THE PEOPLE, Plaintiff and Respondent, v. ALFREDO CRUZ, Defendant and Appellant.
G057564 (Super. Ct. No. 08CF0919)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed 3/18/20
CERTIFIED FOR PUBLICATION
Appeal from a postjudgment order of the Superior Court of Orange County, John Conley, Judge. Reversed and remanded.
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.
Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
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Defendant Alfredo Cruz was convicted of second degree murder in 2010. In 2019, he filed a petition in the superior court for vacation of his murder conviction and resentencing under newly enacted
Here, the court did not determine whether defendant qualified for relief, but instead denied the petition on the ground that Senate Bill 1437 is unconstitutional. The court concluded Senate Bill 1437 violates
Appealing from the denial of his petition, defendant argues the court erred by finding Senate Bill 1437 unconstitutional. He seeks reversal of the court‘s
The voters’ initiative powers that the District Attorney is concerned about are provided for in our state constitution. It protects the will of the electorate by prohibiting the Legislature from undoing what the voters have done through the initiative process. The Legislature remains free to pass laws concerning areas related to but distinct from those covered in an initiative statute but the legislation may not take away from an initiative‘s provisions without the voters’ consent. (People v. Kelly (2010) 47 Cal.4th 1008, 1025 (Kelly).) We conclude the Legislature‘s enactment of Senate Bill 1437 has not undone what the voters accomplished with Proposition 7 or Proposition 115 and therefore the legislation does not violate the constitution. Senate Bill 1437 addresses the elements of murder, an area related to but distinct from the penalty for murder set by voters in Proposition 7. Nothing in the language of Proposition 7 nor its ballot materials evidences an intent by the voters to prohibit the Legislature from refining the elements of murder, namely limiting accomplice liability under the natural and probable consequences doctrine or felony-murder rule. Nor did the voters so limit the Legislature with the passage of Proposition 115.
In this opinion and in the concurrently published opinion filed in People v. Solis (Mar. 18, 2020, G057510) _ Cal.App.5th _, we conclude Senate Bill 1437 is constitutional. Reaching this conclusion, we find ourselves in agreement with the majorities in People v. Superior Court (Gooden) (2020) 42 Cal.App.5th 270 (Gooden) and People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux), which also concluded Senate Bill 1437 did not amend either “Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives.” (Gooden, at p. 275; accord, Lamoureux, supra, at p. 251.)2
PROCEDURAL HISTORY
In 2010, a jury convicted defendant of second degree murder based on his involvement in the death of Luis Rivera, which resulted after defendant took two of his friends with him to confront Rivera and Rivera‘s brothers about a dispute concerning a woman. What began as a yelling match, escalated into a fist fight, and ultimately resulted in one of defendant‘s companions shooting Rivera as defendant drove away. At trial, the prosecution pursued alternative theories of liability: (1) defendant aided and abetted the murder; (2) defendant aided and abetted the target offense of assault with a firearm, the natural and probable consequence of which was murder; and (3) defendant conspired to commit an assault with a firearm, the natural and probable consequence of which was murder. Defendant was sentenced to 15 years to life in prison. We affirmed the judgment in an unpublished decision in 2012. (People v. Cruz (Feb. 6, 2012, G045010).)
In January 2019, defendant filed a petition under
DISCUSSION
The issue we must decide is whether Senate Bill 1437 is an unconstitutional amendment of either Proposition 7 or Proposition 115.
I. GENERAL PRINCIPLES REGARDING AMENDMENT OF VOTER INITIATIVES
Under the California Constitution, a statute enacted through a voter initiative is afforded special protection that limits the Legislature‘s ability to modify it. Such a statute “may be changed only with the approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval.” (People v. Cooper (2002) 27 Cal.4th 38, 44; Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-1484 (Quackenbush) [the Legislature may amend
What constitutes an amendment in this context has been addressed by our Supreme Court. Noting “some decisions contain broad definitions” of an amendment (Kelly, supra, 47 Cal.4th at p. 1026), the high court, seemingly seeking to narrow the definition, indicated “[i]t is sufficient to observe that . . . an amendment includes a legislative act that changes an existing initiative statute by taking away from it.” (Id. at pp. 1026-1027.)3 Less than a year later, the Supreme Court “described an amendment as ‘a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.‘” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson).) In Pearson, the Supreme Court explained that “any legislation that concerns the same subject matter as an initiative” is not necessarily an amendment. (Ibid.) “[T]he Legislature remains free to enact laws addressing the general subject matter of an initiative, or a ‘related but distinct area’ of law that an initiative measure ‘does not specifically authorize or prohibit.‘” (Kelly, at p. 1026, fn. 19; accord, Pearson, at p. 571.) In deciding whether legislation amends an initiative statute, a reviewing court determines whether the legislation “prohibits what the initiative authorizes, or authorizes what the initiative
Determining what the voters contemplated is a matter 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.)
