BAMATTRE-MANOUKIAN, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS102246A)

I. INTRODUCTION

In 2011, defendant Johnny Angel Martinez pleaded no contest to second degree murder (Pen. Code, § 187, subd. (a)) and was sentenced to 15 years to life. In 2019, defendant petitioned for resentencing pursuant to section 1170.95, which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (S.B. 1437) and allows individuals convicted of felony murder or murder under the natural and probable consequences doctrine to petition the superior court to vacate the conviction based on S.B. 1437's changes to the definition of the crime of murder. The superior court denied defendant's petition, determining that S.B. 1437 unconstitutionally amended Propositions 7 and 115.

For reasons that we will explain, we will reverse the order and remand the matter for consideration of defendant's section 1170.95 petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On May 29, 2000, Salinas police found a man lying in the road after responding to a report of shots fired. The man was pronounced dead at the scene. Based on information from a confidential informant, police contacted defendant in 2001 about the offense, but defendant denied involvement.

On August 10, 2010, defendant went to the police department and requested to speak to a detective about a homicide. During the subsequent police interview, defendant stated that in June or July 2000, he tried to rob someone in front of a bar and when the man did not cooperate, he shot him in the back.

Defendant admitted that he had been associated with a Norteño street gang at the time but stated that he committed the homicide alone. The officer interviewing defendant knew that someone else had already confessed to involvement in the homicide and had implicated defendant and another man. The officer continued to ask defendant if others had participated in the crime.

Defendant stated that he and other street gang members decided to commit a robbery. Defendant drove two fellow gang members to an alley and waited in the car. Defendant knew the others were going to commit a robbery and knew that one of them was armed. Thirty seconds after the other gang members had gotten out of the car, defendant heard a gunshot. Afterwards, defendant drove the gang members to his house. Defendant identified the other individuals involved in the offense.

B. Procedural History

Defendant was charged with felony murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). The information also alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1)) and that defendant had served a prior prison term (§ 667.5, subd. (b)).

Defendant pleaded no contest to second degree murder (§ 187, subd. (a)). The court sentenced defendant to 15 years to life and dismissed the remaining charges. Defendant did not appeal from the judgment.

On January 30, 2019, defendant, represented by counsel, filed a petition for resentencing pursuant to section 1170.95. Defendant claimed he was entitled to have his murder conviction vacated and to be resentenced on the remaining offense based on S.B. 1437's changes to sections 188 and 189. The district attorney filed an opposition to the petition, conceding that defendant met the requirements of section 1170.95 because he could no longer be convicted of murder based on changes to the law, but arguing that S.B. 1437 was unconstitutional because it unlawfully amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)). Defendant filed a response, contending the district attorney's constitutional challenge to the law was meritless.

The superior court heard the matter on June 13, 2019. The district attorney reaffirmed her position that defendant was eligible for resentencing but that S.B. 1437 was unconstitutional because it improperly amended Propositions 7 and 115. The district attorney also argued that S.B. 1437 unlawfully amended Proposition 9 (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008)), commonly known as Marsy's Law.

The superior court denied the petition in a written decision on September 11, 2019. The court found that defendant "made a prima facie showing that he falls within the statutory framework of section 1170.95," but that S.B. 1437 was unconstitutional because it unlawfully amended Propositions 7 and 115. The court determined: "The stated purpose of S.B. 1437 is 'to more equitably sentence offenders in accordance with their involvement in homicides' and to achieve this goal by 'limit[ing] convictions and subsequent sentencing' to 'assist in the reduction of prison overcrowding, which partially results from lengthy sentences.' As demonstrated, this intent clearly contradicts the stated intent behind Proposition 7 and Proposition 115, which was to increase murder convictions, to lengthen the sentence for murder and to enlarge the class of individuals who could be punished accordingly. By excluding certain aiders and abettors from receiving the punishment proscribed by Proposition 7 and Proposition 115, S.B. 1437 necessarily prohibits what those initiatives authorized. The Legislature was not free to make such changes to the law without complying with article II, section 10, subdivision (c) of the California Constitution. The Legislature likewise was prohibited from amending Proposition 115 with less than a two-thirds vote of its members. Accordingly, the court finds S.B. 1437 unconstitutional."

Defendant timely appealed. In addition to briefing by defendant and the district attorney, who represents the People in this matter, we have received and reviewed an amicus brief filed by the Attorney General, who defends the constitutionality of the law.

