THE PEOPLE v. MARIA LISSETTE URENA BUCIO
2d Crim. No. B299688
IN
Filed 4/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIA LISSETTE URENA BUCIO,
Defendant and Appellant.
2d Crim. No. B299688
(Super. Ct. No. 2008046598)
(Ventura County)
FACTUAL AND PROCEDURAL HISTORY
Bucio aided and abetted her nephew in a robbery which resulted in the death of a person. The jury found her guilty of robbery and first degree murder, and found true the allegation that the murder occurred during the course of the
robbery. (
Following enactment of SB 1437 in 2018, Bucio filed a petition for resentencing pursuant to
The trial court found that “SB 1437 is unconstitutional in that it conflicts with . . . Propositions 7 and 115, and improperly invades the province of the executive branch by effectively granting pardons to defendants who have been convicted and sentenced for felony-murder.”
After the trial court’s ruling, our colleagues in the Fourth Appellate District upheld the constitutionality of SB 1437 in two companion cases: People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden) and People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux). We also conclude that SB 1437 is constitutional.
The Legislature enacted SB 1437 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 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) In so doing, the Legislature sought 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.” (Stats. 2018, ch. 1015, § 1, subd. (e).)
SB 1437 amended
to vacate the murder conviction and resentence on any remaining counts. (
If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner must be resentenced “on any remaining counts in the same manner as if the petitioner had not been previously . . . sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
Here, it is undisputed that Bucio is eligible for relief if SB 1437 is constitutional. The Ventura County District Attorney (District Attorney) contends SB 1437 is unconstitutional because it (1) amends Propositions 7 and 115, (2) violates separation of powers, and (3) amends the Victim Bill of Rights Act of 2008 (Marsy’s Law). Whether legislative enactments are constitutional presents a question of law which we review de novo. (Vergara v. State of California (2016) 246 Cal.App.4th 619, 642.) Like our colleagues in the Fourth Appellate District, we conclude that SB 1437 is constitutional.
The Legislature may amend or repeal a statute enacted by voter initiative only with the approval of the electorate, unless the initiative statute provides otherwise. (Cal. Const., art. II, § 10, subd. (c).) To determine whether legislation amends a voter initiative, we must decide whether legislation “prohibits what the initiative authorizes, or authorizes what the initiative prohibits.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson); see also Gooden, 42 Cal.App.5th at pp. 279-280.) “But 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 . . . . ‘The Legislature remains free to address a “‘related but distinct area’” [citations] or a matter that an initiative measure “does not specifically authorize or prohibit.”’ [Citations.]” (Pearson, at p. 571, original italics.)
The District Attorney contends SB 1437 unconstitutionally amends Proposition 7 without the electorate’s approval. Proposition 7, also known as the Briggs Initiative, was adopted by voters in 1978. It amended
The District Attorney argues SB 1437 unconstitutionally amends Proposition 7 by changing the penalty for murder through indirect means, i.e., by reclassifying murders as lesser crimes. By doing so, the argument goes, the Legislature is attempting to do indirectly that which it cannot do directly. (In re Oluwa (1989) 207 Cal.App.3d 439, 446.) We are not persuaded by this argument.
Whether SB 1437 amends Proposition 7 is a question of statutory interpretation. (Pearson, 48 Cal.4th at p. 571.) We must “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 voter’s intent and understanding of a ballot measure.” (Ibid.)
In Pearson, 48 Cal.4th at page 573, our Supreme Court considered whether
In People v. Cooper (2002) 27 Cal.4th 38 (Cooper), our Supreme Court considered whether
limited his presentence conduct credits. (Cooper, at p. 41.) The court disagreed. Article 2.5 of the Penal Code only cited to provisions that authorized awards of postsentence conduct credits; it did not cite to provisions limiting presentence conduct credits. (Cooper, at p. 46.) Accordingly, legislative modification of presentence credits was “not an invalid modification of [Proposition 7].” (Id. at p. 47.)
