California Cases July 09, 2020: People v. Hill

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF077884)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions.

Allison H. Ting, 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.

Michael A. Hestrin, District Attorney, Alan D. Tate and Jesse W. Male, Deputy District Attorneys, for Plaintiff and Respondent.

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This case concerns the validity of a recent law that eliminated the natural and probable consequences doctrine as a basis of liability for murder. That law also otherwise restricts the circumstances under which someone other than the actual killer can be held liable for murder. Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which effectuated these changes, became effective on January 1, 2019, and also added a mechanism by which a person who was previously convicted of murder under a felony murder theory or a natural and probable consequences theory can petition the court to have that conviction vacated.

Angela Hill filed a petition under Penal Code section 1170.95 to vacate her second degree murder conviction, which was based on a natural and probable consequences theory. The trial court denied the petition, concluding that section 1170.95 constitutes an unconstitutional legislative amendment of Proposition 7, which was passed by voters in 1978. Hill appeals from that decision. The Riverside County District Attorney (District Attorney) attacks the constitutionality of Senate Bill 1437 on numerous grounds, including that it was an invalid attempt to amend Propositions 7 and 115, it violates the separation of powers doctrine, and it violates the rights of crime victims to finality in judgments. The Attorney General submitted an amicus brief defending the constitutionality of Senate Bill 1437.

Our colleagues in Division One of this district have considered and rejected the arguments raised in this appeal in a pair of companion decisions— People v . Superior

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Court ( Gooden ) (2019) 42 Cal.App.5th 270 ( Gooden ) and People v . Lamoureux (2019) 42 Cal.App.5th 241 ( Lamoureux ) —and concluded that Senate Bill 1437 is constitutional. Three other Courts of Appeal have reached the same conclusion. (See People v . Bucio (2020) 48 Cal.App.5th 300, 307; People v . Solis (2020) 46 Cal.App.5th 762, 769; People v . Cruz (2020) 46 Cal.App.5th 740, 747; People v . Smith (2020) 49 Cal.App.5th 85, 91; People v . Prado (2020) 49 Cal.App.5th 480, 491-492.) This court recently followed suit in People v . Johns (2020) 50 Cal.App.5th 46, 54-55, which involved a conviction based on the felony murder rule.

We agree with Hill, the Attorney General, and the foregoing cases that Senate Bill 1437 is constitutional. We therefore reverse the order of the trial court and remand the case for further proceedings called for by section 1170.95.

A jury convicted Hill of first degree murder, and she was sentenced to 25 years to life. In 2003, this court affirmed Hill's conviction as an aider and abettor based on the natural and probable consequences doctrine. In November 2015, the trial court granted Hill's petition for habeas corpus upon the parties' stipulation. Applying People v . Chiu (2014) 59 Cal.4th 155 ( Chiu ), the first degree murder conviction was reduced to second degree murder. Hill was resentenced to 15 years to life.

In January 2019, Hill petitioned to vacate the murder conviction and to be resentenced under newly enacted section 1170.95. The trial court denied the petition,

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concluding that section 1170.95 constitutes an unconstitutional legislative amendment of Proposition 7.

A. Propositions 7 and 115 and Senate Bill 1437

1. Proposition 7

Proposition 7 increased the penalties for offenders convicted of first and second degree murder. The voters approved those changes on November 7, 1978. (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978).)

Before Proposition 7, 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." (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) analysis by Legis. Analyst, at p. 33 (Prop. 7 Ballot Pamp.); Prop. 7, § 1.) As the 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 a person sentenced to the mid-term of six years for second degree murder could be eligible for parole after serving only four years because of good behavior credits. (Prop. 7 Ballot Pamp., supra , at p. 32.)

The initiative increased the penalties for both first and second degree murder. It amended section 190 to increase the minimum sentence for first degree murder to a term of 25 years to life. (Prop. 7 Ballot Pamp., supra , at pp. 32-33.) It also increased the

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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 ( Cooper ).)

