Opinion
G058068
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. MINH CONG DO, Defendant and Appellant.
Kevin Smith, 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, as Amicus Curiae on behalf of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C82083) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Elizabeth Macias, Judge. Reversed and remanded. Respondent's request for judicial notice is granted. Kevin Smith, 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, as Amicus Curiae on behalf of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
* * *
Minh Cong Do appeals from the trial court's denial of his Penal Code section 1170.95 petition, which sought an order vacating his 1991 murder conviction and recalling his sentence. Section 1170.95 was enacted in 2018 as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; S.B. 1437), which limits the applicability of aider and abettor liability as it applies to murder and establishes a procedure for vacating prior murder convictions in cases in which the petitioner could not have been convicted under the new law.
All further statutory references are to the Penal Code unless otherwise stated.
The trial court denied Do's petition without reaching the merits, based on its conclusion that S.B. 1437 amounted to an unconstitutional amendment of initiative statutes that were previously approved by the electorate.
Do contends the court erred in reaching that conclusion. The Attorney General has filed an amicus brief supporting his contention. We agree and reverse the order. Both the trial court and the District Attorney on appeal have misapplied the presumption that voters are deemed to be aware of existing laws and judicial constructions in effect at the time an initiative is passed, and by relying on that presumption to conclude that the electorate impliedly approves related laws and judicial decisions in effect when it passes an initiative. That is not the case.
Moreover, the notion that the passage of an initiative statute operates to impliedly approve other existing statutes that relate to the same subject matter, thereby precluding the Legislature from later amending those statutes, misapprehends both the operation of an initiative and the distinctions between initiatives and referendums.
FACTS
Do was convicted of one count of first degree murder and two counts of attempted murder in 1990. The jury also found true that he committed the offenses while armed with a firearm. According to the District Attorney, "Evidence presented at trial indicated [Do] conspired with fellow gang members to kill victims. [Do] was seen pulling out a gun when a fellow gang member said they should kill the victims." Do was sentenced to an indeterminate term of 25 years to life on the first degree murder count, to concurrent terms of 7 years on each of the attempted murder counts, and to a consecutive one-year term for one of the firearm enhancements.
In January 2019, Do filed a petition pursuant to section 1170.95, seeking an order vacating his murder conviction and recalling his sentence.
The District Attorney opposed Do's petition, arguing that S.B. 1437 was unconstitutional because it constituted an improper legislative amendment of two earlier ballot initiatives—Proposition 7 (passed in 1978), which increased the penalties for murder; and Proposition 115 (passed in 1990), which added to the list of crimes that elevate a killing to first degree murder under the felony murder rule. The trial court agreed with the District Attorney and denied the petition without reaching its merits.
DISCUSSION
The determination of whether a legislative enactment is constitutional is a question of law that we review de novo. (Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90.)
Although the District Attorney prevailed below, the burden remains on him to persuade us that S.B. 1437 is unconstitutional. This is because "one of the fundamental principles of our constitutional system of government is that a statute, once duly enacted, 'is presumed to be constitutional. Unconstitutionality must be clearly shown, and doubts will be resolved in favor of its validity.'" (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1086.)
The District Attorney argues for the opposite presumption. Relying on Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1486 (Quackenbush), the District Attorney proposes that "[a]ny doubts should be resolved in favor of the initiative and referendum power" and thus "amendments which may conflict with the subject matter of initiative measures must be accomplished by popular vote, as opposed to legislatively enacted ordinances, where the original initiative does not provide otherwise." We cannot agree.
The Supreme Court authority cited in Quackenbush to support that proposition involved a direct challenge to the electorate's initiative power, rather than a challenge to the constitutionality of subsequent legislation. (See DeVita v. County of Napa (1995) 9 Cal.4th 763, 776; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 ["'[It] has long been our judicial policy to apply a liberal construction to this [initiative] power wherever it is challenged'"].) If this were a case challenging the power of the electorate to enact either Proposition 7 or Proposition 115, we would presume in favor of the validity of those initiatives. However, this case concerns the District Attorney's challenge to the constitutionality of S.B. 1437; it is that statute which enjoys the presumption of validity.
