THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ALLEN GOODEN, Real Party in Interest.
D075787
(Super. Ct. No. CR61365)
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; MARTY DOMINGUEZ, Real Party in Interest.
D075790
(Super. Ct. No. CR105918)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/19/19
CERTIFIED FOR PUBLICATION
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Christine Bannon, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Angela Bartosik, Randy Mize, Chief Deputy Public Defenders, Robert Ford and Troy A. Britt, Deputy Public Defenders, for Real Parties in Interest.
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 Real Parties in Interest, upon the request of the Court of Appeal.
I
INTRODUCTION
In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015.) Senate Bill 1437 also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain resentencing on any remaining counts. (Id., § 3.)
Real parties in interest were convicted of murder and petitioned for vacatur of their convictions and resentencing under the procedures established by Senate Bill 1437. The People moved to dismiss the petitions on grounds that Senate Bill 1437, which the voters did not approve, invalidly amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978); Proposition 7) and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990); Proposition 115), voter initiatives that increased the punishments for murder and augmented the list of predicate offenses for first degree felony-murder liability, respectively. The trial court rejected the People‘s argument and denied the motions to dismiss. The People filed petitions for writs of mandate and/or prohibition in our court, asking us to direct the trial court to vacate its order denying the motions to dismiss and enter a new order granting the motions.
Like the trial court, we conclude Senate Bill 1437 was not an invalid amendment to Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives. Therefore, we deny the People‘s petitions for writ relief.
II
BACKGROUND
A
In 2018, the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature‘s findings and declarations states the law was “necessary 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
Under the felony-murder rule as it existed prior to Senate Bill 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state. (People v. Chun (2009) 45 Cal.4th 1172, 1182 (Chun).) ” ‘The felony-murder rule impute[d] the requisite malice for a murder conviction to those who commit[ted] a homicide during the perpetration of a felony inherently dangerous to human life.’ ”1 (Id. at p. 1184.) “The purpose of the felony-murder rule [was] to deter those who commit[ted] the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.” (People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Senate Bill 1437 restricted the application of the felony murder rule and the natural and probable consequences doctrine, as applied to murder, by amending
Senate Bill 1437 also “added a crucial limitation” to
Finally, Senate Bill 1437 added
If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (
If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner resentenced “on any remaining counts in the same manner as if the petitioner had not been [sic] previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
The Legislature passed Senate Bill 1437 by a two-thirds vote in the Senate and a less-than-two-thirds majority in the Assembly.
B
Real parties in interest Allen Gooden and Marty Dominguez were convicted of murder in unrelated proceedings. Gooden was convicted of first degree felony murder in 1982 for the death of a neighbor during a burglary. He was sentenced to 25 years to life
The People moved to dismiss the petitions on grounds that Senate Bill 1437, which voters did not approve, impermissibly amended two voter-approved initiatives, Proposition 7 and Proposition 115. According to the People, these alleged amendments violated
Proposition 7, commonly known as the Briggs Initiative, increased the punishment for first degree murder from a term of life imprisonment with parole eligibility after seven years to a term of 25 years to life. (Prop. 7, §§ 1–2.) It increased the punishment for second degree murder from a term of five, six, or seven years to a term of 15 years to life. (Ibid.) Further, it amended
Proposition 115, known as the “Crime Victims Justice Reform Act,” amended
The trial court consolidated real party in interests’ cases and denied the motions. The court found Senate Bill 1437 did not amend Proposition 7 because it did “not reduce sentences for first or second degree-murder.” Further, the court found Senate Bill 1437 did not amend Proposition 115 because it did not “in any way modif[y]” the predicate offenses on which first degree felony-murder liability may be based. Therefore, the court found Senate Bill 1437 was not an invalid legislative amendment.
The People filed petitions for writs of mandate and/or prohibition in our court, requesting us to direct the trial court to vacate its order and enter a new order granting the motions. We issued orders to show cause why the requested relief should not be granted and consolidated the appellate proceedings. At our request, the Attorney General filed an amicus curiae brief on the issues presented in the petitions. In its brief, the Attorney General urged us to deny the People‘s petitions on grounds that Senate Bill 1437 did not amend Proposition 7 or Proposition 115.
DISCUSSION
A
Under
An issue that often arises in litigation involving the constitutionality of a legislative enactment under
In undertaking this analysis, the Supreme Court has cautioned that not all legislation concerning “the same subject matter as an initiative, or event augment[ing] an initiative‘s provisions, is necessarily an amendment” to the initiative. (Pearson, supra, 48 Cal.4th at p. 571.) On the contrary, ” ‘[t]he Legislature remains free to address a ” ‘related but distinct area’ ” [citations] or a matter that an initiative measure “does not specifically authorize or prohibit.” ’ ” (Ibid.; see also Cooper, supra, 27 Cal.4th at p. 47; County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830.)
