California Cases June 18, 2020: People v. Fava

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI800549)

OPINION

APPEAL from the Superior Court of San Bernardino County. Antoine F. Raphael, Judge. Reversed with directions.

Richard L. Schwartberg, 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, 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.

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) prospectively amended Penal Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony-murder rule and the crime of murder under the natural and probable consequences doctrine to persons who are the actual killer, who act with the intent to kill, or who are a major participant in a felony and act with reckless indifference for human life. In addition, Senate Bill No. 1437 enacted section 1170.95 (Stats. 2018, ch. 1015, § 4), which permits persons previously convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine, but who could not be so convicted under the amendments enacted by Senate Bill No. 1437, to petition the superior court to vacate their murder convictions and to resentence them on any remaining counts.

In 2011, a jury convicted defendant and appellant Troy Dante Fava of murder and the target offenses of grand theft and residential burglary, and found true the allegations that a principal was armed with a firearm during the commission of the offenses. The trial court found defendant had suffered two prior prison terms and sentenced him to an indeterminate term of 25 years to life, plus a consecutive determinate term of 10 years. Two months after Senate Bill No. 1437 went into effect, defendant petitioned to have his murder conviction vacated. The People, as represented by the District Attorney for San

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Bernardino County, opposed the petition and requested the superior court strike it. The superior court agreed with the district attorney that Senate Bill No. 1437 is unconstitutional and entered an order striking defendant's petition. Defendant appealed, contending Senate Bill No. 1437 is constitutional. The People, as represented by the California Attorney General, filed an amicus curiae brief in support of defendant.

Our colleagues in Divisions One ( People v . Lamoureux (2019) 42 Cal.App.5th 241 ( Lamoureux ) & People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270 ( Gooden )) and Three ( People v . Cruz (2020) 46 Cal.App.5th 740 ( Cruz ) & People v . Solis (2020) 46 Cal.App.5th 762 ( Solis )) of this appellate district, and our colleagues in the Second Appellate District ( People v . Bucio (2020) 48 Cal.App.5th 300 ( Bucio ); see People v . Smith (2020) 49 Cal.App.5th 85 [agreeing with result in Lamoureux , Gooden , Cruz , Solis & Bucio ]) have already rejected identical challenges to the ones made by the district attorney in this case and concluded Senate Bill No. 1437 is constitutional. And in People v . Johns (E072412, June 8, 2020) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 498] ( Johns ), this court expressly agreed with the reasoning of those decisions and held Senate Bill No. 1437 is constitutional. Therefore, we reverse the order striking defendant's petition, and remand for further proceedings on the petition.

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As stated in our opinion from defendant's direct appeal, "the evidence showed that Adam Atencio was shot and killed on March 7, 2008, at the apartment of Lucas Buckingham in Hesperia, after defendant and several of his cohorts burglarized the apartment and beat up Buckingham. Buckingham's Glock handgun was stolen from the apartment. It was unclear whether defendant or one of his cohorts shot and killed Atencio with a second handgun, a Sig Sauer." ( People v . Fava (May 8, 2013, E055407) [nonpub. opn.], review den. July 17, 2013, S211386, fn. omitted.)

The People charged defendant with murder (§ 187, subd. (a)), first degree residential robbery (§ 211), and first degree residential burglary (§ 459). They further alleged that a principal in each of the offenses was armed with a firearm (former § 12022, subd. (a)(1)) and that defendant had suffered two prior prison terms (§ 667.5, subd. (b)). A jury convicted defendant of first degree murder, grand theft (as a lesser included offense of robbery), and first degree burglary, and found true the firearm allegations. The trial court found true defendant had suffered two prior prison terms. The court sentenced defendant to 25 years to life for murder and a consecutive determinate term of 10 years for the remaining offenses and sentencing allegations. On direct appeal, this court affirmed the judgment. ( People v . Fava , supra , E055407.)