That presumption is difficult to overcome, and other appellate courts, including a separate panel of this court, have already considered and rejected the position advanced here by the District Attorney. (People v. Lamoureux (2019) 42 Cal.App.5th 241; People v. Solis (2020) 46 Cal.App.5th 762; and People v. Cruz (2020) 46 Cal.App.5th 740.) We agree with the analysis contained in those decisions. The District Attorney's argument asks us to interpret the earlier ballot propositions in such an expansive way that they effectively incorporate by reference all existing laws and judicial decisions that bear upon their subject matter, and thus preclude the Legislature from ever changing those laws or decisions. We decline to do so.
Both the District Attorney's argument and the trial court's ruling are based in large part on the assertion that S.B. 1437 changes "the definition" of murder and of malice, and alters the "scope of the Felony Murder Rule," in a way that constitutes an amendment of the statutory provisions approved by the voters in the earlier propositions. In light of those assertions, we begin with a brief review of the felony murder rule and the crime of murder itself, and how both have been impacted by Propositions 7 and 115, and by S.B. 1437.
1. Murder Defined
"Section 187, subdivision (a), defines [the crime of] murder as 'the unlawful killing of a human being, or a fetus, with malice aforethought.' Except for the phrase 'or a fetus,' which was added in 1970 . . . [citation], this definition has been unchanged since section 187 was first enacted as part of the Penal Code of 1872." (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).)
Section 188 defines the word "malice" as it relates to murder, stating that "malice may be express or implied" (§ 188, subd. (a)) and that malice "is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature" (id., subd. (a)(1)), and is "implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart" (id., subd. (a)(2)).
Section 189 divides the crime of murder into two degrees: first and second. It defines "first degree" murder as including those killings perpetrated by specific means (e.g., a destructive device or explosive, lying in wait or torture), as well as "any other kind of willful, deliberate, and premeditated killing." (§ 189, subd. (a).)
First degree murder also includes any killing "committed in the perpetration of, or attempt to perpetrate" any of a list of specified crimes (e.g., arson, rape, carjacking, or mayhem). (§ 189, subd. (a).) That category of first degree murder comprises what is known as "felony murder."
Section 189 specifies that all murders not designated as first degree "are of the second degree." (§ 189, subd. (b).)
2. Aider and Abettor Liability
A person's culpability for murder can be affected by rules that are not specific to the crime of murder. One such law is the general aider and abettor rule, which extends culpability for a crime to a person who did not personally commit it. As stated in section 31, "[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed." When aider and abettor principles are applied to the question of criminal culpability, "'[w]e euphemistically may impute the actions of the perpetrator to the accomplice by "agency" doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual.'" (People v. Prettyman (1996) 14 Cal.4th 248, 259, italics added.)
As explained by our Supreme Court in People. v. Chiu (2014) 59 Cal.4th 155, 158, "[t]here are two distinct forms of culpability for aiders and abettors. 'First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted."'"
Whether the charged offense is a natural and probable consequence of an intended crime does not depend on whether the aider and abettor personally foresaw the nontarget offense, let alone intended it. Rather, liability '"is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted."" (People v. Medina (2009) 46 Cal.4th 913, 920.)
3. Propositions 7 and 115
In 1978, the California electorate passed Proposition 7 as an initiative measure. "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." (Cal. Const., art. II, § 8, subd. (a).) An initiative proposition must "set[] forth the text of the proposed statute." (Cal. Const., art. II, § 8, subd. (b).)
Proposition 7 amended section 190. The proposition increased the penalties for both first and second degree murder. It did not amend any of the statutes that define the crime itself. Specifically, Proposition 7 mandated that every person convicted of first degree murder be sentenced to death, life in prison without the possibility of parole, or to confinement in prison for a term of 25 years to life. And it mandated that every person convicted of second degree murder be sentenced to an indeterminate term of 15 years to life. (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7, § 2, p. 33 (Prop. 7 Pamp.).)
Proposition 7 also amended sections 190.1-190.5 to expand the list of special circumstances that would require a person convicted of first degree murder to be sentenced to either death or life in prison without the possibility of parole—rather than the indeterminate term of 25 years to life—and it revised the list of aggravating and mitigating circumstances to be considered when determining the appropriate sentence for a person convicted of first degree murder. (Prop. 7 Pamp., supra, text of Prop. 7, §§ 3-12, pp. 33, 41-46.)