B
This appeal turns on whether Senate Bill 1437 amended Proposition 7 or Proposition 115 under the standards just discussed. If Senate Bill 1437 amended one or both initiatives, as the People contend, Senate Bill 1437 violates
a
We begin with whether Senate Bill 1437 amended Proposition 7. To resolve this question, we must determine what the voters contemplated when they enacted the initiative. (Pearson, supra, 48 Cal.4th at p. 571.) “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, [we] may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot measure.” (Ibid.)
Therefore, we start with the express language of Proposition 7. In pertinent part, the initiative provided as follows: “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life …. [¶] Every person guilty of murder in the second degree shall suffer confinement in the state prison for a term of 15 years to life.” (Prop. 7, § 2.) Additionally, the initiative expanded the special circumstances which can subject a person convicted of first degree murder to a punishment of death or LWOP. (Id., §§ 5–6.) Each of these provisions increases the possible punishments for the offense of murder. From the language of Proposition 7,
The People contend Senate Bill 1437—which, as noted ante, amended the mens rea requirements for the offense of murder—“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 ….” In so doing, the People conflate two distinct concepts—the elements of murder and the punishment imposed for murder. The elements of an offense and punishment are, as all parties seemingly agree, closely and historically related. Indeed, for a crime to exist, there must exist both a prohibited act and punishment. (
However, the elements of an offense and the punishment for an offense plainly are not synonymous. (People v. Anderson (2009) 47 Cal.4th 92, 119 [“A ... penalty provision is not an element of an offense ….“]; see People v. Banks (2015) 61 Cal.4th 788, 801 [” ‘[T]he definition of crimes generally has not been thought automatically to dictate what should be the proper penalty.’ “].) ” ‘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
As discussed ante, the language of Proposition 7 demonstrates the electorate intended the initiative to increase the punishments, or consequences, for persons who have been convicted of murder. Senate Bill 1437 did not address the same subject matter. It did not prohibit what Proposition 7 authorizes by, for example, prohibiting a punishment of 25 years to life for first degree murder or 15 years to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for instance, permitting a punishment of less than 25 years for first degree murder or less than 15 years for second degree murder. In short, it did not address punishment at all. Instead, it 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.)
Thus, Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative. (Kelly, supra, 47 Cal.4th at pp. 1025–1026; see Pearson, supra, 48 Cal.4th at pp. 572–573 [legislation allowing postconviction discovery addressed area related to, but distinct from, initiative governing pretrial discovery]; Cooper, supra, 27 Cal.4th at pp. 46–47 [legislation
The People concede Proposition 7 addressed “the penalties for murder,” not the elements of murder. However, they claim the electorate intended its voter-approved penalties to apply to murder as the offense was understood at the time Proposition 7 was passed, not as murder may later be defined based on subsequent legislative changes. They point to language in the initiative indicating the increased punishments were for persons convicted of “murder in the first-degree” and “murder in the second-degree,” and claim these terms specifically incorporated by reference the then-existing definitions of first and second degree murder, as interpreted by statute and judicial authorities. In support of this argument, they rely on a tool of statutory construction discussed in Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 (Palermo), which provides: “[W]here a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified ….” (Id. at pp. 58–59.)
We do not find this rule applicable here. Instead, we believe a cognate rule discussed in the Palermo decision is more apt under the circumstances: “[W]here the reference is general instead of specific, such as a reference to a system or body of laws or
The Supreme Court decision of People v. Hernandez (2003) 30 Cal.4th 835, is instructive. There, the defendant was convicted of conspiracy to commit murder and sentenced under a statute, enacted in 1955, which provided as follows: ” ‘[T]he punishment [for conspiracy to murder] shall be that prescribed for murder in the first degree.’ ” (Id. at p. 864.) The Hernandez court considered whether the statutory reference to punishment ” ‘prescribed for murder in the first degree’ ” was intended to fix the penalty permanently at the punishment for first degree murder as it existed in 1955, when the conspiracy statute was enacted, or whether it was intended to account for subsequent changes in the penalty for first degree murder. (Id. at pp. 864–865.) It concluded the reference was general and therefore not intended to freeze the punishment for first degree murder as it existed in 1955. (Id. at p. 865.) We find the Hernandez court‘s analysis applicable in this case, given the clear similarities between the language at issue here (” ‘murder in the first degree’ ” and “murder in the second degree“) and the language considered in the Hernandez decision (punishment ” ‘prescribed for murder in the first degree’ “). (Id. at pp. 864, 865.)
Additionally, we note that Proposition 7 did not identify specific provisions of the
Further, Proposition 7 did not include any time-specific limitations when referring to first or second degree murder, as we might expect if the voters had intended to permanently wall off the definition of murder from future consideration by the Legislature. (Doe v. Saenz (2006) 140 Cal.App.4th 960, 981 [reference to statute was general, not specific, where it did not incorporate statute in a “time-specific way“]; Sneed v. Saenz (2004) 120 Cal.App.4th 1220, 1238 [same].) For example, Proposition 7 did not state, “Every person guilty of murder in the first degree, as that offense is presently defined by statute and judicial authorities, shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life.” It is not our role to rewrite the initiative by inserting language the drafters never included and the voters never considered. (People v. Guzman (2005) 35 Cal.4th 577, 587 [” ‘[I]nsert[ing]’ additional language into a statute ‘violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes.’ “]; see
“Since the language of the initiative is unambiguous, we need not look to other indicia of the voters’ intent.” (Knight, supra, 128 Cal.App.4th at p. 25.) To the extent the ballot materials are relevant, however, they do not support the People‘s contention that Senate Bill 1437 thwarted the voters’ intent in passing Proposition 7.
