THE PEOPLE, Plaintiff and Respondent, v. MANUEL DE JESUS PRADO, Defendant and Appellant.
G058172 (Super. Ct. No. 96NF3094)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 5/26/20
CERTIFIED FOR PUBLICATION
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Lance Jensen, Judge. Reversed and remanded. Request for judicial notice granted.
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.
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This is an appeal from an order denying a defendant‘s petition to dismiss a murder conviction. (
In California, statutes can be described as initiative statutes, legislative statutes, or referendum statutes. An initiative statute is a statute enacted by the electorate. A legislative statute is a statute enacted by the Legislature. A referendum statute is a statute that was first proposed by the Legislature, then approved by the electorate.
To protect the people‘s initiative power, the Legislature is constitutionally prohibited from amending or repealing an initiative statute without the approval of the electorate (unless the initiative statute provides otherwise): “The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.” (
In 2018, the Legislature passеd Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The bill amended sections 188 and 189, which respectively define malice and the degrees of murder. As amended, the two statutes substantially reduced the scope of an accomplice‘s liability for murder. Senate Bill 1437 also enacted section 1170.95, which allows eligible persons convicted of murder to petition for relief.
Here, defendant Manuel De Jesus Prado filed a section 1170.95 petition. He stated that he was convicted of murder and is entitled to a dismissal bеcause of the Legislature‘s amendments to sections 188 and 189. The court denied defendant‘s petition, finding the Legislature violated the constitutional limitation on amending or repealing initiative statutes when it passed Senate Bill 1437. We disagree.
Section 1170.95 is a new statute that establishes a procedure for eligible defendants convicted of murder to petition for relief. The Legislature did not violate the constitutional limitation on amending or repealing an initiative statute when it passed Senate Bill 1437 and enacted section 1170.95 because it is itself a legislative statute that neither amends nor repeals any other statute.
Thus, we reverse the trial court‘s denial of defendant‘s section 1170.95 petition. On remand, the court is to consider defendant‘s petition on its merits.
I
PROCEDURAL BACKGROUND
In 1999, a jury found defendant guilty of first degree murder. The jury also found true an allegation that defendant wаs vicariously armed. The trial court sentenced defendant to an aggregate prison term of life without the possibility of parole.
In 2019, defendant filed a section 1170.95 petition. Defendant averred, “I could not now be convicted of 1st or 2nd degree murder because of changes made to
The prosecution filed a response. The prosecution argued “Senate Bill 1437 violates the California Constitution.” In the alternative, the prosecution argued under section 1170.95, defendant “is statutorily ineligible.”3
The trial court filed an order denying defendant‘s section 1170.95 petition. The court found, “Senate Bill 1437 is unconstitutional.”
DISCUSSION
Defendant contends the trial court erred when it found Senate Bill 1437 violated the constitutional limitation on amending or repealing an initiative statute. (
A trial court‘s ruling on the constitutionality of a legislative act is a pure question of law, therefore our review is de novo. (Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1374.)
While we exercise independent judgment, we also begin with a well-established presumption that the Legislature did not violatе the Constitution. (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594.) “In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act. [Citations.] Thus, wherever possible, we will interpret a statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute.” (Ibid.)
In this discussion we will: (A) consider the constitutional limitation on the Legislature‘s authority to amend or repeal аn initiative statute; (B) examine Senate Bill 1437, which amended two statutes concerning accomplice liability for murder (
A. The California Constitution prohibits the Legislature from amending or repealing an initiative statute unless the initiative statute provides otherwise.
In California, the power to enact legislation is shared between the Legislature and the people. “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.” (
An amendment occurs when a statute is changed. (Kelly, supra, 47 Cal.4th at pp. 1026-1027, fn. 18 [an act that “‘adds to or takes away from an existing statute is considered an amendment‘“].) A statute must be reenacted in full if any part of it is amended. (
A repeal occurs when an existing statute is revoked. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 255 [“A corollary of the legislative power to make new laws is the power to abrogate existing ones“].) Generally, a statute must be repealed explicitly (either by the Legislature or by the electorate through an initiative measure). (See City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1232 [“Repeal of legislative acts by implication is disfavored, and all presumptions are against a repeal by implication“]; Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1518 [“Our holding has nothing to do with repeal by implication; the repeal is explicit on the face of the statute“].)