Although not relevant here, other provisions of Proposition 7 addressed the imposition of the death penalty, including by expanding the list of special circumstances making an offense death-eligible and revising the law relating to mitigating or aggravating circumstances for death-eligible offenses. (Prop. 7 Ballot Pamp., supra , at p. 32.) Section 190.1 set phases for death penalty cases. Section 190.2 set the special circumstances under which a person convicted of first degree murder could be punished by death or life without the possibility of parole. Section 190.3 set the procedure for imposing the death penalty on offenders convicted of special-circumstance first degree murder. Section 190.4 set the procedure for determining whether a murder included a special circumstance. And section 190.5 made offenders younger than 18 ineligible for the death penalty. (Prop. 7, §§ 6, 8, 12.)

Proposition 7 did not include a provision authorizing the Legislature to amend its provisions without voter approval. (See Prop. 7, §§ 1-12; 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. (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990).)

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The proposal indicated the amendment was a response to "decisions and statutes [that] have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth." (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115, at pp. 33, 65-69 (Prop. 115 Ballot Pamp.).) Among its core provisions, the initiative attempted to bar the courts from construing the California Constitution as affording to criminal defendants greater rights than the United States Constitution affords. However, the California Supreme Court concluded that such a significant revision to the constitutional dispersal of government power must be passed at a constitutional convention or by initiative initially proposed by the Legislature. ( Raven v . Deukmejian (1990) 52 Cal.3d 336, 355 ( Raven ).)

The initiative also changed the rules regarding criminal discovery, prohibited postindictment preliminary hearings, established the District Attorney's right to due process and speedy criminal trials, and allowed hearsay in preliminary hearings. (Prop. 115 Ballot Pamp., supra , at pp. 33, 65-69; see also Raven , supra , 52 Cal.3d at pp. 342-346 [summarizing Prop. 115].)

As relevant to this case, the initiative amended sections 189 and 190.2. Previously, 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.

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(Prop. 115, § 9; Prop. 115 Ballot Pamp., supra , at p. 66.) The initiative amended section 190.2 to require a sentence of death or life without the possibility of parole in two situations in which the offender is not the actual killer: (1) when the offender aids or supports a killer and acts with the intent to kill; and (2) when the offender is a major participant in an enumerated felony (such as robbery) in which a death occurs, and the offender acts with reckless indifference to human life. (Prop. 115, § 10; Prop. 115 Ballot Pamp., supra , at p. 66.)

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

3. Senate Bill 1437

Generally, malice is an essential element of the crime of murder. (§ 187.) Malice may be either express or implied. It is express "when there is manifested a deliberate intention unlawfully to 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." (§ 188, 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." [Citation.] 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 ( Chun ).)

Before Senate Bill 1437, the felony-murder rule and the natural and probable consequences doctrine were exceptions to the actual malice requirement. The felony

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murder rule made "a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." ( Chun , supra , 45 Cal.4th at p. 1182.) First degree felony murder was "a killing during the course of a felony specified in 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 enumerated in 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]." ( Chiu , supra , 59 Cal.4th at p. 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.)

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In 2018, the Legislature adopted, and the Governor signed, Senate Bill 1437. (Stats. 2018, ch. 1015.) In an uncodified section of the law, the Legislature declared that 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." ( Id ., § 1, subd. (e).) The new law was designed "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 disregard to human life." ( Id ., § 1, subd. (f).)

Senate Bill 1437 narrowed the scope of liability for first and second degree murder by removing the exceptions that had allowed convictions for those offenses in the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that change by amending 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. (Stats. 2018, ch. 1015, §§ 2-3.) As amended, section 188 directs that malice may not "be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Instead, "to be convicted of murder, a principal in a crime shall act with malice aforethought" ( ibid .), except for cases applying the narrowed felony-murder rule in new subdivision (e) of 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

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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 Section 190.2." (§ 189, subd. (e), italics added.)

