People v. JohnsPeople v. Johns
- Reporters:
- , ,
- Before:
- Slough, Fields, Menetrez
OPINION
Previously, an accused could be convicted of murder under the felony-murder rule or the natural and probable consequences doctrine of aider and abettor liability, even if the accused didn‘t kill or intend to kill the victim. The Legislature, exercising its authority to define substantive offenses, enacted Senate Bill 1437, which amended
S.B. 1437 also created a new petitioning procedure that allows offenders previously convicted under the felony-murder rule or the natural and probable consequences doctrine to have their murder convictions vacated if they couldn‘t be convicted of murder under the new law. (
Appellant Gerry Johns claims to be such an offender. He suffered a murder conviction based on his aiding and abetting a 1981 robbery of four people in a car at a drive-through restaurant, during which a codefendant killed one of the victims with a shotgun. (People v. Johns (1983) 145 Cal.App.3d 281, 287, 295.) Johns filed a petition to vacate his murder conviction under
We agree with Johns that S.B. 1437 is constitutional and he is entitled to have the trial court consider his petition. Proposition 7 addressed the punishment appropriate for murder, not the elements of the offense, and Proposition 115 added predicates for applying the felony-murder rule, which S.B. 1437 left intact. We therefore conclude S.B. 1437 addressed related but distinct areas of the law which the initiatives left in the power of the Legislature to amend. (People v. Kelly (2010) 47 Cal.4th 1008 (Kelly).) The new statutory provisions
We will therefore reverse the judgment of the trial court and remand the case for further proceedings called for by
I
BACKGROUND
A. Statutory Background
1. Proposition 7
Proposition 7, known as the Death Penalty Act, increased the penalties for offenders convicted of first and second degree murder. The voters approved those changes on November 7, 1978.
Before Proposition 7,
The initiative increased the penalties for both first and second degree murder. It amended
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. (1978 Ballot Pamp., supra, Legis. Analyst, analysis of Prop. 7, p. 32.)
Proposition 7 did not include a provision authorizing the Legislature to amend its provisions without voter approval. (See 1978 Ballot Pamp., supra, text of Prop. 7, §§ 1-12, pp. 33, 41-46; People v. 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).)
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., Prim. Elec. (June 5, 1990) (1990 Ballot Pamphlet) text of Prop. 115, pp. 33, 65-69.) 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 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.)
Relevant to this case, the initiative amended
Proposition 115 permitted the Legislature to amend its terms by a two-thirds vote in each house of the Legislature. (1990 Ballot Pamp., supra, text of Prop. 115, § 30, p. 69.)
3. S.B. 1437
Generally, malice is an essential element of the crime of murder. (
Before S.B. 1437, the felony-murder rule and the natural and probable consequences doctrine were exceptions to the actual malice requirement. The felony-murder rule made “a killing while committing certain felonies murder without the necessity of further examining the defendant‘s
In 2018, the Legislature adopted, and the Governor signed, S.B. 1437. In an uncodified section of the law, the Legislature declared 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. at § 1.) 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 indifference to human life.” (Ibid.)
In effect, S.B. 1437 is a change to the substantive offense of first and second degree murder, removing the exceptions that had allowed such convictions despite the absence of malice. Effective January 1, 2019, S.B. 1437 made that change by amending
The Legislature also added
B. Johns’ Petition
Johns suffered a murder conviction based on his aiding and abetting a 1981 robbery. He and a codefendant approached four young women waiting in a car at the drive-through window of a fast food restaurant. One of the men demanded money, someone reached into the car to take a wallet, then a shot fired by the codefendant killed one of the victims. (People v. Johns, supra, 145 Cal.App.3d at pp. 287, 295.)
A jury convicted Johns of robbery (
C. The Trial Court‘s Ruling
On March 22, 2019, the trial court found Johns had stated a prima facie case for relief under
“[U]nder the rule of analysis employed by the California Supreme Court in Kelly, the Legislature was not free to enact SB 1437, except under the parameters of article II, section 10 for amending Proposition 7 or by the supermajority requirement of Proposition 115. This legislation was enacted by neither procedure and, hence, [is] invalid. . . . [¶] I hereby grant the motion to strike the petition for re-sentencing by declining to give enforcement to SB 1437.”
Johns filed a timely notice of appeal.
II
DISCUSSION
A. Legal Background
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. (
Proposition 7 didn‘t 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
A statute amends an initiative when it is “designed to change an existing initiative statute by adding or taking from it some particular provision.” (People v. Cooper, supra, 27 Cal.4th at p. 44.) This doesn‘t mean “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.) Our Supreme Court has directed 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 explained, we should not invalidate a law enacted by the Legislature if it doesn‘t impinge on “what 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.” (People v. Superior Court (Pearson), supra, 48 Cal.4th at p. 571.)
Our colleagues in the Fourth District, Division One recently gave the questions raised in this appeal comprehensive consideration in a pair of companion decisions. In People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden), the Court of Appeal applied the Pearson test and decided S.B. 1437 didn‘t amend Proposition
In the same opinion, the court concluded S.B. 1437 didn‘t amend Proposition 115, which added offenses that could be predicates for applying the felony-murder rule. As the court pointed out, S.B. 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, supra, 42 Cal.App.5th at p. 287.)