The constitutional limitation on the authority to amend or repeal initiative statutes prevents the Legislature from interfering with the power of the people to propose and enact legislаtion. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1042.) The limitation safeguards “the people‘s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate‘s consent.” (Huening v. Eu (1991) 231 Cal.App.3d 766, 781.)
To illustrate, the Supreme Court voided part of a legislative statute that regulated medical marijuana because it impermissibly amended an earlier initiative
statute that also regulated medical marijuana. (Kelly, supra, 47 Cal.4th 1008.) In 1996, the electorate enacted Health and Safety Code section 11362.5, which allowed persons to possess a quantity of marijuana reasonably related to their medical needs (an initiative statute as part of the Compassionate Use Act). (Kelly, at pp. 1027-1028.) But in 2003, the Legislature—without voter approval—enacted Health and Safety Code section 11362.77, which imposed quantity limitations on medical marijuana (a legislative statute as part of the Medical Marijuana Program). (Kelly, at pp. 1012-1014Art. II, § 10, subd. (c); Kelly, at p. 1012.)
B. Senate Bill 1437 amended sections 188 and 189, which limited the scope of accomplice liability for murder, and enacted section 1170.95, which allows eligible accomрlices to petition for relief from their murder convictions.
Generally, a murder is an unlawful killing that includes the element of malice: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (
Liability for intentional, target offenses is known as “direct” aider and abettor liability; liability for unintentional, nontarget offenses is knоwn as the “‘natural and probable consequences’ doctrine.” (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
Effective January 1, 2019, the Legislature passed Senate Bill 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).)
Through the passage of Senate Bill 1437 thе Legislature effectively eliminated the natural and probable consequences doctrine as it relates to murder convictions, and reduced the scope of the felony-murder rule. To effectuate these changes, the Legislature amended sections 188 and 189, and added section 1170.95.
1. Section 188 (Malice Aforethought)
Section 188 defines malice, which is an element of the crime of murder. In 1872, the Legislature enacted section 188 as part of the initial codification of laws in California. (See Kleps, The Revision and Cоdification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 774.) Prior to the passage of Senate Bill 1437, the Legislature had amended section 188 only two times. (Stats.1981, ch. 404, p. 1593, § 6; Stats.1982, ch. 893, § 4.) The electorate has never amended section 188 through an initiative measure. The electorate has never repealed and reenacted section 188 in an amended form.
Prior to Senate Bill 1437, former section 188 provided: “[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to takе away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [¶] When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.”
The Legislature added the following language to section 188: “Except as stated in subdivisiоn (e) of Section 189, in order to be convicted of murder, a
2. Section 189 (Murder Degrees and Felony Murder)
Section 189 classifies murders into two degrees (first or second) and lists the predicate felonies for the crime of first degree felony murder. Section 189 was also enacted by the Legislature in 1872. Prior to passing Senate Bill 1437, the Legislature had amended section 189 numerous times. Thе electorate has amended section 189 only once. (Initiative Measure (Prop. 115), approved June 5, 1990, eff. June 6, 1990.) Through Proposition 115, the electorate amended section 189 by adding six offenses to the then existing list of five predicate felonies. The electorate has never repealed and reenacted section 189 in an amended form.
Prior to Senate Bill 1437, former section 189 provided: “All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under
intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”
The Legislature added the following language to section 189: “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, aidеd, 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 . . . .” (
When the Legislature passed Senate Bill 1437, it also added a new statute. Section 1170.95 establishes a procedure whereby an eligible defendant can seek to dismiss his or her murder conviction (and be resentenced on any remaining charges), if the dеfendant was convicted under an accomplice liability theory that is no longer valid (the former felony-murder rule or the natural and probable consequences doctrine). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)
Section 1170.95 designates: the threshold requirements for relief; the requirements of the petition; and the procedures to be followed.
