THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO LOPEZ, Defendant and Appellant.
B300787
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 6/29/20
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BA130416)
APPEAL from a postjudgment order of the Superior Court of Los Angeles County. Kathleen Kennedy, Judge. Reversed and remanded with directions.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Loрez, Rama R. Maline and Nelson Ryan Richards, Deputy Attorneys General, for Plaintiff and Respondent.
Mark Zahner, Chief Executive Officer, California District Attorneys Association, Michael A. Hestrin, District Attorney (Riverside), Alan D. Tate, Lead Deputy District Attorney, Jesse Male, Deputy District Attorney, Jason Anderson, District Attorney (San Bernardino), and James R. Secord, Deputy District Attorney, as Amicus Curiae on behalf of
Jose Alberto Lopez appeals the postjudgment order denying his petition for resentencing under
We reject Amicus Curiae‘s arguments and agree with Lopez and the Attorney General that Senate Bill No. 1437 and
FACTS AND PROCEDURAL BACKGROUND
Lopez was charged in 1996 with one count of murder committed for the benefit of and in association with a criminal street gang (
The court found a factual basis for the plea based on Lopеz‘s testimony about the events underlying the plea. Lopez admitted to being a member of the Mara Salvatrucha street gang in 1996. Around 11:30 p.m. on April 7, 1996, Lopez was in front of an apartment building on Westmoreland Avenue in Los Angeles with another Mara Salvatrucha gang member when he saw two fellow gang members, “Youngster” and “Player,” pull up in a car and speak to some individuals on the street. As Youngster and Player began to drive away, someone threw а bottle into the street, prompting them to exit the car and chase the bottle-thrower. Lopez joined the chase, following the others into the apartment building where a fistfight broke out on the staircase. After taking part in the fight, Lopez left the building and heard shots fired. He did not have a weapon, he did not shoot anyone, and he did not know who had fired the shots.
In making its “very unusual grant of probation” the court struck most of the aggravating factors and noted Lopez‘s “extreme youth” (he was 18 at the time of the offense) and his “extremely minimal record.” The court emphasized Lopez‘s “minor role in the confrontation,” stating, “He was not the shooter. He was not the initiator. He was not involved in the robbery if there was one. He was present when an altercation arose, apparently spontaneously . . . among others who were present.” The court also noted that Lopez had confessed and cooperated with police by providing names and identifying suspects.
The court warned Lopez that if he violated probation, “[he would] be getting 15 to life, period,” and it “could cost [him] 15 years to life just hanging around” gang members. Lopez agreed to the terms of his probation, but soon after sentencing he violated probation, and on March 27, 1997, he was sent to prison for 15 years to life.
On January 2, 2019, Lopez filed a petition for resentencing pursuant to
The superior court summarily denied the petition on the sole ground that Senate Bill No 1437 is unconstitutional because it impermissibly amended Propositions 7 and 115.4
DISCUSSION
I. Standard of Review
The postjudgment order denying Lopez‘s resentencing petition is appealable. (
II. Senate
A. Legal principles
“We begin with the fundamental proposition that in resolving a legal claim, a court should speak as narrowly as possible and resort to invalidation of a statute only if doing so is neсessary.” (People v. Kelly (2010) 47 Cal.4th 1008, 1047 (Kelly); Dittus v. Cranston (1959) 53 Cal.2d 284, 286 [“Courts should exercise judicial restraint in passing upon the acts of coordinate branches of government“].) Indeed, there is a strong presumption favoring the constitutionality of the Legislature‘s acts (Amwest Sur. Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253), and “courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.” (People v. Falsetta (1999) 21 Cal.4th 903, 912–913; Dittus v. Cranston, at p. 286 [“the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional“].)
While the Legislature may freely amend or repeal a statute enacted by the Legislature or by referendum, the California Constitution prohibits the Legislature from amending or repealing an initiative statute, unless otherwise specified by the initiative statute itself. (Johnston v. Claremont (1958) 49 Cal.2d 826, 835 [“The amendment of a legislative act is itself a legislative act. The power to legislate includes by neсessary implication the power to amend existing legislation“];
“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; People v. Rizo (2000) 22 Cal.4th 681, 685.)
B. Senate Bill No. 1437
Amending the felony murder rule and effectively eliminating the natural and prоbable consequences doctrine as it relates to murder, the Legislature passed Senate Bill No. 1437 “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); Prado, supra, 49 Cal.App.5th at p. 487.) To accomplish this objective, Senate Bill No. 1437 amended two state murder statutes: section 188 defining malice, and section 189, which classifies murder into two degrees and lists the predicate felonies for the crime of first degree felony murder. (See Stats. 2018, ch. 1015, §§ 2, 3.) Under the amended law, a participant in a specified felony during which a death occurs may be convicted of murder for that death “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
Senate Bill No. 1437 also added
C. In enacting Senate Bill No. 1437, the Legislature acted within its Constitutional authority to amend legislative statutes and enact new laws
The Legislature enacted former section 188 in 1872 and since then has amended it only three times: in 1981 (Stats. 1981, ch. 404, § 6), in 1982 (Stats. 1982, ch. 893, § 4), and in 2018 with Senate Bill No. 1437.5 California voters have never amended section 188 by initiative,
The Legislature also enacted former section 189 in 1872, and has amended the law numerous times since then. California voters have amended section 189 only once, by adding six offenses to the list of predicate felonies for the crime of first degree felony murder in Proposition 115.6 (Initiative Measure
(Prop. 115), approved June 5, 1990, eff. June 6, 1990.) Although Proposition 115 effected a major reform to California‘s criminal law by amending, repealing and adding several statutes and constitutional provisions, the amendment to former section 189 was minor. Significantly, the electorate has never—even with the approval of Proposition 115—repealed and reenacted section 189 in an amended form. (Prado, supra, 49 Cal.App.5th at pp. 488, 490–491; see
The fact that Proposition 115 included the entire text of Penal Code section 189—including the unchanged provisions defining the offense—does not change the analysis: “The California Constitution required the inclusion of the unchanged language. (See
So it is here. As Gooden declared, Proposition 115 “restates a statutory provision in full (§ 189) to comply with constitutional mandates. Further, . . . there are no indicia in the language of the initiative or its ballot materials indicating the voters intended to address any рrovision of section 189, except the list of predicate felonies for purposes of the felony-murder rule. Therefore, we conclude the limiting language in Proposition 115 . . . does not preclude the Legislature from amending provisions of the reenacted statute that were subject to technical restatement to ensure compliance with article IV, section 9 of the California Constitution.” (Gooden, supra, 42 Cal.App.5th at p. 288; see Johns, supra, __ Cal.App.5th __ [p. 21].)