The Legislative Analyst's analysis of Proposition 7, provided to voters in the ballot pamphlet, summarized the enhanced penalties that could be imposed for murder under the proposed law, as well as the expanded list of special circumstances that would require a sentence of either death or life in prison without parole. The analysis did not redefine murder in any way, nor did it impact the means by which the crime of murder could be proved. The analysis did allude to the existence of aider and abettor liability in connection with murder, noting that "persons involved in the crime other than the actual murderer" could be subjected to enhanced penalties "under specified circumstances." (Prop. 7 Pamp., supra, p. 32.) No further discussion was included.
The arguments for and against Proposition 7—which were also included in the ballot pamphlet provided to voters—focused exclusively on the death penalty; they made no mention of the other penalties for murder also provided for in the proposed law. The arguments did not discuss the definition of murder or the means by which it might be proved; they did acknowledge that someone other than the actual killer could be found culpable for murder, and referenced felony murder. Specifically, in the "Argument Against Proposition 7," opponents wrote that a person could qualify for an enhanced murder penalty merely for "lending another person a screwdriver to use in a burglary, if the other person accidentally killed someone during the burglary." In their reply, the proposition's proponents rejected that notion insisting that "the person must have INTENTIONALLY aided in the commission of a murder to be subject[ed] to the death penalty under this initiative." (Prop. 7 Pamp., supra, p. 35.)
Because it was passed as an initiative measure, specific statutory provisions included in Proposition 7 cannot be amended by the Legislature unless the terms of the proposition authorized such legislative amendment. (Cal. Const., art. II, § 10(c) ["The Legislature may amend or repeal an initiative statute [only if] the initiative statute permits amendment or repeal without the electors' approval"].) Proposition 7 included no such authorization.
In 1990, the California electorate passed Proposition 115, also as an initiative measure. Among the other "numerous, significant and complex changes in criminal law" it effected, Proposition 115 amended section 189 to add five new crimes to the list of serious felonies that would qualify to elevate a killing to first degree murder under the felony murder rule. (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115, § 9, p. 66 (Prop. 115 Pamp.).) The analysis of Proposition 115 provided to the electorate by the Legislative Analyst referenced the newly added felony murder crimes, stating that the proposition "[e]xpands the definition of first-degree murder to include murder committed during the commission or attempted commission of additional serious crimes." The analysis did not otherwise address "the definition of first-degree murder," or explain the means by which that crime could be proved. (Prop. 115 Pamp., supra, p. 32.) The ballot arguments for and against Proposition 115 failed to address its amendment of section 189. (Id. at pp. 34-35.)
Proposition 115 included a provision limiting the Legislature's authority to amend "[t]he statutory provisions contained in this measure," allowing it to do so only "by a statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by electors." (Prop. 115 Pamp., supra, text of Prop. 115, § 30, p. 69.)
4. S.B. 1437
The purpose of S.B. 1437, which became effective on January 1, 2019, was 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).)
Specifically, S.B. 1437 precluded reliance on "imputed malice"—an aider and abettor or accomplice concept—to establish culpability for murder, when it is "based solely on [a defendant's] participation in a crime." (§ 188, subd. (a)(3).)
"[I]f malice is an element of a charged offense, accomplice liability under the natural and probable consequences doctrine necessarily entails the imputation of malice." (People v. Larios (2019) 42 Cal.App.5th 956, 965, italics added.) This is because "'aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense [i.e., a murder] because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense.'" (People v. Chiu, supra, 59 Cal.4th at p. 164.)
S.B. 1437 also amended section 189—the statute that distinguishes between degrees of murder and defines felony murder—but the amendment altered neither the statute's definition of felony murder nor the list of crimes that that will elevate a murder to first degree under the felony murder rule. Instead, the amendment limited the extent to which aider and abettor concepts can be relied upon to establish culpability for felony murder—an issue not addressed in any prior version of the statute. The added language clarifies that the felony murder rule applies to any defendant who directly kills a victim in the course of a listed felony, to any aider and abettor who shared the intent to kill, and to any "major participant in the underlying felony" who "acted with reckless indifference to human life." (§ 189, subd. (e)(3).)
S.B. 1437 also added section 1170.95, which authorizes the procedure through which a convicted murderer—including Do in this case—can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
5. Legislative Amendment of an Initiative Statute
Although our Constitution vests legislative power in the Legislature, it reserves to the electorate "the powers of initiative and referendum." (Cal. Const., art. IV, § 1.) As we have already noted, "[t]he initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." (Cal. Const., art. II, § 8(a).) By contrast, "[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes . . . ." (Cal. Const., art. II, § 9(a).)