The threshold requirements for relief are: “(a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner‘s murder conviction vacated and to be resentenced . . . when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes . . . made effective January 1, 2019.” (
The requirements of the petition are: “(b)(1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney . . . , and on thе attorney who represented the petitioner in the . . . county where the petitioner was convicted. . . . The petition shall include all of the following: [¶] (A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The . . . court case number and year of the petitioner‘s conviction. [¶] (C) Whether the petitioner requests the appointment of counsel.” (
The procedures to be followed are: “(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause. [¶] (d)(1) Within 60 days after the order to show cause has issued, the court shall hold a
C. The Legislature did not violate the California Constitution because Senate Bill 1437 neither amended nor repealed any initiative statutes.
Again, the Legislature is generally prohibited from amending or repealing an initiative statute without the approval of the electorate. (
Section 188 was enacted by the Legislature in 1872. The Legislature has since amended the statute a few times, but the electorate has never amended section 188. The electorate has also never repealed and reenacted section 188. (See
Section 189 was also enacted by the Legislature in 1872. The Legislature has since amended the statute several times, but the electorate has amended section 189 only once. In 1990, the electorate approved Proposition 115, which was a major reform in criminal law that amended, repealed, and added several statutes (and constitutional provisions). However, the amendment to section 189 was minor; thе electorate added six “predicate” offenses to the existing list that establishes liability for first degree felony murder. Notably, the electorate did not repeal and reenact section 189 in its amended form. (See
again re-enacted, but to have been the law all along‘“].) Therefore, section 189 was from its enactment—and remains—a legislative statute.7
Section 1170.95 is a new statute enacted by the Legislature as part of Senate Bill 1437. Section 1170.95 allows an eligible defendant convicted of murder to petition for a dismissal of his or her murder conviction, and to be resentenced on any remaining charges. As we have seen, section 1170.95 designates the threshold requirements for relief, the specific requirements of the petition, and the procedures to be followed. That is the entire extent of section 1170.95.
In sum, we find that the Legislature did not violate the constitutiоnal limitation on amending or repealing an initiative statute. (
Thus, we reverse the ruling of the trial court. On remand, the court is to consider defendant‘s section 1170.95 petition on its merits.
D. The prosecution‘s arguments are not persuasive.
The prosecution argues: “In 1978, California voters passed Proposition 7 and set the penalty for committing first degree and second degree murder. In 1990, California voters passed Proposition 115 which added crimes eligible for felony murder liability. Senate Bill No. 1437 is an unlawful intrusion into the voters’ right via initiative to set the elements and the penalties for crimes. The power of the people via initiative has supreme authority over that of the Legislature.” We disagree.
The prosecution overstates the initiative authority of the electorate, relative to the legislative authority of the Legislature. One is not “supreme” over the other, each has the authority to enact statutes. (See
As we have discussed, the constitutional limitation on the Legislature‘s authority is narrow. The Legislature is simply prevented from amending or
The prosecution is essentially arguing that Senate Bill 1437 impliedly amended Proposition 7 and Proposition 115. The prosecution is mistaken.
We need not repeat at length the cogent analysis of the other appellate panels that have uniformly rejected this same argument. In short, Proposition 7 increased the punishment for murder, while Senate Bill 1437 amended the elements of murder to establish accomplice liability. Further, Proposition 115 added to the list of predicate offenses for felony murder, while Senate Bill 1437 did not affect any of the predicate felonies. (See People v. Cruz (2020) 46 Cal.App.5th 740, 747 [“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“]; People v. Solis (2020) 46 Cal.App.5th 762 [Senate Bill 1437 did not amend Proposition 7 or Proposition 115]; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 [same]; People v. Lamoureux (2019) 42 Cal.App.5th 241 [same].)
In conclusion, the Legislature did not violate the constitutional limitation on amending or repealing an initiative statute when it passed Senate Bill 1437.
III
DISPOSITION
The trial court‘s order denying defendant‘s petition for resentencing is reversed. The matter is remanded to the court for further proceedings on the merits of defendant‘s petition under section 1170.95.
MOORE, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.