In short, both sections 188 and 189 werе enacted as, and remain, legislative statutes subject to amendment by the Legislature. (Prado, supra, 49 Cal.App.5th at pp. 490–491; Johnston v. Claremont, supra, 49 Cal.2d at p. 835.)
D. Senate Bill No. 1437 did not amend any initiative statute
The superior court in this case found Senate Bill No. 1437 to be unconstitutional on the sole ground that it constitutes an impermissible amendment to a ballot initiative. We disagree.
1. Senate Bill No. 1437 did not amend Proposition 7
The express language of Proposition 7 dealt solely with the penalties for murder. The initiative increased the minimum penalty for first degree murder from life with the possibility of parole after seven years to a term of 25 years to life. (Prop. 7, §§ 1–2;
By contrast, Senate Bill No. 1437 did not address punishment at all, but instead “amended the mental state requirements for murder, which ‘is perhaps as close as one might hope to come to a core criminal offense “element.” ’ (Apprendi v. New Jersey (2000) 530 U.S. 466, 493.)” (Gooden, supra, 42 Cal.App.5th at p. 282; Solis, supra, 46 Cal.App.5th at p. 779.) Of course, “[t]he definition of a crime is distinct from the punishment for a crime. . . . Punishment is not an element of a crime but is the penalty imposed by judgment of a court of law on a person for committing a crime, which рenalty may include death, confinement, or a fine, among other things.” (Solis, at p. 779, quoting People v. Anderson (2009) 47 Cal.4th 92, 119 [“a ‘penalty provision is not an element of an offense under California law’ “]; People v. Ruiz (2018) 4 Cal.5th 1100, 1107.)
Likewise,
Because Senate Bill No. 1437 did not concern the penalty for persons convicted of murder, and nothing in the text of Proposition 7 or its ballot materials indicated any intent to freeze the substantive elements of murder in place as they existed in 1978, Senate Bill No. 1437 cannot be considered an amendment to Proposition 7. (Gooden, supra, 42 Cal.App.5th at p. 286; see People v. Johns, supra, __ Cal.App.5th __ [pp. 16–17]; Prado, supra, 49 Cal.App.5th at p. 492; People v. Smith (2020) 49 Cal.App.5th 85, pp. 91–92; Bucio, supra, 48 Cal.App.5th at p. 308; Solis, supra, 46 Cal.App.5th at pp. 774–780; People v. Cruz (2020) 46 Cal.App.5th 740, 753–759 (Cruz); Lamoureux, supra, 42 Cal.App.5th at pp. 250–251.7)
2. Senate Bill No. 1437 did not amend Proposition 115
Multiple courts have also concluded that, although “the two enactments do address related subject matter,” Senate Bill No. 1437 did not amend Proposition 115. (Johns, supra, __ Cal.App.5th __ [pp. 15, 20–21]; see Prado, supra, 49 Cal.App.5th at pp. 491–492; Bucio, supra, 48 Cal.App.5th at p. 312; Solis, supra, 46 Cal.App.5th at pp. 780–784; Cruz, supra, 46 Cal.App.5th at pp. 759–761; Lamoureux, supra, 42 Cal.App.5th at pp. 250–251; Gooden, supra, 42 Cal.App.5th at p. 287.) The relevant question is whether “Senate Bill 1437 addresses a matter that [Proposition 115] specifically authorizes or prohibits.” (Gooden, at p. 287.) It does not: “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.)
3. Senate Bill No. 1437 did not contravene the will of the voters
In reaching its conclusions, Gooden reiterated “a bedrock principle underpinning the rule limiting legislative amendments to voter initiatives: ‘[T]he voters should get what they enacted, not more and not less.’ [Citation.] Here, the 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. By enacting Senate Bill 1437, the Legislature has neither undermined these initiatives nor impinged upon the will of the voters who passed them.” (Gooden, supra, 42 Cal.App.5th at pp. 288–289.)
We agree with the analysis of our sister courts in Johns, Bucio, Solis, Cruz, Lamoureux, and Gooden, and conclude that Senate Bill No. 1437‘s changes to the felony-murder rule and elimination of the natural and probable consequences doctrine do not unconstitutionally amend Proposition 7 or Proposition 115. Accordingly, Lopez is entitled to have his petition considered on the merits.
The superior court‘s postjudgment order is reversed and the matter is remanded for further proceedings under
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.