Proposition 7 did not permit legislative amendment of its statutory provisions without voter approval. (People v. Cooper, supra, 27 Cal.4th at p. 44.) Proposition 115 authorized amendment of its statutory provisions by a two-thirds vote in both houses of the Legislature. (Pearson, supra, 48 Cal.4th at pp. 568-569 [citing Stats. 1990, § 30, p. A-256].) Senate Bill 1437 was approved by two-thirds of the California State Senate but not the Assembly4 and was not submitted to voters for approval. Thus, if Senate Bill 1437 amends an initiative statute approved by the voters in either Proposition 7 or Proposition 115, it violates
The issue of whether Senate Bill 1437 amends either initiative is a question of law we review de novo. (People v. Armogeda (2015) 233 Cal.App.4th 428, 435.) “We ‘start[] with the presumption that the Legislature acted within its authority.‘” (People v. DeLeon (2017) 3 Cal.5th 640, 651.) “‘In considering the
II. SENATE BILL 1437 AND PROPOSITION 7
As the analysis of whether Senate Bill 1437 amends Proposition 7 turns on the language in each, we examine both. But first, we endeavor to provide a very brief primer on murder, the natural and probable consequences doctrine, and the felony-murder rule prior to the passage of Senate Bill 1437, as these topics are central to our discussion.
A. Murder
Murder is defined as “the unlawful killing of a human being . . . with malice aforethought” (
It is commonly understood that a defendant can be convicted of murder when he or she is the actual killer. Perhaps less understood are theories of vicarious liability under which an accomplice who does not kill is nonetheless convicted of murder. One of these theories is the natural and probable consequences doctrine. Under this theory, “““[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.““” [Citations.] ‘Thus, for example, if a person aids and abets
A separate theory to support a murder conviction is the felony-murder rule. “The felony-murder rule makes 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.) Under the felony-murder rule, ““the requisite malice for a murder conviction” is imputed “to those who commit a homicide during the perpetration of a felony inherently dangerous to human life.“” (Id. at p. 1184.) Both the actual killer and the accomplice can be convicted of murder under the felony-murder rule.
B. Senate Bill 1437
With Senate Bill 1437, the Legislature amended “the felony murder rule and the natural and probable consequences doctrine, as it relates to murder . . . .” (Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature explained these changes were necessary to ensure “[a] person‘s culpability for murder [is] premised upon that person‘s own actions and subjective mens rea.” (Id., § 1, subd. (g).)
To effectuate these desired changes, Senate Bill 1437 amended sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The following language was added to
“(a) All murder that is perpetrated by means of a destructive device or explosive, . . . poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. [¶] (b) All other kinds of murders are of the second degree. [¶] . . . [¶] (e) 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. [¶] (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. [¶] (f) Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer‘s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer‘s duties.”
Senate Bill 1437 also added
C. Proposition 7
Proposition 7 was approved by voters in a statewide election in November 1978. The statutory changes it made can be grouped into two categories: (1) it increased the penalties for first and second degree murder by amending
Prior to the passage of Proposition 7, a first degree murder conviction was punishable by life imprisonment with the possibility of parole after seven years.6 A defendant convicted of second degree murder could be sentenced to five, six, or seven years in prison. Proposition 7 increased the punishment for first degree murder to life imprisonment with the possibility of parole after 25 years, and the penalty for second degree murder was increased to life imprisonment with the possibility of parole after 15 years. (Prop. 7 Pamp., supra, text of Prop. 7, §§ 1, 2, p. 33.)
D. Senate Bill 1437 Does Not Amend Proposition 7
When we look at the statutes repealed and reenacted by Proposition 7 and those amended by Senate Bill 1437, there is no overlap. Proposition 7 did not address sections 188 (malice) or 189 (degree of murder), which Senate Bill 1437 amends. And Senate Bill 1437 did not amend those in Proposition 7 —
But we must conduct a deeper examination to determine whether Senate Bill 1437 indirectly adds to or takes away from Proposition 7‘s provisions. The District Attorney contends Senate Bill 1437 alters Proposition 7‘s penalties for murder because the legislation redefines the crime of murder by amending sections 188 and 189. We disagree. Senate Bill 1437 does not alter the penalty for murder. After the enactment of Senate Bill 1437, a first degree murder conviction still results in a penalty of life imprisonment with the possibility of parole after 25 years and a second degree murder conviction results in a penalty of life imprisonment with the possibility of parole after 15 years, as required by Proposition 7. Senate Bill 1437 does not authorize reduced sentences for such convictions. Thus, Senate Bill 1437‘s amendments do not take away from Proposition 7‘s provisions.