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 in which they were convicted. If the petitioner makes a prima facie showing of entitlement to having his or her prior conviction vacated, the petitioner is 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. (d)(1), (c).) "If the 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." (§ 1170.95, subd. (e).)

B. Legal Framework for Amending Voter Initiatives

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); People v . Kelly (2010) 47 Cal.4th 1008, 1025 ( Kelly ).) 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 did not 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. (Prop. 115, § 30.) In the present case, the question is not whether the Legislature acted in a way that would comply with the requirements for amending the initiative statutes—all agree that the Legislature did not. Instead, the relevant inquiry is whether Senate Bill 1437 amended those provisions in the first place.

The trial court concluded that Senate Bill 1437 amended Proposition 7 and was therefore invalid. The District Attorney defends that decision on appeal. Hill and the Attorney General argue that Senate Bill 1437 did not amend the statutory provisions enacted through Propositions 7 and 115 and that the trial court should have enforced the new law because "[t]he Legislature remains free to address a "'related but distinct area"' [citations] 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." ( Cooper , supra , 27

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Cal.4th at p. 44.) This does not mean that "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 ( Pearson ).) Our Supreme Court has explained 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 stated, we should not invalidate a law enacted by the Legislature if it doesn't impinge on "what the 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." ( Pearson , supra , 48 Cal.4th at p. 571.)

In Gooden , supra , 42 Cal.App.5th 270, our colleagues in Division One of the Fourth District comprehensively considered the issues raised in this appeal concerning Propositions 7 and 115. The court applied the Pearson test and decided that Senate Bill 1437 did not amend Proposition 7, which "the electorate intended . . . to increase the

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punishments, or consequences, for persons who have been convicted of murder." ( Gooden , at p. 282.) The court concluded that Senate Bill 1437 "did not address the same subject matter. 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 , at p. 282.)

Gooden also concluded that Senate Bill 1437 did not amend Proposition 115, which added offenses that could be predicates for applying the felony murder rule. ( Gooden , supra , 42 Cal.App.5th at p. 287.) As the court pointed out, 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. . . . 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." ( Gooden , at p. 287.)

The same court reached the same conclusions in Lamoureux , supra , 42 Cal.App.5th at pages 250-252, and addressed several additional arguments proposing that the section 1170.95 petitioning provision was unconstitutional. The District Attorney argued there, as here, that allowing people already convicted of murder to petition to have their convictions vacated violates separation of powers principles by "usurp[ing] the executive's clemency power . . . because it 'legally erases' petitioner's murder convictions and the penalties attached thereto" and by "impair[ing] a core function of the

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judiciary because it provides for the retroactive reopening of final judgments." The District Attorney also argued that Senate Bill 1437 violates victims' rights to finality of judgments and safety, as protected in the Victims' Bill of Rights Act of 2008: Marsy's Law (Prop. 9, as amended by voters, Gen. Elec. (Nov. 4, 2008) (Marsy's Law)). Lamoureux rejected those challenges too, concluding that the Legislature has the power to reopen final judgments in criminal cases for ameliorative purposes and that doing so does not tread on the role of the judiciary or the rights protected under Marsy's Law. ( Lamoureux , at pp. 255, 263-266.)

C. Senate Bill 1437 Did Not Amend Proposition 7

Proposition 7 set the penalties for murder, not the elements of the crime of murder. (See Prop. 7, §§ 1-12.) Senate Bill 1437 left the punishment for murder unchanged but altered the elements of murder and the scope of vicarious liability for murder. (§§ 188, subd. (a)(3), 189, subd. (e).) Only the latter change is relevant here—Hill was convicted of second degree murder on a natural and probable consequences theory, but Senate Bill 1437 eliminated natural and probable consequences liability for murder. That modification of vicarious liability for murder did not affect the punishment for murder, so it did not amend the statutory provisions enacted by the voters in passing Proposition 7. ( People v . Banks (2015) 61 Cal.4th 788, 801 ["'the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty'"].) Senate Bill 1437 did not address any matter Proposition 7 specifically authorizes or prohibits. Because the Legislature is not barred from passing laws in areas related to but distinct

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from those addressed in an initiative, Proposition 7 did not bar passage of Senate Bill 1437. ( Kelly , supra , 47 Cal.4th at pp. 1025-1026.)

