People v. JohnsPeople v. Johns
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 viсtim. 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 cоnvicted 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 therefore did not amend either ballot initiative. We also conclude retroactive application of S.B. 1437 through the petitioning process doesn‘t violаte the separation of powers doctrine or the Victims’ Bill of Rights of 2008 (Marsy‘s Law), as the district attorney argues.1
We will therefore reverse the judgment of the trial court and remand the case for further proceedings called for by
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,
Not relevant here, other provisions of Propоsition 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.)
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 procеss 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.)
The initiative also changed the rules regarding criminal discovery, prohibited post-indictment preliminary hearings, established the People‘s right to due process and speedy criminal trials, and allowed hearsay in preliminary hearings. (1990 Ballot Pamp., supra, text of Prop. 115, pp. 33, 65-69; see also Raven v. Deukmejian, supra, 52 Cal.3d at p. 342 [summarizing Proposition 115].)
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 mental state.” (People v. Chun, supra, 45 Cal.4th at p. 1182.) First degree felony murder was “a killing during the course of a felony specified in [Penal Code]
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 allоwed 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 (
On October 12, 2018, Johns filed a motion in the trial court seeking to take advantage of the petitioning procedure created by S.B. 1437 (
On March 22, 2019, the trial court found Johns hаd 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 pоwer 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 approvаl, but only if approved by a two-thirds vote in each house of the Legislature. In this case, the question isn‘t whether the Legislature acted in a way that would comply with the requirements for amending the initiative statutes—all agree they didn‘t—but the analytically prior question whether S.B. 1437 amended those provisions in the first place. The trial court concluded S.B. 1437 did amend them, invalidating the enactment, and the district attorney defends that decision on appeal. Johns and the Attorney General argue S.B. 1437 did not amend the statutory provisions enacted through Propositions 7 and 115, and the trial court should have enforced the new law because “[t]he Legislature remains free to address ‘“a related but distinct area‘” . . . or a matter that an initiative measure ‘does not specifiсally 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.” (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
The question is one оf 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 7, which “the electorate intended . . . to increase the punishments, or consequences, for persons who have been convicted of murder.” (Gooden, at p. 282.) The court concluded S.B. 1437 “did not address the same subject matter. It did not prohibit what Proposition 7
In the same opinion, the court concluded S.B. 1437 didn‘t amend Proposition 115, which added offenses that cоuld 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 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. (
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
In short, 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 the trial court erred by holding otherwise.
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 аre 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 othеr 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
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 (
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 violаtes 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 rеstricting 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 agree with the Lamoureux court that there‘s no reason to expand those separation of powers principles to reach final judgments of conviction. (Lamoureux, supra, 42 Cal.App.5th 241, pp. 260-261.) 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-
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 speеdy 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
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.
The district attorney also argues the resentencing procedure in
We therefore conclude
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.