III. DISCUSSION

Defendant contends the superior court erred when it denied his section 1170.95 petition based on its finding that S.B. 1437 unconstitutionally amended Propositions 7 and 115. The district attorney defends the court's decision and also argues that S.B. 1437 violates Marsy's Law and the separation of powers doctrine.

Several courts including this one have considered these issues. (See, e.g., People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux); People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden); People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Bucio (2020) 48 Cal.App.5th 300; People v. Johns 50 Cal.App.5th 46 (Johns); People v. Alaybue (June 25, 2020, H047221) ___ Cal.App.5th ___ .) Consistent with the decisions in these cases, we conclude the Legislature did not amend Proposition 7 or Proposition 115 through its enactment of S.B. 1437 and that S.B. 1437 does not violate Marsy's Law or separation of powers principles.

A. S.B. 1437's Statutory Framework

The Legislature enacted S.B. 1437, effective January 1, 2019, "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).) The Legislature determined that the legislation was needed "to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual." (Id., subd. (e).) The Legislature passed S.B. 1437 by a two-thirds vote in the Senate and a less-than-two-thirds majority in the Assembly. (Gooden, supra, 42 Cal.App.5th at p. 277.)

"Under the felony-murder rule as it existed prior to [S.B.] 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. [Citation.] ' "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." ' [Citation.] '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.' [Citation.]" (Gooden, supra, 42 Cal.App.5th at pp. 275-276, fn. omitted.)

S.B. 1437 restricted the application of the felony-murder rule by amending sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.) As amended, section 188 provides: "Except as stated in subdivision (e) of Section 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." (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) Section 189, as amended, now limits liability for felony murder to a person who was either the actual killer or, though not the actual killer, (1) acted "with intent to kill" and "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer" in the commission of first degree murder, or (2) was "a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (Stats. 2018, ch. 1015, § 3; § 189, subd. (e).)

"Additionally, [S.B.] 1437 added section 1170.95, which permits a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the superior court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by [S.B.] 1437. (§ 1170.95, subd. (a).)" (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores); see Stats. 2018, ch. 1015, § 4.) "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. ([§ 1170.95], subds. (c) & (d)(1).)" (Flores, supra, at p. 992.)

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 . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) If the petitioner is found eligible for relief, but "murder was charged generically[] and the target offense was not charged," the petitioner's murder conviction must be "redesignated as the target offense or underlying felony for resentencing purposes." (Id., subd. (e).)

B. Legal Principles

The California Constitution prohibits the Legislature from amending or repealing a voter initiative without the electorate's approval unless the initiative provides otherwise. (Cal. Const., art. II, § 10, subd. (c).) The purpose of this limitation is to " ' "protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent." ' " (People v. Kelly (2010) 47 Cal.4th 1008, 1025 (Kelly).)

The California Supreme Court has "described an amendment" to a voter initiative "as 'a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.' [Citation.]" (People v. Superior Court (Pearson) 48 Cal.4th 564, 571.) "[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.]" (Kelly, supra, 47 Cal.4th at pp. 1025-1026, italics added.)

Thus, in deciding whether the Legislature has amended a voter initiative, we "ask whether [the legislation] prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.) "In resolving [this] question, we must decide what the voters contemplated" in passing the initiative. (Ibid.) " '[T]he voters should get what they enacted, not more and not less.' [Citation.]" (Ibid.)

"This is a question of statutory interpretation. When we interpret an initiative, we apply the same principles governing statutory construction. 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, 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.)

C. Analysis

1. S.B. 1437 Did Not Amend Proposition 7

Proposition 7, also known as the Briggs Initiative and approved by voters in 1978, increased the punishment for first and second degree murder by amending section 190. (People v. Cooper (2002) 27 Cal.4th 38, 41-42 (Cooper).) "The amendment increased the punishment for first degree murder from an indeterminate term of life imprisonment to a term of 25 years to life, and for second degree murder from a term of five, six, or seven years to 15 years to life in state prison." (Ibid.) The version of section 190 enacted by Proposition 7 read: "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, italics omitted.) The Legislature may not amend or appeal Proposition 7 without voter approval. (Gooden, supra, 42 Cal.App.5th at p. 278.)

The unambiguous language of Proposition 7 "demonstrates the electorate intended the initiative to increase the punishments, or consequences, for persons who have been convicted of murder." (Gooden, supra, 42 Cal.App.5th at p. 282; Cooper, supra, 27 Cal.4th at p. 42 ["The purpose of the Briggs Initiative was to substantially increase the punishment for persons convicted of first and second degree murder"].)