The Proposition 7 ballot materials confirm the point. The initiative's primary focus was implementing the death penalty. (Prop. 7 Ballot Pamp., supra , at p. 34 [calling Proposition 7 "the nation's toughest, most effective death penalty law"].) Supporters invoked criminals who killed intentionally—specifically Charles Manson and the Zodiac Killer—to justify the change in the law. ( Ibid .) Neither the felony murder rule nor the natural and probable consequences doctrine factored into their arguments. ( Id . at pp. 32-35.) Supporters raised mens rea only to assure voters that an accused who was not the actual killer could not receive a sentence of death or life without parole absent intent to aid in the commission of the murder. ( Id . at p. 35; Prop. 7, § 6.) Senate Bill 1437 does not change that punishment.

Nor does section 1170.95 amend the statutory provisions enacted by Proposition 7. Section 1170.95 creates a procedure for vacating a murder conviction if the defendant did not personally kill anyone, act with the intent to kill, or participate in a felony with reckless indifference to human life. (§ 1170.95, subd. (d)(2).) The Legislature's concern was not that murderers are, or had been, sentenced too harshly; rather, it was that those who do not meet the mens rea requirements set forth in sections 188 and 189 should not be, or should not have been, convicted of murder, regardless of the specifics of the punishment. (See Stats. 2018, ch. 1015, § 1, subd. (e) [discussing "culpability of the individual"].) We therefore conclude that section 1170.95 does not amend Proposition 7.

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The District Attorney argues that Proposition 7 incorporated by reference the elements of first and second degree murder as defined at the time the voters enacted it. "The effect of the substantive amendments to [sections 188 and 189] is to reduce the total number of individuals eligible for punishment for first or second degree murder by eliminating long standing judicial constructions in existence when Proposition 7 was passed and by redefining who can be liable for first degree murder under the felony murder rule." "When the voters passed Proposition 7, they specifically intended to increase the penalty for defendants convicted of either first or second-degree murder as it was then defined."

As Gooden points out, whether a statutory reference incorporates a provision as it existed when the referring statute was enacted depends on whether the reference is specific or general. ( Gooden , supra , 42 Cal.App.5th at p. 282.) When "the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time." ( Palermo v . Stockton Theatres , Inc . (1948) 32 Cal.2d 53, 59; see also People v . Hernandez (2003) 30 Cal.4th 835, 865 [Because the statute setting the punishment for conspiracy to commit murder "refers generally to the punishment prescribed for murder in the first degree, it incorporates whatever punishment the law prescribed for first degree murder when the conspiracy was committed"], overruled on other grounds in People v . Riccardi (2012) 54 Cal.4th 758, 815-821.) So here, where Proposition 7 referred generally to murder in the first degree and murder in the second

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degree, the initiative incorporated changes to the definition of those crimes that occur from time to time, rather than incorporating the definition of murder in 1978 and freezing it in time. ( Gooden , supra , 42 Cal.App.5th at pp. 282-283.)

In sum, as the Gooden court held, "Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative." ( Gooden , supra , 42 Cal.App.5th at p. 282.) "The Legislature is free to enact such legislation without voter approval." ( Ibid .) We conclude that the trial court erred ruling to the contrary.