On March 18, 2019, defendant filed a petition in the superior court requesting the court vacate his sentence pursuant to section 1170.95. Defendant declared he had been convicted of first or second degree murder under the felony-murder rule or the natural

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and probable consequences doctrine but, as of January 1, 2019, he could no longer be convicted of murder because of the amendments to sections 188 and 189. He requested the court appoint counsel for him.

The district attorney moved to strike defendant's petition, arguing Senate Bill No. 1437 was unconstitutional because: (1) Penal Code sections 188 and 189 were previously amended by Propositions 7 and 115, and Senate Bill No. 1437 did not satisfy the mandates of those voter initiatives for future legislative amendments; (2) Senate Bill No. 1437 is in direct conflict with Marsy's Law, the Victim's Bill of Rights Act of 2008 adopted by the voters as part of Proposition 9, by undermining the finality of criminal cases; and (3) Senate Bill No. 1437 encroaches upon a core function of the courts and violates the separation of powers doctrine by mandating vacatur of final judgments.

The trial court appointed counsel for defendant, who filed an opposition to the motion to strike, arguing Senate Bill No. 1437 is constitutional.

At the hearing on the petition, defendant's counsel and the district attorney submitted on the moving papers without additional argument. The district attorney indicated that, if the court were to conclude Senate Bill No. 1437 was constitutional, he would present evidence that defendant "was a major participant who acted with reckless disregard for life, and is therefore not eligible for resentencing." The court took the matter under submission and, subsequently, granted the district attorney's motion to dismiss defendant's petition for resentencing.

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In its written findings, the trial court concluded the amendments to Penal Code sections 188 and 189 made by Senate Bill No. 1437 were unconstitutional because the voters had previously increased the punishment for first and second degree murder with Proposition 7 and "did not authorize the Legislature to amend the provisions [of that initiative] without voter approval"; and "the Legislature cannot amend or redefine murder in order to avoid the penalties that Proposition 7 set for the crime." In addition, the court concluded Senate Bill No. 1437 invalidly amended the felony-murder rule, as previously amended by the voters in Proposition 115, without a two-thirds majority vote in each house of the Legislature as mandated by Proposition 115. The trial court did not address the district attorney's claim that Senate Bill No. 1437 violated Marsy's Law or his separation of powers argument, and the court did not address defendant's eligibility for resentencing under Penal Code section 1170.95 as a factual matter.

Defendant timely appealed.

The court in Lamoureux , supra , 42 Cal.App.5th 241, summarized the effect of Senate Bill No. 1437 as follows:

"In 2018, . . . the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature's findings and declarations states the law was 'necessary to amend 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

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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.' ( Id ., § 1, subd. (f).) It further provides that the legislation was needed 'to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.' ( Id ., § 1, subd. (e).)

"Under the felony-murder rule as it existed prior to Senate Bill 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state. ( People v . Chun (2009) 45 Cal.4th 1172, 1182 . . .) '"The felony-murder rule impute[d] the requisite malice for a murder conviction to those who commit[ted] a homicide during the perpetration of a felony inherently dangerous to human life."' ( Id . at p. 1184.) 'The purpose of the felony-murder rule [was] to deter those who commit[ted] the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.' ( People v . Cavitt (2004) 33 Cal.4th 187, 197 . . .)

"Independent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and

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probable consequence of the target offense. ( People v . Chiu (2014) 59 Cal.4th 155, 161-162 . . .) '"Because the nontarget offense [was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime."' ( People v . Flores (2016) 2 Cal.App.5th 855, 867 . . .)

"Senate Bill 1437 restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, § 3.) Section 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense 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. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .'

"Senate Bill 1437 also 'added a crucial limitation' to section 188, the statutory provision that defines malice for purposes of murder. ( People v . Lopez (2019) 38 Cal.App.5th 1087, 1099 . . . , review granted Nov. 13, 2019, S258175 . . .) As amended, section 188 provides in pertinent part as follows: 'Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' ( Id ., subd. (a)(3).)

