Opinion
B298678
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE BATTLE, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for Plaintiff and Respondent. Mark Zahner, Chief Executive Officer, California District Attorneys Association, Michael A. Hestrin, District Attorney, County of Riverside, Alan D. Tate, Lead Deputy District Attorney, Jason Anderson, District Attorney, County of San Bernardino, and James R. Secord, Deputy District Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA096767) APPEAL from a postjudgment order of the Superior Court of Los Angeles County, James D. Otto, Judge. Reversed and remanded. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for Plaintiff and Respondent. Mark Zahner, Chief Executive Officer, California District Attorneys Association, Michael A. Hestrin, District Attorney, County of Riverside, Alan D. Tate, Lead Deputy District Attorney, Jason Anderson, District Attorney, County of San Bernardino, and James R. Secord, Deputy District Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.
Defendant Freddie Battle challenges a postjudgment order denying his petition for resentencing under recently enacted Penal Code section 1170.95. The trial court denied the petition after finding Senate Bill No. 1437 (S.B. 1437) and section 1170.95 unconstitutional for amending two voter-enacted initiatives, Propositions 7 and 115.
Unspecified references to statutes are to the Penal Code.
Defendant contends, and Respondent Attorney General agrees, that the trial court erred in finding S.B. 1437 and section 1170.95, as enacted by S.B. 1437, unconstitutional. Reasserting the same arguments made by the People below, Amicus Curiae contends S.B. 1437 and section 1170.95 unconstitutionally amended Propositions 7 and 115. It also contends section 1170.95 violates the separation of powers and infringes on the victims' bill of rights (Cal. Const. art I, §§ 28, 29).
We agree with defendant and the Attorney General that S.B. 1437 (and section 1170.95, as enacted by S.B. 1437) did not unconstitutionally amend Proposition 7 or Proposition 115. We reverse the postjudgment order and remand the matter for further proceedings in accordance with section 1170.95.
BACKGROUND
In 2015, defendant was convicted of three counts: count 1, first degree murder (§ 187); count 2, first degree burglary (§ 459); and count 3, attempted first degree robbery (§§ 664/211). The jury found true allegations that the murder was committed while defendant was an accomplice in the commission of burglary and robbery (§§ 190.2, subd. (a)(17).)
On May 14, 2018, we reversed the special circumstance findings and remanded for resentencing after we concluded that the evidence was insufficient to support a finding that defendant was a major participant or acted with reckless indifference to human life during the commission of the burglary and robbery. (People v. Daniia Davis & Freddie Battle (May 14, 2018, B275820) [nonpub. opn.].)
Defendant Daniia Davis is not a party to this appeal.
On September 30, 2018, the Governor signed S.B. 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).) S.B. 1437 significantly modified the law relating to accomplice liability for murder by amending sections 188 and 189. (People v. Verdugo (2020) 44 Cal.App.5th 320, 325.) It also added section 1170.95, which permits "[a] person convicted of felony murder or murder under a natural and probable consequences theory" to "file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts" if he or she could not be convicted of murder under the revised versions of sections 188 and 189. (§ 1170.95, subd. (a).)
S.B. 1437 added subdivision (e) to section 189, which sets forth three alternative requirements for a "participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs" to be liable for murder. (S.B. 1437, § 3; see § 189, subd. (e)(1)-(3).)
Defendant filed a section 1170.95 petition on October 1, 2018.
On March 4, 2019, the Los Angeles County District Attorney (the People) filed an opposition to defendant's petition on constitutional grounds. As relevant here, the People argued that S.B. 1437's revision of sections 188 and 189, and the addition of section 1170.95, unconstitutionally amended two voter-enacted initiatives, Proposition 7 and Proposition 115. Proposition 7 was "a voter initiative that 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, and increased the punishment for second degree murder from a term of five, six, or seven years to a term of 15 years to life" by adding section 190 to the Penal Code. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 250 (Lamoureux).) Proposition 115 was "a voter initiative that augmented the list of predicate offenses giving rise to first degree felony-murder liability." (Ibid.) The People argued that by changing the definition of felony murder and eliminating the natural and probable consequences doctrine, S.B. 1437 illegally amended Proposition 7, which could not be done under any circumstances, and Proposition 115 because it was not passed by a two-third majority, as was required under Proposition 115.
