concluded S.B. 1437 did amend them, invalidating the enactment, and the district attorney defends that decision on appeal. Sherwood and the Attorney General argue S.B. 1437 did not amend the statutory provisions enacted through Propositions 7 and 115, and the trial court should have enforced the new law because "[t]he Legislature remains free to address '"a related but distinct area'" . . . or a matter that an initiative measure 'does not specifically authorize or prohibit.'" ( Kelly , supra , 47 Cal.4th at pp. 1025-1026.)

A statute amends an initiative when it is "designed to change an existing initiative statute by adding or taking from it some particular provision." ( People v . Cooper , supra ,

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27 Cal.4th at p. 44.) This doesn't mean "any legislation that concerns the same subject matter as an initiative, or even augments an initiative's provisions, is necessarily an amendment for these purposes." ( People v . Superior Court ( Pearson ) (2010) 48 Cal.4th 564, 571.) Our Supreme Court has directed that "[i]n deciding whether [a] particular provision amends [an initiative statute], we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( Ibid .) As the Court explained, we should not invalidate a law enacted by the Legislature if it doesn't impinge on "what voters contemplated"—"[t]he voters should get what they enacted, not more and not less." ( Ibid .)

The question is one of statutory interpretation. "When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." ( People v . Superior Court ( Pearson ), supra , 48 Cal.4th at p. 571.)

Several of our sister courts have addressed these arguments and held S.B. 1437 to be constitutional against the same arguments the People raise here. ( People v . Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 280-284 ( Gooden ); People v . Lamoureux

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(2019) 42 Cal.App.5th 241, 250-251 ( Lamoureux ); People v . Bucio (2020) 48 Cal.App.5th 300 ; People v . Solis (2020) 46 Cal.App.5th 762; People v . Cruz (2020) 46 Cal.App.5th 740; People v . Smith (May 15, 2020, B298642) 2020 WL 2537482.)

As the Gooden court explained, S.B. 1437 didn't amend Proposition 7 because it didn't "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 did not address punishment at all." ( Gooden , supra , 42 Cal.App.5th 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.) The court therefore concluded Proposition 7 concerned different subjects and S.B. 1437 didn't amend Proposition 7. ( Gooden , at p. 282.)

The Gooden court also concluded S.B. 1437 didn't amend Proposition 115. Though the measures "altered the circumstances under which a person may be liable for murder" and therefore addressed related matters, S.B. 1437 didn't "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 , supra , 42 Cal.App.5th at p. 287.) The court

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concluded S.B. 1437 didn't address a matter that Proposition 115 authorized or prohibited. ( Gooden , at p. 287.)

In a companion case, the Lamoureux court concluded Penal Code section 1170.95 doesn't violate the separation of powers doctrine or Marsy's Law, which protects victim's rights. ( Lamoureux , supra , 42 Cal.App.5th at p. 260.) On separation of powers, the court held, S.B. 1437 "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." ( Lamoureux , at p. 260) The court also determined Penal Code 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, the court concluded Penal Code section 1170.95 doesn't "intrude upon a core function of the judiciary" in violation of the separation of powers doctrine. ( Lamoureux , at p. 264.) On victim's rights, the Lamoureux court held Marsy's law didn't foreclose post-judgment proceedings such as the resentencing procedure set forth in Penal Code section 1170.95. ( Lamoureux , 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 post-judgment proceedings. ( Ibid .)

We have latitude to depart from the decisions of our sister Courts of Appeal, though we generally exercise our discretion only when supported by good reason. ( Lucent Technologies , Inc . v . Board of Equalization (2015) 241 Cal.App.4th 19, 35.) We

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see no good reason for doing so here. The People argue Gooden and Lamoureux were wrongly decided because they allow indirect amendment of Propositions 7 and 115 where direct amendment is forbidden. They rely for that conclusion on In re Oluwa (1989) 207 Cal.App.3d 439, but that case concluded the Legislature could not amend the provisions enacted by Proposition 7 by changing separate statutory provisions affecting the same topic. As the Solis court explained, "Proposition 7 specifically stated that then-existing custody credit statutes applied to the fixed portion of a life term for murder. [Citation.] At the time, the Penal Code permitted prisoners to reduce their sentences 'by a maximum one-third for good behavior and participation in prison programs.' [Citation.] The Legislature later enacted sections 2933 and 2934, which allowed prisoners to earn a reduction of up to one-half their sentences for work, training, and education programs." ( People v . Solis (2020) 46 Cal.App.5th 762, 778.) Thus, the amendments at issue in Oluwa were improper because they changed custody credits set by the initiative. That's not what the Legislature did here; it left Proposition 7's punishments intact but changed the definition of the underlying crime. The People complain that distinction is problematic because it doesn't contain a limiting principle, freeing the Legislature "to eliminate the prohibited act half of an offense entirely so long as it left the punishment half untouched." We find this argument unpersuasive. In any event, though it may be the

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Legislature would overstep its authority by eliminating the crime of murder while retaining statutory provisions respecting its punishment, that isn't the situation this case presents.

The trial court also concluded it didn't have "sufficient facts" to determine whether Sherwood had made a prima facie case under Penal Code section 1170.95 or whether he is entitled to relief. However, we conclude Sherwood presented all the facts necessary to make a hearing necessary. ( People v . Drayton (2020) 47 Cal.App.5th 965, 981 [petitioner made a prima facie showing of eligibility by filing "a petition stating 1) he was charged with murder under a theory of felony murder; 2) he was convicted of first degree murder; and 3) he could not be convicted of first degree murder under the post-January 1, 2019 definition of murder because he was not a major participant in the underlying felony who acted with reckless indifference to human life"].) Our prior decision in his direct appeal on its own establishes the first and second elements, as well as the fact that Sherwood wasn't present when the victim was killed. He also provided the trial court with key excerpts of the trial transcript, including witness testimony and his own statements to police that he wasn't present at the shooting as well as the prosecutor's opening statement conceding as much. These exhibits were not only more than sufficient to establish eligibility triggering the requirement to hold an evidentiary hearing, but may be sufficient to establish his entitlement to relief. ( Ibid .) Notably, the People don't argue

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to the contrary. We will therefore remand the case to the trial court for a hearing on the merits.

We reverse the judgment of the trial court and remand for further proceedings under section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:

CODRINGTON
Acting P. J.

MENETREZ
J.