California Cases April 12, 2021: People v. Johnson

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA023840-4)

OPINION

APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Reversed and remanded with directions.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Lillian Ann Johnson appeals from an order of the San Bernardino County Superior Court summarily denying her motion for resentencing made pursuant to Penal Code section 1170.95. We reverse and remand.

Defendant and three others participated in a robbery, which resulted in a robbery victim's fatal shooting by one of defendant's accomplices. In 2007, a jury convicted defendant of first degree murder under a felony-murder theory because she had aided and abetted a robbery during which one of her coparticipants had killed one of the victims. The trial court sentenced her to a term of 25 years to life in state prison. Defendant's judgment was affirmed by this court. ( People v . Johnson (July 30, 2008, E042972) [nonpub. opn.].)

In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.). The bill made several changes to the Penal Code, including limiting liability under the felony-murder rule and the natural consequences doctrine. It also added section 1170.95, which established the procedure for resentencing a person convicted of felony murder or murder under a natural and probable consequences theory if the person can establish that they could not now be convicted of first or second degree murder because of Senate Bill No. 1437's amendments to sections 188 or 189. (§ 1170.95, subd. (a)(3); Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)

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On January 9, 2019, defendant filed in the trial court a section 1170.95 petition to vacate her murder conviction and to be resentenced in accordance with the new Penal Code provisions. The People moved to strike the petition on the grounds the passage of Senate Bill No. 1437 violated California's Constitution by significantly and improperly amending two initiatives approved by the voters, Propositions 7 and 115. The court granted the People's motion and summarily denied the petition.

In its written statement of decision, the court explained that Proposition 7 increased the punishment for persons convicted of first and second degree murder and expanded the circumstances in which a person could be found guilty of those crimes. Proposition 115 increased and expanded the list of predicate offenses that would subject a person to first degree murder liability. California's Constitution forbids the Legislature from amending a statute enacted by voter initiative without approval of the electorate unless the initiative provides some other procedure for amendment. (Cal. Const, art. II, § 10, subd. (c).) An amendment to Proposition 7 requires voter approval. Proposition 115 may be changed only if the proposed amendment receives a two-thirds majority vote by each chamber of the Legislature. The court found Senate Bill No. 1437 made significant amendments to the two propositions and because the requirements for amending those initiatives were not met, the bill violated the Constitution.

Defendant appealed.

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On appeal, defendant argues Senate Bill No. 1437 is constitutional and requests this court to issue an order to show cause. The People concede the constitutionality issue and recommend the matter be remanded for consideration of the petition's merits.

1. The constitutionality of Senate Bill No. 1437

Resolution of the constitutionality issue turns on whether Senate Bill No. 1437 amended the provisions enacted by Propositions 7 and 115. ( People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270, 279-280 ( Gooden ).) If it did, then the bill is unconstitutional. ( Ibid .) If, however, the bill affected a related but distinct area of law or addressed a matter that the initiatives did not specifically authorize or prohibit, then it passes constitutional muster. ( Ibid .)

Our Supreme Court has not addressed Senate Bill No. 1437's constitutionality but the majority opinions issued by appellate courts considering the question have found the bill did not amend the propositions and, therefore, it did not violate the Constitution—a conclusion we adopt here. ( Gooden , supra , 42 Cal.App.5th at pp. 280-289 [Fourth Dist., Div. One]; People v . Lamoureux (2019) 42 Cal.App.5th 241, 268 (dis. opn. of O'Rourke, J.), review & request for depublication den., S259835 [Fourth Dist., Div. One]; People v . Lippert , supra , 53 Cal.App.5th at p. 314 (dis. opn. of Ramirez, P. J.) [Fourth Dist., Div.