In re Oluwa (1989) 207 Cal.App.3d 439 illuminates the difference. The issue in Oluwa was whether the defendant, who had been convicted of second degree murder, was entitled to the benefit of more generous custody credit provisions enacted by the Legislature after Proposition 7. (Oluwa, at pp. 442-443.) The appellate court noted that
In Oluwa, the new statutory provisions concerning custody credits lessened the sentence mandated by Proposition 7, thus taking away from the initiative‘s provisions. (In re Oluwa, supra, 207 Cal.App.3d at p. 446.) Here, Senate Bill 1437 does not create such a concern. Senate Bill 1437‘s provisions do not lessen the punishment for a first or second degree murder conviction.
What Senate Bill 1437 did do was limit accomplice liability under the natural and probable consequences doctrine and the felony-murder rule by amending sections 188 and 189. But neither of these statutory amendments changes the penalty for a murder conviction. Proposition 7 prohibits a penalty of less than 25 years to life for a defendant convicted of first degree murder or a penalty of less than 15 years to life for a defendant convicted of second degree murder. This has not changed. Because Senate Bill 1437 does not authorize what Proposition 7 prohibits, it is not an amendment of the initiative. (See People v. Cooper, supra, 27 Cal.4th at p. 47 [because Prop. 7 did not authorize or prohibit presentence conduct credits, limitation of presentence conduct credits in subsequent legislation was not an invalid amendment of Prop. 7].)
As discussed above, the Legislature remains free to enact laws addressing “a ‘related but distinct area’ of law that an initiative measure ‘does not specifically authorize or prohibit.‘” (Kelly, supra, 47 Cal.4th at p. 1026, fn. 19.) The District Attorney asserts that “[w]hat constitutes the crime of murder is not a distinct but related area” to the punishment of murder and therefore the Legislature lacked the authority to refine the elements of murder after the passage of Proposition 7. This assertion is unpersuasive. Although both Senate Bill 1437 and Proposition 7 address murder, each addresses a distinct aspect of murder. Senate Bill 1437 concerns the elements of murder, while
The majority in Gooden, supra, 42 Cal.App.5th 270 aptly pointed out this distinction. The district attorney in Gooden, like the District Attorney here, contended Senate Bill 1437 “‘effectively change[d] the penalties for murder,’ and therefore ‘took away’ from Proposition 7, ‘by changing the very definitions [of murder] relied upon by the voters . . . .‘” (Gooden, at p. 281.) The majority rejected this contention, indicating the district attorney was conflating two related but distinct concepts—the elements of murder and the punishment for murder. (Ibid.) Elucidating the difference, they noted: “‘“Every crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated. This group of essential elements is known as the ‘corpus delicti,’ the body or the elements of the crime.“‘” [Citation.] Punishment, however, “‘has always meant a ‘fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for [the] crime or offense committed by him.‘“‘“” (Id. at p. 281.) They explained that while the elements of an offense and the punishment for an offense are “closely and historically related” they “are not synonymous.” (Ibid.)
The general rule is that the Legislature has the exclusive “““““power to define crimes and fix penalties.““““” (People v. Powell (2018) 5 Cal.5th 921, 943.) With the passage of Proposition 7, the electorate claimed the power to fix the penalty for murder, taking it away from the Legislature. But the power to define murder and its essential elements remains with the Legislature as Proposition 7 did not address the statutes that define murder (
Similarly here, Proposition 7‘s language concerned only the penalty for murder, not the related but distinct issue of the elements of murder. Contrary to the District Attorney‘s assertion, Proposition 7 was not all-encompassing as to both the elements of murder and its sentence. Nothing in the plain language of Proposition 7 indicates the electorate intended to provide for or prohibit modification of the elements of murder.
Regardless of how the test is phrased, Senate Bill 1437 does not amend Proposition 7 as the legislation does not take away from the initiative‘s statutory provisions; it does not authorize what Proposition 7 prohibits or prohibit what Proposition 7 authorizes; and it addresses an area related to but distinct from Proposition 7‘s provisions concerning the penalty for murder. Because we conclude the language of Proposition 7 is clear and unambiguous, we need not look to its ballot pamphlet materials for indicia of the voters’ intent. (People v. Knight (2005) 128 Cal.App.4th 14, 25.) But as each party relies on the ballot materials to support his argument, we nevertheless consider whether these materials reflect an intent by the voters to prevent the Legislature from subsequently limiting accomplice liability for murder under the natural and probable consequences doctrine or felony-murder rule.
