Opinion
B297722
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. KAREEM JAMAL BROWN, Defendant and Appellant.
Waldemar D. Halka, 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, and Idan Ivri and Roberta L. Davis, Deputy Attorneys General for Plaintiff and Respondent. Mark Zahner for California District Attorneys Association; Michael A. Hestrin, District Attorney (Riverside), and Alan D. Tate, Lead Deputy District Attorney; Jason Anderson, District Attorney (San Bernardino), and James R. Secord, Deputy District Attorney for Counties as Amici 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA028967) APPEAL from an order of the Superior Court of Los Angeles County, Salvatore T. Sirna, Judge. Affirmed in part, reversed in part, and remanded with directions. Waldemar D. Halka, 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, and Idan Ivri and Roberta L. Davis, Deputy Attorneys General for Plaintiff and Respondent. Mark Zahner for California District Attorneys Association; Michael A. Hestrin, District Attorney (Riverside), and Alan D. Tate, Lead Deputy District Attorney; Jason Anderson, District Attorney (San Bernardino), and James R. Secord, Deputy District Attorney for Counties as Amici Curiae on behalf of Plaintiff and Respondent.
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INTRODUCTION
Kareem Jamal Brown appeals from the trial court's order denying his petition under Penal Code section 1170.95, a provision of recently enacted Senate Bill No. 1437, to vacate his conviction for murder and his conviction for attempted murder. Brown contends the trial court erred in denying his petition on the ground Senate Bill No. 1437 violates the California Constitution. Brown also contends the trial court erred in ruling section 1170.95 does not provide relief for a defendant convicted of attempted murder. We agree with Brown's first contention and conclude he is entitled to relief on his conviction for murder. We disagree, however, with Brown's second contention and conclude he is not entitled to relief on his conviction for attempted murder. Therefore, we vacate his conviction for murder, affirm his conviction for attempted murder, and remand for resentencing.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Jury Convicts Brown, the Trial Court Sentences Him, and This Court Affirms
In August 1995 three men, two of whom were armed, tried to rob a bank in Pomona. As they entered the bank, one of the men shot at a security guard, who escaped unharmed. Two of the men then jumped over the teller counter, grabbed a bank employee, and ordered her to open the safe. When the employee dropped her keys, one of the men, thinking she was activating an alarm, shot her in the back, killing her. The three men ran out of the bank, got into a car, and drove away. Brown, who had been waiting nearby in a second getaway car, drove away with them. In exchange for a share of the proceeds from the robbery, Brown had also supplied the gun used to kill the bank employee. The police eventually arrested Brown and the other three men.
The People charged all four men with the murder of the employee (§ 187, subd. (a)), the attempted willful, deliberate, and premeditated murder of the security guard (§§ 187, subd. (a), 664), and the attempted robbery of the bank (§§ 211, 664). With the murder charge, the People alleged the special circumstance that the defendants committed the offense while engaged in the commission of a robbery, for which the penalty is death or imprisonment for life without the possibility of parole (§ 190.2, subd. (a)(17)). With the attempted robbery charge, the People alleged one of the defendants personally used a firearm within the meaning of section 12022.5, subdivision (a). With all the charged offenses, the People alleged, pursuant to section 12022, subdivision (d), that a principal was personally armed with a firearm during the commission of the offense and that all the defendants who were not personally armed knew this.
The jury convicted all defendants on all charges and found true the special circumstance allegation and firearm allegations. In September 1996 the court sentenced Brown on the conviction for murder to a prison term of life without the possibility of parole, on the conviction for attempted willful, deliberate, and premeditated murder to a concurrent term of life in prison, and on the conviction for attempted robbery to a term of 4 years in state prison, stayed pursuant to section 654. Brown appealed, and this court affirmed his convictions, but corrected errors relating to the sentence on the attempted robbery conviction.