The court reached the same conclusions in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux), where it considered several additional arguments for finding the
We have latitude to depart from the decisions of our sister Courts of Appeal, though we generally exercise our discretion only when supported by good reason. (Lucent Technologies, Inc. v. Board of Equalization (2015) 241 Cal.App.4th 19, 35.) We see no good reason for departing from the decisions of the Fourth District, Division One on these issues. On the contrary, like every other court of appeal to consider the same question, we conclude their analysis is unimpeachable and join and adopt it. (People v. Bucio (2020) 48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th 740; People v. Prado (May 26, 2020, G058172) 2020 WL 2730876; People v. Smith (May 15, 2020, B298642) 2020 WL 2537482).)
B. S.B. 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.) S.B. 1437 left the punishment for murder unchanged, but altered the elements required to convict an accused of murder. (
The Proposition 7 ballot materials confirm the point. The initiative‘s primary focus was implementing the death penalty. (1978 Ballot Pamp., supra, argument in favor of Prop. 7, 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 to the law. (Ibid.) Neither the felony-murder rule nor the natural and probable consequences doctrine factored into their arguments. (
Nor does
The district attorney argues Proposition 7 incorporated by reference the elements of first and second degree murder as defined at the time the voters enacted it. “It is unambiguous that Proposition 7 set the penalties for murder which may not be changed by the Legislature unilaterally. The amendments to
As the Gooden court 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. “[W]here 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“].) So here, where Proposition 7 referred generally to murder in the first degree and murder in the second 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 short, as the Gooden court held, “Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct
C. S.B. 1437 Did Not Amend Proposition 115
Although Proposition 115, unlike Proposition 7, amended the definition of murder, we nevertheless conclude S.B. 1437 did not amend Proposition 115. As we discussed above, the key portions of Proposition 115 at issue are those that added to
The Fourth District, Division One concluded 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 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.)
It doesn‘t matter that Proposition 115 included the entire text of
That is precisely the situation here. Proposition 115 “restates a statutory provision in full ([
For all these reasons and the additional reasons set out in Gooden, we conclude S.B. 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, supra, 42 Cal.App.5th at p. 289.)
D. Section 1170.95 Does Not Violate Separation of Powers Principles
The district attorney argues
The California Constitution divides power among three coequal government branches—the Legislature (
“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
In their separation of powers argument, the district attorney relies primarily on the Supreme Court‘s companion cases Bunn and People v. King (2002) 27 Cal.4th 29 (King), which adopted the federal separation of powers analysis of Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211. (Bunn, supra, 27 Cal.4th at pp. 5, 22-23; King, at p. 31.) At bottom, the district attorney‘s argument is that Bunn and King teach that a final judgment may never be reopened or vacated unless legislation authorizing such reconsideration was in effect before the judgment became final.
We agree with Lamoureux that such a broad interpretation isn‘t supported. (Lamoureux, supra, 42 Cal.App.5th at p. 260.) Bunn and King announced a narrow rule of law 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, supra, 27 Cal.4th at p. 5; King, supra, 27 Cal.4th at p. 31.) As the Supreme Court explained in King, Bunn held “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.) Thus, legislation violates the separation of powers doctrine if it retroactively expands a statute of limitations to render timely charges that were previously dismissed as untimely.
S.B. 1437 doesn‘t 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 people who were previously convicted of murder under those theories to petition the court to have their convictions vacated. Not only does S.B. 1437 not involve the expansion of a statute of limitations (or a statute of limitations at all), it has the opposite effect of refiling legislation; it reduces the number of people who can be liable for murder by restricting the scope of conduct for which a person can be convicted. Because S.B 1437 doesn‘t constitute and isn‘t similar to refiling legislation, the separation of powers principles announced in Bunn and King simply don‘t apply.
We therefore conclude S.B. 1437 does not violate the separation of powers doctrine.
E. Section 1170.95 Does Not Violate Marsy‘s Law
The district attorney argues S.B. 1437 violates victims’ rights to finality of judgments, as protected in Marsy‘s Law, which the voters passed by initiative as Proposition 9. (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9 (Proposition 9).) In addition, they argue S.B. 1437 violates Marsy‘s Law by depriving victims of their right to safety. Lamoureux rejected these arguments, and we agree with its reasoning and analysis.
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.) The initiative added numerous specific victims’ rights to the Constitution, including (relevant here) the rights “[t]o a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings” and “[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.” (
To promote finality, Marsy‘s Law “substantially amended Penal Code provisions pertaining to parole.” (Lamoureux, supra, 42 Cal.App.5th at p. 264; 2008 Ballot Pamphlet, supra, text of Prop. 9, §§ 5.1-5.3 at pp. 130-132, amending
The district attorney argues S.B. 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 of the legislature. But the district attorney doesn‘t explain how such a sweeping prohibition can be derived from the right to finality. Instead, they quote the initiative, selectively focusing on words related to finality.
Although we recognize we should, as a general matter, afford Marsy‘s Law “a broad interpretation protective of victims’ rights” (Santos v. Brown (2015) 238 Cal.App.4th 398, 418), we decline to interpret the law so broadly to find that voters intended to impede the Legislature from creating new postjudgment proceedings. “It would be anomalous and untenable for us to conclude, as the People impliedly suggest, 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 victims a right to a ‘prompt and final conclusion’ of criminal cases.” (Lamoureux, supra, 42 Cal.App.5th at p. 265.)
The district attorney also argues the resentencing procedure in
III
DISPOSITION
We reverse the judgment of the trial court and remand for further proceedings under
CERTIFIED FOR PUBLICATION
SLOUGH
Acting P.J.
We concur:
FIELDS
J.
MENETREZ
J.