D. Senate Bill 1437 Did Not Amend Proposition 115

Although Proposition 115, unlike Proposition 7, amended the definition of murder, we nevertheless conclude that Senate Bill 1437 did not amend Proposition 115. As we discussed above, the key portions of Proposition 115 at issue are those that added kidnapping, train wrecking, sodomy, oral copulation, and forcible sexual penetration to section 189's list of predicate felonies for first degree murder. (Prop. 115, § 9.) Because Senate Bill 1437 also changed the circumstances under which an accused may be convicted of murder, the two enactments do address related subject matter. However, that does not end the analysis. The question "we must ask ourselves is whether Senate Bill 1437 addresses a matter that the initiative specifically authorizes or prohibits." ( Gooden , supra , 42 Cal.App.5th at p. 287.)

Gooden concluded that it does not, and we agree. "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

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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." ( Gooden , supra , 42 Cal.App.5th at p. 287, fn. omitted.)

It does not matter that Proposition 115 included the entire text of section 189, including the unchanged provisions defining the offense. The California Constitution required the inclusion of the unchanged language. (Cal. Const., art. IV, § 9; County of San Diego v . Commission on State Mandates (2018) 6 Cal.5th 196, 206 ( County of San Diego ) ["a statute must be reenacted in full as amended if any part of it is amended"].) Technical reenactment of this sort does not prevent the Legislature from amending portions of a reenacted section that are not "integral to accomplishing the electorate's goals in enacting the initiative" unless there are "other indicia . . . that voters reasonably intended to limit the Legislature's ability to amend that part of the statute." ( County of San Diego , supra , at p. 214.) "When technical reenactments are required under article IV, section 9 of the Constitution—yet involve no substantive change in a given statutory provision—the Legislature in most cases retains the power to amend the restated provision through the ordinary legislative process." ( Ibid .)

That is precisely the situation here. Proposition 115 "restates a statutory provision in full (§ 189) to comply with constitutional mandates. Further, . . . there are no indicia in the language of the initiative or its ballot materials indicating the voters intended to address any provision of section 189, except the list of predicate felonies for purposes of the felony-murder rule. Therefore, we conclude the limiting language in Proposition

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115 . . . does not preclude the Legislature from amending provisions of the reenacted statute that were subject to technical restatement to ensure compliance with article IV, section 9 of the California Constitution." ( Gooden , supra , 42 Cal.App.5th at p. 288.)

For all of these reasons and the additional reasons set out in Gooden , supra , 42 Cal.App.5th 270, we conclude that Senate Bill 1437 did not amend Proposition 7 or Proposition 115. "[T]he 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." ( Gooden , at p. 289.)

E. Section 1170 . 95 Does Not Violate Separation of Powers Principles

The District Attorney contends that section 1170.95 violates the separation of powers doctrine by encroaching upon a core function of the judiciary in "resolving '"specific controversies" between parties.'" This same contention was rejected by Lamoureux , supra , 42 Cal.App.5th at pages 257-264. We agree with Lamoureux 's analysis.

The California Constitution divides power among three coequal government branches: the Legislature (Cal. Const., art. IV, § 1), the executive (Cal. Const., art. V, § 1), and the judiciary (Cal. Const., art. VI, § 1). ( People v . Bunn (2002) 27

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Cal.4th 1, 14 ( Bunn ); LeFrancois v . Goel (2005) 35 Cal.4th 1094, 1102.) Each branch is vested with certain essential or core functions that "may not be usurped by another branch." ( Bunn , supra , at p. 14.) "Protection of those core functions is guarded by the separation of powers doctrine and is embodied in a constitutional provision, which states that one branch of state government may not exercise the powers belonging to another branch." ( Perez v . Roe 1 (2006) 146 Cal.App.4th 171, 176-177 ( Roe 1 ); Cal. Const., art. III, § 3.) This separation of powers notwithstanding, "it is well understood that the branches share common boundaries [citation], and no sharp line between their operations exists." ( Bunn , supra , at p. 14.)