The ballot pamphlet materials for Proposition 7 contained a summary prepared by the Attorney General, which described the initiative as follows: “Changes and expands categories of first degree murder for which penalties of death or confinement without possibility of parole may be imposed.
The Legislative Analyst explained the “proposition would: (1) increase the penalties for first and second degree murder, (2) expand the list of special circumstances requiring a sentence of either death or life imprisonment without the possibility of parole, and (3) revise existing law relating to mitigating or aggravating circumstances.” (Prop. 7 Pamp., supra, analysis of Prop. 7 by Legis. Analyst, p. 32.)
The “Argument in Favor of Proposition 7” focused on the need to strengthen California‘s death penalty to “give every Californian the protection of the nation‘s toughest, most effective death penalty law.” (Prop. 7 Pamp., supra, argument in favor of Prop. 7, p. 34.) Similarly, the “Argument Against Proposition 7” focused on whether it was necessary to amend California‘s death penalty provisions. (Prop. 7 Pamp., supra, argument against Prop. 7, p. 35.)
Thus, nothing in Proposition 7‘s text or its ballot materials reference the elements of murder or more specifically the definition of malice in
Nevertheless, relying on these ballot materials, the District Attorney asserts “[u]nder no reading of the arguments, the Legislative Analyst‘s discussion, or the proposition itself, did the people express a willingness or desire to permit the Legislature to re-define what is required for murder to narrow the range of offenders to which Proposition 7 would apply.” But neither did the voters express the desire to prohibit the Legislature from refining the elements of murder or limiting accomplice liability under the natural and probable consequences doctrine or the felony-murder rule. The issue simply was not presented to the people. Neither the plain language of Proposition 7 nor its ballot materials included any restriction on the Legislature‘s ability to define murder, malice, or the felony-murder rule. Proposition 7 voters did not contemplate accomplice liability for murder under a natural and probable consequences theory or the felony-murder rule. Proposition 7 therefore
For the foregoing reasons, we conclude Senate Bill 1437 is not an unconstitutional amendment of Proposition 7. We reach the same conclusion in People v. Solis, supra, _ Cal.App.5th _, after reviewing the ballot materials for Proposition 7 and employing a similar analysis.
III. SENATE BILL 1437 DOES NOT AMEND PROPOSITION 115
We likewise conclude Senate Bill 1437 is not an unconstitutional amendment of Proposition 115. To determine what the voters contemplated with the passage of Proposition 115, we begin by looking at the initiative‘s language.
Proposition 115 made several changes to criminal law and procedure when passed by voters in 1990. (People v. Banks (2015) 61 Cal.4th 788, 794.) Pertinent here is its amendment to
Proposition 115 also “revised the scope of capital liability for aiding and abetting felony murders” by amending
The language Senate Bill 1437 added to
The District Attorney contends Senate Bill 1437 “substantially changed”
With the passage of Proposition 115, voters did consider capital liability for aiding and abetting felony murders. (See People v. Banks, supra, 61 Cal.4th at pp. 794, 797-798.) The District Attorney contends that because Proposition 115 addressed accomplice liability in death penalty cases, the Legislature was not free to address accomplice liability for first degree felony murder in Senate Bill 1437. We are not persuaded. Accomplice liability for first degree murder in
The District Attorney also argues that language in Proposition 115 prohibiting amendment to its “statutory provisions” has greater significance than the commonly used language that amendment of an initiative‘s “provisions” is prohibited. He asserts the “statutory provisions” language in Proposition 115 indicates the “voters wanted to prevent the Legislature from amending any of the specific statutes included in the initiative, without regard to how much of the language of the statute was changed and regardless of the general rule” “that mere restatement of existing language in a statute as required by the [California] Constitution [citation] does not prevent legislative amendment . . . .” We do not import such meaning into the fact
Thus as to Proposition 115, we reach the same conclusion as the majority in Gooden that “Senate Bill 1437 did not amend Proposition 115.” (Gooden, supra, 42 Cal.App.5th at p. 286.) In People v. Solis, supra, _ Cal.App.5th _, we likewise conclude Senate Bill 1437 does not amend Proposition 115 and is consistent with its goals.
DISPOSITION
The order denying defendant‘s petition for resentencing (
IKOLA, J.
WE CONCUR:
O‘LEARY, P. J.
FYBEL, J.