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"Finally, Senate Bill 1437 added section 1170.95 to the Penal Code. Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.' ( Id ., subd. (a).)

"If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) At the resentencing hearing, the parties may rely on the record of conviction or offer new or additional evidence, and the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. ( Id ., subd. (d)(3).)

"If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner resentenced 'on any remaining counts in the same manner as if the petitioner had not been [ sic ] previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) If the petitioner

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is found eligible for relief, but 'murder was charged generically . . . and the target offense was not charged,' the petitioner's murder conviction must be 'redesignated as the target offense or underlying felony for resentencing purposes.' ( Id ., subd. (e).)" ( Lamoureux , supra , 42 Cal.App.5th at pp. 247-249, fn. omitted.)

In Johns , this court addressed the same claims made by the district attorney in this case and soundly rejected them. We agreed with our colleagues in other courts and rejected the contention that Senate Bill No. 1437 unlawfully undermined the voters' intent when they passed Proposition 7. "Proposition 7 set the penalties for murder, not the elements of the crime of murder. (See Prop. 7, §§ 1-12.) S.B. 1437 left the punishment for murder unchanged, but altered the elements required to convict an accused of murder. (Pen. Code, §§ 188, subd. (a)(3) & 189, subd. (e).) Specifically, S.B. 1437 changed the minimum intent required to sustain a murder conviction by amending Penal Code sections 188 and 189. That change did not amend the statutory provisions enacted by the voters in passing Proposition 7. [Citation.] S.B. 1437 simply did not address any matter Proposition 7 specifically authorizes or prohibits. Since the Legislature isn't barred from passing laws in areas related to but distinct from those addressed in an initiative, Proposition 7 was no bar to their passing S.B. 1437." ( Johns , supra , ___ Cal.App.5th ___ [2020 Cal.App. Lexis 498, at pp. *18-19]; accord, Bucio , supra , 48 Cal.App.5th at pp. 309-311; Cruz , supra , 46 Cal.App.5th at pp. 754-759; Solis , supra , 46 Cal.App.5th at p. 779; Gooden , supra , 42 Cal.App.5th at pp. 284-286; Lamoureux , supra , 42 Cal.App.5th at p. 251.)

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Likewise, we agreed with Gooden and rejected the argument that Senate Bill No. 1437 was an invalid amendment because it did not comply with 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.'" ( Johns , supra , ___ Cal.App.5th ___ [2020 Cal.App. Lexis 498, at p. *23], quoting Gooden , supra , 42 Cal.App.5th at p. 287.) Therefore, the Legislature was not required to enact Senate Bill No. 1437 by a two-thirds majority of both houses. ( Gooden , at pp. 287-288; accord, Lamoureux , supra , 42 Cal.App.5th at p. 251; Solis , supra , 46 Cal.App.5th at pp. 780-784; Cruz , supra , 46 Cal.App.5th at pp. 759-761; Bucio , supra , 48 Cal.App.5th at pp. 311-312.)

Finally, although the trial court in this case did not address the district attorney's arguments that Senate Bill No. 1437 violates the sanctity of finality as enshrined in Marsy's Law and violates the separation of powers doctrine, this court agreed with our colleagues in Lamoureux and rejected those same claims. ( Johns , supra , ___ Cal.App.5th ___ [2020 Cal.App. Lexis 498, at pp. *25-*32]; Lamoureux , supra , 42 Cal.App.5th at pp. 260-266; accord, Bucio , supra , 48 Cal.App.5th at pp. 312-314.)

Because the trial court did not address whether defendant was eligible for relief under section 1170.95 as a factual matter, we remand for the trial court to make such a determination in the first instance.

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The order striking defendant's petition is reversed. On remand, the trial court shall conduct a hearing to determine whether defendant is entitled to relief under section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.

We concur:

MILLER
J.

MENETREZ
J.