The People also argued that section 1170.95, as enacted by S.B. 1437, violated the separation of powers by commanding courts to reopen final judgments, which also infringed on the Governor's pardon and commutation power. They further argued that section 1170.95 violated the victims' bill of rights (Cal. Const., art. I, §§ 28, subd. (a)(6), 29) by vacating final judgments and convictions, and reducing punishment to certain classes of individuals.
Attached to the People's opposition were two letters in which legislative counsel opined that S.B. 1437 improperly amended Proposition 7. The letters, dated March 12, 2018 and June 20, 2018, both opined that S.B. 1437 "constitutes an amendment of Proposition 7 because it changes the scope and definition of murder on which the voters relied when enacting Section 190 by initiative in 1978. As such, the proposed measure requires the approval of the electors to become effective, in compliance with Section 10 of Article II of the California Constitution." The People also attached three trial court orders holding that S.B. 1437 and section 1170.95 were unconstitutional.
Defendant filed a reply to the opposition on April 22, 2019. He argued that S.B. 1437 (and section 1170.95, as enacted by S.B. 1437) was not unconstitutional and did not violate the separation of powers or otherwise infringe on the power of the judiciary or governor.
The court held a hearing on defendant's petition on May 13, 2019. After hearing argument from counsel, the court denied defendant's section 1170.95 petition on the ground that S.B. 1437 and section 1170.95 unconstitutionally amended Propositions 7 and 115.
Defendant filed a timely appeal from the postjudgment ruling.
DISCUSSION
Defendant and the Attorney General both contend S.B. 1437 and section 1170.95, as enacted by S.B. 1437, did not unconstitutionally amend Propositions 7 and 115. The California District Attorneys Association, as Amicus Curiae, reasserts the same arguments that the People had made to the trial court. After conducting a de novo review (People v. Luo (2017) 16 Cal.App.5th 663, 680), we agree with defendant and the Attorney General that S.B. 1437 did not unconstitutionally amend Propositions 7 and 115.
The Attorney General notes that it "is providing a uniform defense of the law throughout the State."
In light of our findings, and because the trial court did not utilize the remaining arguments set forth by Amicus Curiae, we do not address those alternative arguments. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 ["[i]t has heretofore been considered against the policy of this court (and of courts of last resort generally) to reach out and unnecessarily pronounce upon the constitutionality of any duly enacted statute"].)
A statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless the initiative statute provides otherwise. (Cal. Const., art. II, § 10, subd. (c).) "[D]espite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have observed that this body is not thereby precluded from enacting laws addressing the general subject matter of an initiative. The Legislature remains free to address a '"related but distinct area"' [citations] or a matter that an initiative measure 'does not specifically authorize or prohibit.' [Citations.]" (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026 (Kelly).)
Because Proposition 7 did not authorize the Legislature to amend it (People v. Cooper (2002) 27 Cal.4th 38, 41, 44 (Cooper)), and because S.B. 1437 passed the Assembly without the necessary votes for legislative amendment of Proposition 115 (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 567 (Pearson); People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 277 (Gooden)), S.B. 1437 would be unconstitutional, if it constitutes an "amendment" to Proposition 7 or Proposition 115. "An amendment is a legislative act designed to change an existing initiative statute by adding or taking away from it some particular provision." (Cooper, supra, at p. 44.)
To determine if S.B. 1437 constitutes an amendment to Proposition 7 or Proposition 115, "we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.) Division One of the Fourth District Court of Appeal recently answered this question in the negative in Gooden, supra, 42 Cal.App.5th 270, and reaffirmed its conclusion in People v. Lamoureux, supra, 42 Cal.App.5th 241. This Division and this District have found the analysis in Gooden and Lamoureux persuasive. We continue to follow that analysis here.