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Two]; People v . Johns (2020) 50 Cal.App.5th 46, 54-55 [Fourth Dist., Div. Two]; People v . Prado (2020) 49 Cal.App.5th 480, 491-492 [Fourth Dist., Div. Three]; People v . Solis (2020) 46 Cal.App.5th 762, 775-784 [Fourth Dist., Div. Three]; People v . Cruz (2020) 46 Cal.App.5th 740, 746-747 [Fourth Dist., Div. Three]; People v . Lopez (2020) 51 Cal.App.5th 589, 593-594 [Second Dist., Div. Two]; People v . Smith (2020) 49 Cal.App.5th 85, 91-92 [Second Dist., Div. Five], review granted on other points July 22, 2020, S262835; People v . Bucio (2020) 48 Cal.App.5th 300, 308-312 [Second Dist., Div. Six]; People v . Lombardo (2020) 54 Cal.App.5th 553, 555 [Third Dist.]; People v . Nash (2020) 52 Cal.App.5th 1041, 1052-1053 [Fifth Dist.]; People v . Alaybue (2020) 51 Cal.App.5th 207, 211 [Sixth Dist.].)

2. Defendant's section 1170.95 petition

Defendant posits she has made a prima facie showing of entitlement to relief from her conviction of murder because her petition contains her declaration and information required by subdivision (b) of section 1170.95. She argues the sentencing court would have vacated her murder conviction and resentenced her had it considered the merits of her petition and urges us to direct the trial court to issue an order to show cause.

We agree that the petition appears sufficient in that the correct boxes are checked and the required information has been provided. We do not agree with defendant, however, that submission of a fully completed petition entitles her to relief or that the trial court should be directed to issue an order to show cause.

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Section 1170.95 provides for a three-step review process that acts as a "substantive gatekeeping function, screening out clearly ineligible petitioners before devoting additional resources to the resentencing process." ( People v . Verdugo (2020) 44 Cal.App.5th 320, 331 ( Verdugo ), review granted Mar. 18, 2020, S260493. )

The first step upon receipt of a petition is to review it for completeness, ensuring the information required by subdivision (b) of section 1170.95 has been provided. (§ 1170.95, subd. (b)(1).) If the information is lacking and cannot be readily ascertained by the court, then the court may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)

If the petition is in compliance with section 1170.95, subdivision (b), the second step requires the court to "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) That is, the court is to make a preliminary determination that a petitioner is eligible for relief as a matter of law by reviewing information available in the record of conviction (e.g., the complaint, information, verdict forms, jury instructions, and Court of Appeal opinion if there was an appeal from the judgment). ( Verdugo , supra , 44 Cal.App.5th at pp. 329-330, 333; People v . Lewis (2020) 43 Cal.App.5th 1128, 1137-1138, review granted Mar. 18, 2020, S260598 [the court may review the record of conviction, which includes the opinion in an appeal from the judgment, when determining the sufficiency of a § 1170.95 petition]; People v . Bascomb (2020) 55

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Cal.App.5th 1077, 1084 [review of the record of conviction may include jury instructions].) If the record of conviction establishes as a matter of law that petitioner is not eligible for relief, the court can dismiss the petition. ( Verdugo , at pp. 329-330.)

If the record of conviction does not foreclose relief for the petitioner, the third step requires the court to appoint counsel for the petitioner if one has been requested, to direct the prosecutor to file a response to the petition, and to allow the petitioner to submit a reply. (§ 1170.95, subd. (c); Verdugo , supra , 44 Cal.App.5th at pp. 332-333.) If the court finds the petitioner has made a prima facie showing of entitlement to relief, it is then that it is required to issue an order to show cause and conduct a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subds. (c), (d).)

Here, the trial court dismissed defendant's petition on constitutional grounds. We will remand the matter for compliance with the process for review and decision set forth in section 1170.95.

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We reverse the judgment of the trial court and remand for proceedings in keeping with this opinion.

RAMIREZ
P. J.

I concur:

McKINSTER
J.

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MENETREZ, J., Concurring.

I concur in the judgment for the reasons stated in People v . Johns (2020) 50 Cal.App.5th 46 and People v . Lippert (2020) 53 Cal.App.5th 304, with which I continue to agree. I also agree that because the trial court dismissed the petition on constitutional grounds, on remand the court must proceed to consider the petition's merits, on which I express no opinion.

MENETREZ
J.