B. Years Later, This Court Grants Brown's Petition for Writ of Habeas Corpus
In January 2018 this court granted a petition by Brown for writ of habeas corpus (In re Brown (Jan. 24, 2018, B280819) [nonpub. opn.]), in which Brown relied on recent decisions by the California Supreme Court to challenge the sentence on his murder conviction of life without the possibility of parole on the ground insufficient evidence supported the special circumstance finding. In one of those decisions, People v. Banks (2015) 61 Cal.4th 788, the Supreme Court held that, "[i]n the case of first degree felony murder, 'every person, not the actual killer, who, with reckless indifference to human life and as a major participant' aids or abets the crime may be convicted of special circumstance murder." (Id. at p. 798.) A second decision, People v. Clark (2016) 63 Cal.4th 522, provided guidance on applying the concept of "reckless indifference to human life." (See id. at pp. 609-623.) Guided by Banks and Clark, this court concluded the evidence did not support a finding Brown acted with reckless indifference to human life. We therefore vacated the true finding on the special circumstance allegation in connection with the murder conviction and modified Brown's sentence on that conviction to a term of 25 years to life.
C. Brown Files a Petition Under Section 1170 .95
On September 30, 2018 the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. (See People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-249 (Lamoureux).) Senate Bill No. 1437 "amend[ed] 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).) The Legislature accomplished this change in the law through amendments to sections 188 and 189. (Lamoureux, at pp. 248-249.) The Legislature also added section 1170.95, which provides a procedure for those convicted of murder to seek relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4; Lamoureux, at p. 249.)
In January 2019 Brown petitioned under newly enacted section 1170.95 to vacate his convictions for murder and attempted murder. Concerning the former, he argued he was entitled to relief because the jury convicted him on a felony murder theory and this court had since determined, in granting his habeas petition, he had not acted with reckless indifference to human life. He argued he was entitled to relief on the attempted murder conviction because the jury relied on the natural and probable consequences doctrine. The People opposed the petition on the ground that, in several respects, Senate Bill No. 1437 violated the California Constitution.
The trial court denied Brown's petition. The court ruled Senate Bill No. 1437 was unconstitutional because it impermissibly amended Proposition 7, a voter initiative that increased the punishments for persons convicted of murder (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978) (Proposition 7)), impermissibly amended Proposition 115, a voter initiative that augmented the list of predicate offenses for first degree felony murder (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990) (Proposition 115)), and violated article I, sections 28(a)(6) and 29 of the California Constitution, which provide that "[v]ictims of crime are entitled to finality in their criminal cases" and that, "[i]n a criminal case, the people of the State of California have the right to due process of law." The court also ruled Brown's attempted murder conviction did not qualify for consideration under section 1170.95. Brown timely appealed.
The trial court cited article II, section 10, subdivision (c), of the California Constitution, which provides that "[t]he 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."
DISCUSSION
A. Senate Bill No. 1437
To effectuate its amendments to the felony murder rule and the natural and probable consequences doctrine as the latter relates to murder, Senate Bill No. 1437 "'added a crucial limitation' to section 188, the statutory provision that defines malice for purposes of murder. [Citation.] As amended, section 188 provides in pertinent part as follows: 'Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.'" (Lamoureux, supra, 42 Cal.App.5th at pp. 248-249.)
In turn, "[s]ection 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense 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, aided, 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 . . . .'" (Lamoureux, supra, 42 Cal.App.5th at p. 248.)
Senate Bill No. 1437 also added section 1170.95, which provides that 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 on any remaining counts 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 to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a); see People v. Ramirez (2019) 41 Cal.App.5th 923, 927 (Ramirez) [section 1170.95 "created a procedure whereby a person whose felony murder conviction was final, but who could not have been convicted under the amended statutes, could petition to have the conviction vacated"].)