The Analysis prepared by the Legislative Analyst described Proposition 7 as follows: ”Background: [¶] Under existing law, a person convicted of first degree murder can be punished in one of three ways: (1) by death, (2) by a sentence of life in prison without the possibility of parole, or (3) by a life sentence with the possibility of parole, in which case the individual would become eligible for parole after serving seven years. A person convicted of second degree murder can be sentenced to 5, 6, or 7 years in prison…. [¶] Proposal: [¶] This 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 and aggravating circumstances.” (Ballot Pamp., Gen. Elect. (Nov. 7, 1978), analysis by Legis. Analyst, at p. 32 (Ballot Pamphlet).)
In the portion of the ballot materials presenting the argument in favor of Proposition 7, proponents urged voters to approve the initiative because “the people ha[d] been demanding a tough, effective death penalty law to protect our families from ruthless killers. But, every effort to enact such a law ha[d] been thwarted by powerful anti-death penalty politicians in the State Legislature. [¶] In August of 1977, when the public
These materials all concern the issue of punishment. By contrast, they are silent on the critical issues addressed by Senate Bill 1437. They do not mention the mens rea element of murder or any other requirement necessary for a person to be liable for murder. They do not mention sections 187 (defining murder), 188 (defining malice), or 189 (defining the degrees of murder). Further, they do not discuss the felony-murder rule or the natural and probable consequences doctrine. These ballot materials buttress our conclusion that voters intended Proposition 7 to strengthen the punishments for persons convicted of murder, not to reaffirm or amend the substantive offense of murder.
The legislative history of Senate Bill 1437 does not assist the People either. The People note that the Office of Legislative Counsel sent an opinion letter to Assemblymember Jim Cooper, dated June 20, 2018, in which it purportedly advised that Senate Bill 1437 was an invalid amendment to Proposition 7. However, as real parties in interest explain, there is some uncertainty as to whether the letter—which did not identify by title the pending legislation on which the Office of Legislative Counsel was commenting—pertained to Senate Bill 1437 or, alternatively, Assembly Bill No. 3104, a bill that was not enacted, but would have amended
c
Finally, the People contend that irrespective of whether the Legislature may make prospective changes to the offense of murder, it may not retroactively “allow[] someone who was convicted of murder, lawfully and as a matter of historical fact, to secure a sentence less than that mandated in
The People‘s constitutional attack on the resentencing procedure established in
d
In sum, the voters who enacted Proposition 7 considered and approved increased punishments for persons convicted of murder, including additional means by which such persons could be punished by death or LWOP. However, the text of the initiative and the ballot materials for the initiative do not demonstrate an intent to freeze the substantive elements of murder in place as they existed in 1978. Therefore, Senate Bill 1437—which did not address the issue of punishments for persons convicted of murder—cannot be considered an amendment to Proposition 7.
2
We turn now to whether Senate Bill 1437 amended Proposition 115. For many of the same reasons discussed ante, we conclude the issues addressed by Senate Bill 1437 are distinct from the subject matter of Proposition 115. Therefore, we agree with the real
As noted, Proposition 115 added kidnapping, train wrecking, and certain sex offenses to the list of predicate felonies giving rise to first degree felony-murder liability. (Prop. 115, § 9.) Because Proposition 115 altered the circumstances under which a person may be liable for murder, Senate Bill 1437—which likewise changed the conditions under which a person may be liable for murder—indisputably addresses a matter related to the subject considered by voters. However, as our Supreme Court has cautioned, that alone does not render the Legislature‘s actions invalid. (Kelly, supra, 47 Cal.4th at p. 1025.) Instead, the question we must ask ourselves is whether Senate Bill 1437 addresses a matter that the initiative specifically authorizes or prohibits. (Ibid.)
We conclude 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 115.6 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.
The People do not contend otherwise. Instead, they emphasize that Proposition 115 reenacted
Under
In view of this constitutional mandate, the Supreme Court has rejected the claim the People present here. In Commission, voters approved an initiative: (1) reenacting an existing statutory section, including provisions with minor changes or no changes (to comply with
As in Commission, the initiative in question restates a statutory provision in full (
3
In closing, we reiterate 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.” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.) 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.
DISPOSITION
The petitions are denied.
McCONNELL, P.J.
I CONCUR:
IRION, J.
I respectfully dissent. For the reasons expressed in my dissent in People v. Lamoureux (Nov. 19, 2019, D075794) __Cal.App.5th __, filed concurrently herewith, I would grant the People‘s petition.
O‘ROURKE, J.