S.B. 1437, on the other hand, limited the application of the felony-murder rule and the natural and probable consequences doctrine by amending the mens rea requirements for first and second degree murder. (Gooden, supra, 42 Cal.App.5th at p. 282.) S.B. 1437 "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." (Gooden, supra, at p. 282.)

Nonetheless, the district attorney asserts that S.B. 1437 "takes away from Proposition 7's mandates of the penalties for first and second-degree murder" because it redefines and narrows accomplice liability for murder, "thereby lessening the penalty for murder as then defined and interpreted." The California Supreme Court's decision in Cooper, supra, 27 Cal.4th 3 illustrates why the district attorney's analysis is too broad.

The issue in Cooper was whether the Legislature unconstitutionally amended Proposition 7 through its enactment of section 2933.1, subdivision (c). (Cooper, supra, 27 Cal.4th at pp. 41, 44.) Proposition 7 included a provision that authorized postsentence conduct credits for murderers, while section 2933.1, subdivision (c) limited presentence conduct credits for felons convicted of certain offenses including murder. (Cooper, supra, at pp. 42-43.) The Court of Appeal determined that the Legislature's limitation of presentence credits was an unconstitutional amendment of Proposition 7 even though the restriction "does not directly contradict the intention of the electorate in approving [Proposition 7]." (Cooper, supra, at p. 45.) The California Supreme Court disagreed, determining that because Proposition 7 "does not specifically authorize or prohibit presentence conduct credits, any limitation of such credits against defendant's sentence . . . is not an invalid modification of [Proposition 7]." (Id. at p. 47, fn. omitted.)

Similarly, Proposition 7 does not specifically authorize or prohibit a restriction of the mens rea requirements for murder. Although an offense's elements and punishment are "closely and historically related," they are distinct from each other. (Gooden, supra, 42 Cal.App.5th at p. 281; see also People v. Anderson (2009) 47 Cal.4th 92, 119 ["A . . . penalty provision is not an element of an offense"]; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899 [" 'A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged.' "].) Thus, Proposition 7 does not bar the Legislature from enacting legislation addressing the elements of murder. (See Kelly, supra, 47 Cal.4th at p. 1025.)

For these reasons, we determine that the Legislature did not amend Proposition 7 when it enacted S.B. 1437.

2. S.B. 1437 Did Not Amend Proposition 115

Proposition 115, approved by voters in 1990, made several " 'comprehensive reforms' " the electorate found necessary " 'to restore balance and fairness to our criminal justice system.' " (Raven v. Deukmejian (1990) 52 Cal.3d 336, 342.) As relevant here, one of the changes was to amend "section 189, the felony-murder statute, . . . to add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a charge of first degree murder." (Id. at p. 344.) Proposition 115 also "revised the scope of capital liability for aiding and abetting felony murders" by extending death eligibility to those " 'who, with reckless indifference to human life and as a major participant' aid[] or abet[] the crime." (People v. Banks (2015) 61 Cal.4th 788, 798.) Proposition 115 can only be amended by statutes passed by a two-thirds vote in each house of the Legislature. (Prop. 115, § 30.)

Both Proposition 115 and S.B. 1437 address felony-murder liability. (See Cruz, supra, 46 Cal.App.5th at pp. 759-760.) This does not end our inquiry, however, because the Legislature may properly "enact[] laws addressing the general subject matter of an initiative." (Kelly, supra, 47 Cal.4th at p. 1025.) We must determine whether S.B. 1437 "prohibits what [Proposition 115] authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.)

In Gooden, the Court of Appeal answered this question narrowly, concluding that S.B. 1437 did not amend Proposition 115 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. 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." (Gooden, supra, 42 Cal.App.5th at p. 287, fn. omitted.) We agree with Gooden's conclusion.

The district attorney argues that "[b]ecause Proposition 115 directly amended section 189, and because [S.B.] 1437 substantially changes to whom Penal Code section 189 may apply by requiring additional elements be proven for accomplices that were not included in Proposition 115's version of section 189, [S.B.] 1437 is . . . violative of the amendment provisions of Proposition 115." However, as we stated above, the Legislature may enact laws encompassing the same subject matter addressed by a Proposition. (See Kelly, supra, 47 Cal.4th at p. 1025.) What it may not do is enact legislation that "prohibits what the initiative authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.) The district attorney does not establish that the Legislature has done that here.

We therefore conclude that the Legislature did not amend Proposition 115 when it enacted S.B. 1437.