Although the initiative and referendum powers are liberally construed in favor of their exercise (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591), the electorate's use of these powers is not unlimited. "Even under the most liberal interpretation . . . , the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body. Those powers are limited . . . to the adoption or rejection of 'statutes.'" (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 708.) "[A]n initiative which seeks to do something other than enact a statute—which seeks to render an administrative decision, adjudicate a dispute, or declare by resolution the views of the resolving body—is not within the initiative power reserved by the people." (Id. at p. 714.)
The Supreme Court has described the amendment of an initiative statute as "a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision." (People v. Cooper (2002) 27 Cal.4th 38, 44.) As the Supreme Court explained, not all legislation concerning "the same subject matter as an initiative, or even augment[ing] an initiative's provisions, is necessarily an amendment" to the initiative. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson).) Instead, "'[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.)
The District Attorney relies on Quackenbush, supra, 64 Cal.App.4th at pp. 1484-1485) for the much broader rule that "a legislative statute amends an initiative statute when it changes the 'scope or effect' of an initiative." We are bound by the more recent Supreme Court precedent.
In Pearson, the Supreme Court considered whether legislation authorizing postconviction discovery in certain criminal cases constituted an impermissible amendment to another provision of Proposition 115, which had added a new chapter to the Penal Code governing discovery in criminal cases—including a statute specifying "that '[n]o order requiring discovery shall be made in criminal cases except as provided by this chapter.'" (Pearson, supra, 48 Cal.4th at p. 567.) In concluding that the new legislation was not an impermissible amendment of Proposition 115's discovery limitation, the Supreme Court explained that the electorate, in passing Proposition 115, had been concerned only with discovery in connection with a criminal trial, and did not intend "either to provide for or to prohibit [posttrial] discovery in a separate habeas corpus matter." (Id. at pp. 572-573.) Thus, the subsequent legislation "addresses an area that is related to Proposition 115's discovery provisions but, crucially, it is also a distinct area" and consequently, it was not an impermissible amendment of Proposition 115. (Id. at p. 573.)
As the Supreme Court explained in Pearson, a reviewing court determines whether the legislation amends an initiative statute by focusing on whether the legislation "prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.) This determination requires the court to "decide what the voters contemplated" in passing the initiative because the "'voters should get what they enacted, not more and not less.'" (Ibid., italics added.) With that in mind, we turn our attention to S.B. 1437.
6. S.B. 1437; Impact on Propositions 7 or 115
In determining what the voters contemplated when they enacted initiative statutes, "[w]e 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.)
When that analysis is applied to Propositions 7 and 115, it provides no support for the conclusion that the electorate was contemplating the application of aider and abettor law—and specifically the scope of the natural and probable consequences doctrine—to the crime of murder, as it voted on either initiative. Neither of those concepts is mentioned anywhere in the language of either ballot proposition. As we have already noted, the ballot summary and arguments relating to Proposition 7 do refer to the possibility that someone other than the killer can be held culpable for a murder—with the proponents denying that the stricter sentencing laws could apply to anyone who did not personally intend the killing. But nowhere do they define or explain the parameters of that rule. And that possibility is not even alluded to in the ballot materials accompanying Proposition 115. There is nothing in any of those materials to suggest voters had those complex points of law in mind when they approved either Proposition 7 or Proposition 115.
The District Attorney's argument to the contrary rests on his assertion that we must construe the electorate's intent in approving an initiative by considering not only the text of the initiative itself, supported by the ballot materials (as Pearson states), but also the entire body of law relating to its subject—both statutory and decisional—when the initiative was passed. He posits that because the voters were presumptively aware of that existing body of law when they passed the initiative propositions, they implicitly contemplated and approved it when they voted in favor of the propositions. The Legislature is therefore prohibited from changing it. The breadth of that assertion is staggering; it is also fatally flawed. Moreover, as we will explain, even if the District Attorney's contention were correct, it would not invalidate S.B. 1437.
The District Attorney grounds his argument on the premise that "[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted." (People v. Weidert (1985) 39 Cal.3d. 836, 844 (Weidert); see Long Beach v. Payne (1935) 3 Cal.2d 184, 191 (Payne); Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1332 ["[b]oth the Legislature and the electorate by the initiative process are deemed to be aware of laws in effect at the time they enact new laws and are conclusively presumed to have enacted the new laws in light of existing laws having direct bearing upon them"].)