A petition under section 1170.95 "must include the petitioner's declaration showing eligibility under all three enumerated conditions, as well as the superior court case number, year of conviction, and any request for appointment of counsel. (§ 1170.95, subd. (b)(1).) Section 1170.95, subdivision (c), requires the superior court to review the petition and determine whether the petitioner has made a prima facie showing of entitlement to relief. Unless time is extended for good cause, the prosecutor must file a response and the petitioner may file a reply within specified time limits. (§ 1170.95, subd. (c).)" (Ramirez, supra, 41 Cal.App.5th at p. 929.)
"A prima facie showing of eligibility triggers the trial court's obligation to issue an order to show cause and either hold a hearing, give the parties an opportunity [to] waive a hearing and stipulate to eligibility, or '[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner.' (§ 1170.95, subd. (d)(2); see subds. (c), (d)(1).) If a hearing is held, the prosecution has the burden to prove beyond a reasonable doubt, that petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution fails to sustain its burden of proof the trial court is required to vacate the prior conviction and resentence the petitioner on the remaining charges. (§ 1170.95, subd. (d)(3).)" (Ramirez, supra, 41 Cal.App.5th at p. 929.)
B. The Trial Court Erred in Denying Brown's Petition To Vacate His Conviction for Murder
The trial court denied Brown's petition to vacate his murder conviction because it determined Senate Bill No. 1437 is unconstitutional. Brown contends, the People now concede, and we agree the trial court's ruling was incorrect: Senate Bill No. 1437 does not violate the California Constitution. As the People acknowledge, "recent decisions correctly resolved these questions" about Senate Bill No. 1437's constitutionality. (See People v. Prado (May 26, 2020, G058172) ___Cal.App.5th ___, ___ [2020 WL 2730876, p. 8] ["the Legislature did not violate the constitutional limitation on amending or repealing an initiative statute when it passed Senate Bill 1437"]; People v. Smith (May 15, 2020, B298642) ___ Cal.App.5th ___, ___ [2020 WL 2537482, p. 3] ["Senate Bill 1437 does not unconstitutionally amend section 190"]; People v. Bucio (2020) 48 Cal.App.5th 300, 307 ["[Senate Bill No.] 1437 is constitutional"]; People v. Solis (2020) 46 Cal.App.5th 762, 769 [Senate Bill No. 1437 does not unconstitutionally amend Proposition 7 or Proposition 115 because it "does not authorize anything the two initiatives prohibited, nor prohibit anything they authorized"]; 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. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275 ["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"]; Lamoureux, supra, 42 Cal.App.5th at p. 246 ["Senate Bill 1437 did not invalidly amend Proposition 7 or Proposition 115" and "does not contravene separation of powers principles or violate the rights of crime victims"].)
"The interpretation of a statute and the determination of its constitutionality are questions of law," and "[i]n such cases, appellate courts apply a de novo standard of review." (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445; see People v. Tran (2015) 61 Cal.4th 1160, 1166 ["We review de novo questions of statutory construction."]; People v. Solis (2020) 46 Cal.App.5th 762, 771 ["We review questions regarding the constitutionality of a statute de novo."].)
In an amicus brief in support of the People "(but not supporting [the] position taken by the Attorney General)," the California District Attorneys Association and the District Attorneys of Riverside and San Bernardino Counties argue that Gooden, supra, 42 Cal.App.5th 270 and Lamoureux, supra, 42 Cal.App.5th 241 were wrongly decided and that Senate Bill No. 1437 is unconstitutional for the reasons stated by the trial court. We agree with Gooden, Lamoureux, and the other cases that have upheld the constitutionality of Senate Bill No. 1437.