S.B. 1437 did not amend Proposition 7. The express language of Proposition 7 increased the possible punishments for murder, and expanded the special circumstances by which a person convicted of first degree murder would be punished by death or LWOP. S.B. 1437 did not address punishment. "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.'" [Citation.]" (Gooden, supra, 42 Cal.App.5th at p. 282, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 493; People v. Anderson (2009) 47 Cal.4th 92, 119 [penalty provisions are not "element[s] of an offense"].) Thus, S.B. 1437 presents yet another "classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative." (Gooden, supra, at p. 282; Kelly, supra, at pp. 1025-1026.)
Proposition 7 repealed and replaced section 190 with the following language: "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.) Proposition 7 also repealed and replaced section 190.2 to "expand the special circumstances which can subject a person convicted of first degree murder to a punishment of death or LWOP." (Gooden, supra, 42 Cal.App.5th at p. 281, citing Prop. 7, §§ 5-6.)
Though more closely related, S.B. 1437 did not amend Proposition 115. As relevant here, Proposition 115 added to the list of predicate felonies giving rise to first degree felony murder under section 189. Because 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," S.B. 1437 neither prohibits what Proposition 115 authorizes, nor authorizes what it prohibits. (Gooden, supra, 42 Cal.App.5th at p. 287; Kelly, supra, 47 Cal.4th at p. 1025.)
Proposition 115 added "kidnapping, train wrecking, or any act punishable under Section 286 [sodomy], 288 [lewd or lascivious acts], 288a [oral copulation], or 289 [forcible acts of sexual penetration]" to the list of predicate felonies under section 189. (Prop. 115, § 9.)
In addition to augmenting the list of predicate felonies for first degree murder, Proposition 115 amended other constitutional provisions and statutes that have not been addressed by the parties or Amicus Curiae. We do not endeavor to address those amendments.
Amicus Curiae argue that because Proposition 115 reenacted section 189 in full, the Legislature was prohibited from later amending the "statutory provisions" of section 189 with a simple majority vote. (See Prop. 115, § 30.) Amicus Curiae contend that by making "substantial changes" to section 189, S.B. 1437 ran afoul of Proposition 115's limitation on legislative amendments. It asserts that "[a]ny other interpretation would require one to conclude that when adding the five additional felonies to Penal Code section 189 . . . the voters were entirely indifferent to the Legislature undermining the amendments by adding significant additional requirements for those very same offenses."
Amicus Curiae's argument and its logic have been rejected by the Supreme Court and our sister court in Gooden. (County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 208 (Commission); Gooden, supra, 42 Cal.App.5th at pp. 287-288.) If any part of a statute is amended, our constitution requires that the statute be reenacted in full. (Cal. Const., art. IV, § 9.) When technical reenactments are required, but do not involve a substantive change to a statutory provision, "the Legislature in most cases retains the power to amend the restated provision. . . . This conclusion applies unless the provision is integral to accomplishing the electorate's goals in enacting the initiative or other indicia support the conclusion that voters reasonably intended to limit the Legislature's ability to amend that part of the statute." (Commission, supra, at p. 214.)
Nothing in the language of Proposition 115 or its ballot materials indicates that the voters intended to address anything other than the types of conduct (as reflected in the list of predicate felonies under section 189) subject to first degree felony murder. That type of criminal conduct is legally (and logically) distinct from the mental states necessary to establish criminal liability under the felony murder rule, or under the natural and probable consequences doctrine. Thus, by enacting S.B. 1437, the Legislature changed a statutory provision "outside the scope of the existing provisions voters plausibly had a purpose to supplant through an initiative." (Commission, supra, 6 Cal.5th at p. 214.) The limiting language in Proposition 115 did not preclude the Legislature's conduct in enacting S.B. 1437. (Gooden, supra, 42 Cal.App.5th at p. 287.)
DISPOSITION
The postjudgment order is reversed. The matter is remanded for further proceedings in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.