We agree with that proposition as far as it goes; however its scope is wrongly extended by the District Attorney here.
The presumption that an enacting body was aware of existing laws at the time it enacted a statute is "a well-recognized tool of construction" (Payne, supra, 3 Cal.2d at p. 191), which is intended to be used in interpreting the legal effect of a statute when its meaning is disputed. Thus, in Weidert, the Supreme Court relied upon the presumption in concluding that the phrase "criminal proceedings" as used in Proposition 7 could not be interpreted to include juvenile proceedings because separate statutes had long specified that "'a proceeding in the juvenile court [shall not] be deemed a criminal proceeding.'" (Weidert, supra, 39 Cal.3d. at p. 844, italics omitted.) And in Payne, the presumption was relied upon by the court as it concluded the Legislature's use of the word "highways" in a funding act included canals, in accordance with an earlier Supreme Court precedent defining that term. (Payne, supra, 3 Cal.2d at p. 191.)
In this case, on the other hand, there is no dispute about the legal effect of any words or provisions contained in either Proposition 7 or Proposition 115—and thus there is no role to be played here by a rule that allows us to draw inferences about the meaning of those words or provisions from existing laws and controlling judicial decisions. What the District Attorney has done is an attempt to turn that rule of construction on its head by arguing that the passage of Propositions 7 and 115 can be used to draw inferences about other laws that were in effect when the propositions were approved—i.e., that voters impliedly approved those other laws in a manner intended to preclude the Legislature from thereafter changing them. There is no basis for such a leap, either factually or legally, and we refuse to make it.
Indeed, while we may say we presume voters are aware of existing laws in various contexts—e.g., when interpreting the legal effect of their legal agreements (see Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93-94 (Roldan)) or enforcing their compliance with the laws (see Arthur Anderson v. Superior Court (1998) 67 Cal.App.4th 1481, 1507), such presumptions are in reality "legal fictions." (Roldan, supra, at p. 94; People v. Najera (2006) 138 Cal.App.4th 212, 220 ["A legal fiction is an 'assumption that something is true even though it may be untrue, made esp. in judicial reasoning to alter how a legal rule operates'"].) Such presumptions are employed for practical reasons. (See e.g., Arthur Anderson, supra, at p. 1507 ["the legal effect of a statute cannot be avoided merely by pleading ignorance of the statute. If it could, the Legislature's efforts to shape public policy and the judiciary's efforts to interpret the statutory law and to shape the common law could easily be frustrated either by deliberate maintenance of ignorance or false claims of it"].)
The fact a presumption may exist for certain purposes does not justify its application in all situations. (See In re Chantal S. (1996) 13 Cal.4th 196, 201 ['"The presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases"'].) We do not presume criminal defendants are "aware of the law" when they are arrested or charged with a crime. We require that they be affirmatively advised of their legal rights at the outset of the prosecution, before they undergo any custodial interrogation, and before entering a guilty plea. (See People v. Bradford (1997) 14 Cal.4th 1005, 1033 ["'Failure to administer Miranda warnings creates a presumption of compulsion'"]; People v. Tahl (1969) 1 Cal.3d 122, 132 ["each of the three rights mentioned—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea"].)
Similarly, when it comes to enacting legislation, we do not presume the enactors (whether the Legislature or the electorate) have a perfect command of statutory provisions that are not actually before them. Our Constitution requires that when a statute is being amended, the entirety of the statute must be placed before the enactors—to be reenacted in full—because of the concern they might otherwise be misled by any omissions. (Cal. Const., art. IV, § 9.) As our Supreme Court explains, "[t]he rationale for compelling reenactment of an entire statutory section when only a part is being amended is to avoid '"the enactment of statutes in terms so blind that legislators themselves [are] . . . deceived in regard to their effect'" and the risk that '"the public, from the difficulty of making the necessary examination and comparison, failed to become appr[ ]ised of the changes made in the laws."'" (County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 208.)
It is because of the concern that electors might not otherwise have an accurate understanding of even the very statute they are amending, that "a substantial part of almost any statutory initiative will include a restatement of existing provisions with only minor, nonsubstantive changes—or no changes at all." (County of San Diego v. Commission on State Mandates, supra, 6 Cal.5th at p. 208.)