The People further concede, and we agree, that under Senate Bill No. 1437 Brown is entitled to relief on his murder conviction. In his declaration in support of his petition, Brown made the requisite prima facie showing he was entitled to relief on that conviction. (See § 1170.95, subds. (b)(1), (c); Ramirez, supra, 41 Cal.App.5th at p. 929.) The People acknowledge, moreover, that "[f]elony murder was the sole theory of first degree murder here" and that, because this court previously determined Brown did not act with reckless indifference to human life, his murder conviction must be vacated under section 1170.95, subdivision (d)(2). (See § 1170.95, subd. (d)(2) ["[i]f there was a prior finding by a court . . . that the petitioner did not act with reckless indifference to human life . . . , the court shall vacate the petitioner's conviction"]; Ramirez, at p. 932 [section 1170.95, subdivision (d)(2), "impos[es] a mandatory duty on the court to vacate defendant's sentence and resentence him whenever there is a prior finding of this court that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life"].) Because section 1170.95, subdivision (d)(2), required the trial court to vacate Brown's murder conviction and resentence him on the remaining counts, we direct the court to do so on remand. (See Ramirez, at p. 933.)
C. The Trial Court Did Not Err in Denying Brown's Petition To Vacate His Conviction for Attempted Murder
In addition to denying Brown's petition on the ground Senate Bill No. 1437 is unconstitutional, the trial court denied Brown's petition to vacate his attempted murder conviction on the ground an attempted murder conviction does not qualify for relief under section 1170.95. In People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, S258175, this court reached the same conclusion. (Id. at pp. 1103-1107 [Senate Bill No. "1437 does not modify accomplice liability for attempted murder"]; see also People v. Dennis (2020) 47 Cal.App.5th 838, 844 ["Senate Bill [No.] 1437 does not apply to convictions for attempted murder, as opposed to murder"]; People v. Munoz (2019) 39 Cal.App.5th 738, 753 [citing Lopez and concluding "Senate Bill 1437 does not apply to the offense of attempted murder"], review granted Nov. 26, 2019, S258234; People v. Larios (2019) 42 Cal.App.5th 956, 961 [disagreeing "with the Lopez and Munoz decisions on the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder," but agreeing "with their ultimate conclusion that section 1170.95 provides no relief for the crime of attempted murder"], review granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008 [concluding Senate Bill No. 1437 abrogated the continuing application of the natural and probable consequences doctrine to the charge of attempted murder, but "agree[ing] with Lopez and Munoz that the petitioning procedure added in section 1170.95 does not apply to attempted murder"], review granted Mar. 11, 2020, S259948.)
The Supreme Court granted review in Lopez, supra, 38 Cal.App.5th 1087 on the following issues: (1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?
As we explained in Lopez, supra, 38 Cal.App.5th at page 1104: "[T]here is nothing ambiguous in the language of [Senate Bill No.] 1437, which, in addition to the omission of any reference to attempted murder, expressly identifies its purpose as the need 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder . . . .'" And "[t]he Legislature's obvious intent to exclude attempted murder from the ambit of [Senate Bill No.] 1437 reform is underscored by the language of new section 1170.95 . . . . Section 1170.95, subdivision (a), authorizes only those individuals 'convicted of felony murder or murder under a natural and probable consequences theory' to petition for relief; and the petition must be directed to 'the petitioner's murder conviction.'" (Lopez, at pp. 1104-1105.)
As we further observed in Lopez, the "plain language meaning of [Senate Bill No.] 1437 as excluding any relief for individuals convicted of attempted murder is fully supported by its legislative history." (Lopez, supra, 38 Cal.App.5th at p. 1105.) We explained there were "certainly rational" reasons for the Legislature "to limit sentencing reform at this time to offenders in cases of murder," including, for example, consideration of the administrative cost and the judiciary's limited resources. (Id. at pp. 1111-1112; see People v. Larios, supra, 42 Cal.App.5th at p. 970 ["there is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions"].) Because Brown was not entitled to relief under Senate Bill No. 1437 on his attempted murder conviction, the trial court did not err in denying his petition to vacate that conviction under section 1170.95.
DISPOSITION
The trial court's order denying Brown's petition to vacate his murder conviction is reversed, and the court's order denying his petition to vacate his attempted murder conviction is affirmed. The matter is remanded with directions for the court to grant the petition as to the murder conviction, vacate that conviction, and resentence Brown on the remaining counts.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.