"A core function of the Legislature is to make statutory law, which includes weighing competing interests and determining social policy. A core function of the judiciary is to resolve specific controversies between parties." ( Roe 1 , supra , 146 Cal.App.4th at p. 177.) In performing this function, "courts interpret and apply existing laws." ( Ibid .)

In support of the contention that Senate Bill 1437 unconstitutionally encroaches on the judiciary's role of deciding controversies between parties, the District Attorney relies primarily on separation of powers principles enunciated by our Supreme Court in the companion cases of Bunn , supra , 27 Cal.4th 1, and People v . King (2002) 27 Cal.4th 29 ( King ). Bunn and King adopted the federal separation of powers principles delineated in Plaut v . Spendthrift Farm (1995) 514 U.S. 211, so the District Attorney relies on it too. ( Bunn , at pp. 5, 22-23; King , supra , at p. 31.) Lamoureux , supra , 42 Cal.App.5th at

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pages 257-259, thoroughly summarized all of these cases. We agree with that summary and therefore incorporate it here.

The District Attorney contends in essence that Bunn , supra , 27 Cal.4th 1, and King , supra , 27 Cal.4th 29, stand for the proposition that a final judgment may never be reopened or vacated if legislation authorizing such reconsideration was not in effect before the judgment became final. We agree with Lamoureux that such a broad interpretation of this case law is not supported. ( Lamoureux , supra , 42 Cal.App.5th at p. 260.) Bunn and King announced a relatively narrow rule of law in applying the separation of powers doctrine. That rule is applicable to statutes of limitation: "If a criminal complaint is dismissed because the statute of limitations has run, and the Legislature later retroactively expands the statute of limitations before that ruling becomes final, then the new limitations period will apply. If the Legislature changes the limitations period after the time for appeal has expired or the ruling has completed its journey through the entire appellate process, however, the Legislature's attempt to revive the criminal action violates the separation of powers doctrine." ( Roe 1 , supra , 146 Cal.App.4th at p. 177; Bunn , at p. 5; King , at p. 31.)

The narrow interpretation of the holdings in Bunn and King is buttressed by the Supreme Court's own description of Bunn's holding. In King , supra , 27 Cal.4th at page 31, the Supreme Court explained that in Bunn , supra , 27 Cal.4th 1, it had held "that separation of powers principles preclude retroactive application of refiling legislation in cases where the prior judgment of dismissal was entered or finally upheld before the legislation took effect." ( King , at p. 31, italics added.) The separation of powers

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principles in Bunn and King apply to refiling legislation—that is, legislation that retroactively expands a statute of limitations to render timely charges that were previously dismissed as untimely.

Senate Bill 1437 does not qualify as refiling legislation. It restricts the circumstances under which a person can be liable for murder under the felony murder rule or the natural and probable consequences doctrine. And it allows for individuals who were previously convicted of murder under those theories to petition the court to have those convictions vacated. It bears no similarity to refiling legislation. Senate Bill 1437 does not expand (or otherwise involve) a statute of limitations and actually has the opposite effect of refiling legislation: It reduces the number of persons who can be liable for murder by restricting the scope of conduct on the basis of which a person can be convicted of murder. Refiling legislation increases the number of people who can be liable by expanding the timeframe within which liability can be imposed. Because Senate Bill 1437 does not constitute or resemble refiling legislation, the separation of powers principles announced in Bunn and King are inapplicable.

Moreover, as in Lamoureux , supra , 42 Cal.App.5th at pages 260-261, we find no reason to expand the separation of powers principles in Bunn and King to final judgments of conviction. Indeed, such an interpretation would run afoul of the "substantial precedent [of] remedial legislation authorizing the ameliorative reopening of final judgments of conviction to benefit criminal defendants." ( Lamoureux , at p. 262.) Such legislation was extensively described in Lamoureux , and we need not repeat that description here. ( Id . at pp. 262-263.)