The recognition that it is unfair to presume voters have a command of materials not before them when they enact a statute is consistent with Pearson's requirement that we should assess the electorate's understanding of an initiative statute by looking to the text of the initiative itself, as well as the ballot materials that accompany it. We consequently reject the District Attorney's assertion that when the electorate passed Proposition 7 and Proposition 115, it was presumptively contemplating the entire body of law affecting murder culpability, including "the long-standing definition of malice" for purposes of murder, "the longstanding judicial interpretation that murder statues apply to defendants where the malice necessary for murder was imputed to an accomplice based solely on his or her participation in a crime, " and "the firmly rooted interpretation of Penal Code section[s] 188 and 189 for murder liability under felony murder and [the] natural and probable consequences [doctrine]." There is nothing in the text of either proposition, nor in the ballot materials provided to the voters related to them, that supports such an assertion.
We also reject the District Attorney's related contention that S.B. 1437 "redefine[ed] how implied malice may be proved." S.B. 1437 did not alter implied malice as defined by section 188. Instead, as we have already explained, it restricted the use of imputed malice, which is an aspect of aider and abettor law, to establish culpability for murder. Implied malice and imputed malice are not the same thing.
Implied malice examines the acts and mental state of the defendant to kill the victim (Chun, supra, 45 Cal.4th at p. 1181), and requires that the defendant "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life" (ibid., italics added). However, imputed malice does not necessarily require any examination of the defendant's own mental state in relation to the killing; rather, it is based primarily on the defendant's relationship with the killer: "'By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense [i.e., a murder] because the nontarget offense was not intended at all. It imposes vicarious liability . . . .'" (People v. Chiu, supra, 59 Cal.4th at p. 164.) "It follows that if malice is an element of a charged offense, accomplice liability under the natural and probable consequences doctrine necessarily entails the imputation of malice." (People v. Larios, supra, 42 Cal.App.5th at p. 965.)
Finally, we reject the District Attorney's suggestion that Propositions 7 and 115 should be understood as expressing a more general policy favoring increased culpability for murder, and thus S.B. 1437 should be rejected as a violation of that voter-approved policy. An initiative is a means of enacting a statute, nothing more. Thus S.B. 1437 runs afoul of these initiative statutes only if it alters their specific provisions in some way. It does not.
If we accept the District Attorney's assertion that the passage of an initiative statute implies the electorate's approval of all existing laws and judicial decisions affecting it—and thus precludes subsequent legislative alterations of any of them—the scope of such a rule is nearly incalculable. Here, for example, the assertion that the scope of murder culpability was frozen by Proposition 7 in 1978, and then again by Proposition 115 in 1990, suggests that section 29.8, a statute enacted by the Legislature in 1994 to limit a defendant's reliance on a plea of "not guilty by reason of insanity," must be invalid as applied to the crime of murder. We doubt the District Attorney contemplated such a result.
Section 29.8, which, like the aider and abettor law, applies generally to all crimes states: "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances. This section shall apply only to persons who utilize this defense on or after the operative date of the section."
There is a final reason why the District Attorney's challenge to S.B. 1437 must fail, even if we accepted his main premise that the enactment of an initiative statute demonstrates the electorate's implicit approval of all existing statutes that affect the general subject matter it embraces. Our Constitution distinguishes between the electorate's power of initiative, which is its power to enact new statutes (or amend existing ones) and its power of referendum, which is its power to approve or disapprove existing statutes.
The Constitution recognizes no right of the electorate to approve or disapprove judicial decisions, except that the electorate may enact new statutes to counteract those decisions through the initiative process.
Consequently, to the extent the electorate intended to approve other existing statutes governing culpability for murder when it enacted either Proposition 7 or Proposition 115, then those propositions would qualify as referenda, rather than initiatives. Because "[t]he Legislature may amend or repeal a referendum statute" (Cal. Const., art. II, § 10(c)), the electorate's approval of existing statutes in a ballot proposition would not preclude the Legislature from later altering those statutes.
For all of the foregoing reasons, we reject the District Attorney's assertion that S.B. 1437 constitutes an unlawful amendment of the initiative statutes passed by either Proposition 7 or Proposition 115.
The District Attorney's request that we take judicial notice of voter pamphlets and other materials related to Propositions 7 and 115, Senate Bill No. 1437, and Penal Code sections 187, 188, and 189 is granted.
DISPOSITION
The order is reversed and the case is remanded with directions to consider Do's petition on the merits.
GOETHALS, J. WE CONCUR: IKOLA, ACTING P. J. THOMPSON, J.