As relevant here, the language of Proposition 7 deals with the penalties for murder, mandating increased minimum terms of incarceration for murders. In contrast, SB 1437 deals with the related but “distinct” subject matter of the elements of murder. (Gooden, 42 Cal.App.5th at p. 281; Pearson, 48 Cal.4th at p. 573.) In particular, it is designed to reserve the harshest penalties for persons with the greatest culpability. Thus, it draws a distinction between those who act with intent to kill (or as a “major participant” in a felony or with “reckless indifference to human life”) and those who do not. Moreover, SB 1437 “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 [SB 1437], did not
The District Attorney relies on People v. Kelly (2010) 47 Cal.4th 1008, 1012 (Kelly), in which our Supreme Court considered whether Health and Safety Code
enacted Compassionate Use Act of 1996 (CUA; Proposition 215). The CUA provided an affirmative defense for possession and cultivation of marijuana for personal medical purposes. It did not specify the amount of marijuana that a patient or caregiver may possess or cultivate. (Kelly, at p. 1013.) The Legislature subsequently enacted Health and Safety Code
The court held that Health and Safety Code
It is significant that our Supreme Court held that notwithstanding the invalidity of Health and Safety Code
necessary.” (Ibid.) In particular, courts should presume in favor of the constitutionality of legislation, and “‘the invalidity of the legislation must be clear before it can be declared unconstitutional.’” (Ibid.; see Dittus v. Cranston (1959) 53 Cal.2d 284, 286.)
Unlike Kelly, SB 1437 does not “take away” from Proposition 7’s provisions that establish minimum punishments for first degree and second degree murder. (Kelly, 47 Cal.4th at p. 1043.) The punishment for murder remains the same. Penalties and elements of a crime
Acknowledging the distinction between penalties and elements of a crime, the District Attorney argues that when the Legislature enacted Proposition 7, the voters intended to “freeze” the definition of murder as it existed at that time, thereby prohibiting subsequent legislative enactments modifying the elements of murder. We are not persuaded.
“‘“[W]here a statute adopts by specific reference the provisions of another statute . . . such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified . . . . [Citations.] [¶] . . . [¶] . . . [but] where the reference is general instead of specific, . . . 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 . . . as they may be subjected to elimination altogether by repeal. [Citations.]”’ [Citation.]” (Cooper, 27 Cal.4th at p. 44.)
Here, Proposition 7’s lack of specific reference to the elements of murder shows the voters did not intend to “freeze”
the definition of murder as it existed when Proposition 7 was enacted. (Gooden, 42 Cal.App.5th at p. 283.) Proposition 7 did not identify Penal Code provisions defining the offense of murder; instead, it pertained only to the punishment for murder. (Gooden, at p. 283.) If the drafters had intended to preclude future revisions to the elements of murder, Proposition 7 could have done so by referring to
The District Attorney also contends SB 1437 unconstitutionally amended Proposition 115 without a two-thirds majority (as required by Proposition 115). We again disagree.
As relevant here, Proposition 115 amended
SB 1437 did not amend Proposition 115. (Gooden, 42 Cal.App.5th at p. 280; Lamoureux, 42 Cal.App.5th at p. 251) SB 1437 did not address “a matter that [Proposition 115] specifically authorizes or prohibits.” (Gooden, at p. 287.) In particular, SB 1437 did not augment or restrict the list of predicate felonies on which felony murder may be based. Rather, it amended the mental state necessary for murder, which is “a distinct topic not addressed by Proposition 115’s text or ballot materials.” (Ibid.)
The District Attorney also argues Proposition 115 reenacted all of
Moreover, when technical reenactments are required, but involve “no substantive change” in the affected statutory provision, the Legislature “retains the power to amend the restated provision through the ordinary legislative process.” (County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 214.) Here, neither the language of Proposition 115 nor its ballot materials indicate the voters’ intent to address any provision of
to ensure compliance with article IV, section 9 of the California Constitution.” (Gooden, 42 Cal.App.5th at p. 288.)
Marsy’s Law
The District Attorney next contends
Article I, section 28, subdivision (a)(6) of the California Constitution, provides that “[v]ictims of crime are entitled to finality in their criminal cases. Lengthy appeals and other [postjudgment] proceedings that challenge criminal convictions . . . and the ongoing threat that the sentences of criminal
The District Attorney argues that
Marsy’s Law restricts the Legislature from creating new postconviction procedures, such as
The District Attorney also argues that
Separation of Powers
Lastly, the District Attorney contends
First,
commutation . . . [¶] . . . the objective of the Legislature in approving
Moreover, granting a
Second,
with People v. Bunn (2002) 27 Cal.4th 1 and People v. King (2002) 27 Cal.4th 29 [where legislation authorized the refiling of charges against a previously acquitted defendant].) In fact, there are several examples of remedial legislation authorizing the “ameliorative” reopening of final judgments of conviction, such as Propositions 36 and 47. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012), Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The “prevalence of such legislation . . . confirms there is nothing especially unique about
The order dismissing the petition for resentencing is reversed, and the matter is remanded to the trial court with directions to grant the petition and resentence Bucio on the remaining counts. (
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
Kevin G. DeNoce, Judge
Superior Court County of Ventura
Jennifer Hansen, 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 Amici Curiae on behalf of Defendant and Appellant.
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, for Plaintiff and Respondent.