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The District Attorney has not directed us to any authority "applying the Bunn and King separation of powers analysis to bar legislation allowing the reopening of already-final judgments of conviction (as distinct from already-final judgments of dismissal ), and [like Lamoureux ] we have found none." ( Lamoureux , supra , 42 Cal.App.5th at p. 261.) We therefore conclude that Senate Bill 1437 does not violate the separation of powers doctrine through legislative encroachment on judicial powers.

The District Attorney argues that Senate Bill 1437 also violates the separation of powers doctrine by "usurp[ing]" the Governor's "exclusive pardon power" by "legally eras[ing] the conviction without the limits placed on the [G]overnor such as the need for a Supreme Court recommendation for pardons to twice-convicted felons." This argument too is without merit. Senate Bill 1437 has no effect on the Governor's ability to grant clemency and does not constitute an illicit legislative attempt to exercise the executive's clemency power. Rather, Senate Bill 1437 is an exercise of the core legislative power to define crimes, which includes the power to retroactively redefine crimes so long as the offender is not disadvantaged. ( People v . Castellanos (1999) 21 Cal.4th 785, 791 ["'the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them'"].)

The District Attorney nevertheless cites Way v . Superior Court of San Diego County (1977) 74 Cal.App.3d 165, 173-176 ( Way ) to support this proposition. But Way concluded that the statutory provision applying the Uniform Determinate Sentencing Act of 1976 retroactively to incarcerated prisoners did not violate the separation of powers doctrine by impermissibly intruding on the executive pardon power. ( Id . at pp. 168-169,

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177.) Recognizing that Way and subsequent cases "justify incidental intrusion into the powers held by a different branch of government," such as the executive branch, the District Attorney nevertheless contends that "Senate Bill 1437's intrusion is significantly more than in these cases and crosses the line into a clear separation of powers violation." The District Attorney offers no direct or analogous support for this proposition.

This argument too was persuasively rejected in Lamoureux , supra , 42 Cal.App.5th at pages 254-256. We agree with and adopt the analysis and holding there. We find unavailing the District Attorney's criticism of Lamoureux 's reliance on Way, supra , 74 Cal.App.3d 165, and other cases that similarly concluded that there was not impermissible legislative intrusion on executive authority. The District Attorney points out that none of those cases "deal[] with [the] constitutionality of vacating final judgments, let alone the unprecedented action of vacating final murder judgments before the mandatory sentence had been completed." Be that as it may, the District Attorney offers no reason why this distinction is meaningful. Nor can we see any such reason pertaining to the separation of powers between the Legislature and the Governor. We therefore conclude "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" and therefore "does not impermissibly encroach upon the core functions of the executive." ( Lamoureux , at p. 256.)

F. Section 1170 . 95 Does Not Violate Marsy's Law

The District Attorney argues that Senate Bill 1437 violates the rights of crime victims to finality of judgments as enunciated in Marsy's Law, which was passed by

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voter initiative as Proposition 9 (Prop. 9). In addition, the District Attorney argues that Senate Bill 1437 violates Marsy's Law by purportedly depriving victims of their right to safety. These arguments too were rejected by Lamoureux , supra , 42 Cal.App.5th at pages 264-266. We again agree with the analysis in Lamoureux .

Marsy's Law strengthened "'a broad spectrum of victims' rights'" by amending the California Constitution and adding provisions to the Penal Code. ( Lamoureux , supra , 42 Cal.App.5th at p. 264.) Seventeen enumerated victims' rights were added to the Constitution. (Prop. 9, § 4.1, subd. (b); Cal. Const., art. I, § 28, subd. (b)(1)-(17).) As relevant here, those rights include the right "[t]o a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings" and the right "[t]o have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgment release decision is made." (Cal. Const., art. I, § 28, subd. (b)(9), (16).) Marsy's Law cannot be amended except by ballot initiative or by vote of a three-fourths majority in both houses of the Legislature. (Prop. 9, § 9.)

In furtherance of the right to finality, Marsy's Law "substantially amended Penal Code provisions pertaining to parole." ( Lamoureux , supra , 42 Cal.App.5th at p. 264; Prop. 9, §§ 5.1, 5.2, 5.3 amending §§ 3041.5, 3043, 3044.) But Marsy's Law "did not foreclose post-judgment proceedings altogether." ( Lamoureux , at p. 264.) Instead, as Lamoureux explained, Marsy's Law "expressly contemplated the availability of such postjudgment proceedings" by referring to "'parole [and] other post-conviction release proceedings'" in section 28, subdivision (b)(7) of the Constitution and to "'post-

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conviction release proceedings'" in general in section 28, subdivision (b)(8). ( Lamoureux , at pp. 264-265.)

The District Attorney contends that Senate Bill 1437 violates this right to finality "by granting new and substantial privileges to revisit murder convictions and sentences, whether by trial or plea, for reasons wholly independent of the lawfulness of the convictions." If this argument were sound, it would follow that Marsy's Law prohibits the Legislature from creating any new postjudgment criminal proceedings absent a two-thirds majority vote in each house.

However, the District Attorney does not explain how such a sweeping prohibition can be derived from the right to finality in Marsy's Law. Rather, the District Attorney merely quotes the initiative language and emphasizes the words about finality. Although we recognize that Marsy's Law generally should be afforded "a broad interpretation protective of victims' rights" ( Santos v . Brown (2015) 238 Cal.App.4th 398, 418), we decline to interpret Marsy's Law so broadly to find that voters intended to make it more difficult for the Legislature to create new postjudgment proceedings. The voters enacted a generalized right to finality in criminal proceedings. Any such prohibition on the legislative creation of new postjudgment proceedings is neither clear nor unambiguous from the language of the initiative. "It would be anomalous and untenable for us to conclude, as the [District Attorney] impliedly suggest[s], that the voters intended to categorically foreclose the creation of any new postjudgment proceedings not in existence at the time Marsy's Law was approved simply because the voters granted crime

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victims a right to a 'prompt and final conclusion' of criminal cases." ( Lamoureux , supra , 42 Cal.App.5th at p. 265.)

As was the case in Lamoureux , supra , 42 Cal.App.5th at page 265, the District Attorney also contends that the resentencing procedure in section 1170.95 does not "honor[] the victims' right" to safety. We assume without deciding that "the disposition of a section 1170.95 petition is a postjudgment release decision" to which this mandate applies. ( Lamoureux , at p. 265.) While it is correct that the safety of the victim, the victim's family, and the general public are not factors to be considered when a trial court is ruling on a petition under section 1170.95, that is irrelevant. If the trial court concludes that a petitioner is entitled to have his or her murder conviction vacated and the sentence recalled, the court is then required to "resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) In such 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.'" ( Lamoureux , at p. 266; Cal. Rules of Court, rule 4.421(b)(1) & (c).) We conclude, as did Lamoureux , that "[a]t 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 Marsy's Law." ( Lamoureux , at p. 266.)

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For all of these reasons, we conclude that section 1170.95 does not violate Marsy's Law.

G. We Do Not Address Speculative Arguments About Constitutionality

The District Attorney speculates about a number of potential issues concerning the hearing procedures and the remedy provision of section 1170.95 that are allegedly "unlikely to stand up to constitutional scrutiny" because of how those provisions might possibly violate petitioners' constitutional rights. (Boldface and initial capitalization omitted.) We need not address these concerns. The District Attorney lacks standing to pursue these putative challenges to section 1170.95 because "they do not represent the particularized interests of persons who have been accused of criminal offenses or petitioners seeking relief from convictions." ( Lamoureux , supra , 42 Cal.App.5th at p. 267.)

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ
J.

We concur:

SLOUGH
Acting P. J.

FIELDS
J.