3. S.B. 1437 Does Not Violate Marsy's Law

Marsy's Law, approved by voters in 2008, made several constitutional and statutory amendments to " ' "[p]rovide [crime] victims with rights to justice and due process" ' [citation], and to ' "eliminat[e] parole hearings in which there is no likelihood a murderer will be paroled. . . ." ' [Citation.]" (In re Vicks (2013) 56 Cal.4th 274, 281-283 (Vicks).) "The measure's findings express a number of grievances, including . . . the failure of the criminal justice system to give victims ' "notice of important hearings in the prosecutions of their criminal wrongdoers, failure to provide them with an opportunity to speak and participate, failure to impose actual and just punishment upon their wrongdoers, and failure to extend to them some measure of finality to the trauma inflicted upon them by their wrongdoers." ' " (Id. at p. 282.)

As relevant here, Marsy's Law amended the California Constitution to provide victims the right "[t]o a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings" and "[t]o have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgment release decision is made." (Cal. Const., art. I, § 28, subds. (b)(9), (b)(16).) To promote finality, Marsy's Law amended Penal Code provisions pertaining to parole, namely, sections 3041.5, 3043, and 3044. (Prop. 9, §§ 5.1-5.3.) Marsy's Law can only be amended by voter initiative or by two-thirds majority in both houses of the Legislature. (Prop. 9, § 9.)

The district attorney contends that S.B. 1437 violates the provisions of Marsy's Law that pertain to a victim's right to finality and " 'to have the safety of the victim, the victim's family, and the general public considered before any parole or other postjudgment release decision is made.' "

However, Marsy's Law "did not foreclose postjudgment proceedings altogether." (Lamoureux, supra, 42 Cal.App.5th at p. 264.) Instead, it "expressly contemplated the availability of such postjudgment proceedings" by referring to " 'parole [and] other post-conviction release proceedings' " and to " 'post-conviction release decisions.' " (Id. at pp. 264-265; see also Cal. Const., art. I, § 28, subd. (b)(7) & (8).) "It would be anomalous and untenable for us to conclude . . . that the voters intended to categorically foreclose the creation of any new postjudgment proceedings not in existence at the time Marsy's Law was approved simply because the voters granted crime victims a right to a 'prompt and final conclusion' of criminal cases. (Cal. Const., art. I, § 28, subd. (b)(9).)" (Lamouruex, supra, at p. 265, fn. omitted.)

Moreover, while the district attorney is correct that section 1170.95 does not authorize a superior court to assess victim and public safety when determining eligibility for relief, if the court grants a section 1170.95 petition, it must resentence the defendant. (§ 1170.95, subd. d)(1).) "During resentencing, the court may weigh the same sentencing factors it considers when it initially sentences a defendant, including whether the defendant presents 'a serious danger to society' and '[a]ny other factors [that] reasonably relate to the defendant or the circumstances under which the crime was committed.' [Citation.] At minimum, the [superior] court's ability to consider these factors during resentencing ensures the safety of the victim, the victim's family, and the general public are 'considered,' as required by Marsy's Law." (Lamoureux, supra, 42 Cal.App.5th at p. 266.)

For these reasons, we determine that S.B. 1437 does not violate Marsy's Law.

4. S.B. 1437 Does Not Violate Separation of Powers Principles

Relying primarily on People v. Bunn (2002) 27 Cal.4th 1 (Bunn) and People v. King (2002) 27 Cal.4th 29 (King), the district attorney contends that S.B. 1437 violates the separation of powers doctrine because it requires the judiciary to vacate the final judgments of eligible offenders.

" '[T]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by [the state] Constitution.' " (People v. Birks (1998) 19 Cal.4th 108, 134.) "A core function of the Legislature is to make statutory law, which includes weighing competing interests and determining social policy. A core function of the judiciary is to resolve specific controversies between parties." (Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 177.) In performing this function, "courts interpret and apply existing laws." (Ibid.)

While the separation of powers doctrine prevents "one branch of government from exercising the complete power constitutionally vested in another [citation][,] it is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch." (Younger v. Superior Court (1978) 21 Cal.3d 102, 117.) "[I]t is well understood that the branches share common boundaries [citation], and no sharp line between their operations exists. [Citations.]" (Bunn, supra, 27 Cal.4th at p. 14.)

In Bunn and King, the California Supreme Court considered whether the Legislature could properly "authorize . . . the filing of a molestation charge even where an accusatory pleading involving the same offense was previously dismissed as time-barred by the courts. The question [was] whether, and to what extent, the separation of powers clause of the California Constitution (art. III, § 3) precludes application of such a refiling provision." (Bunn, supra, 27 Cal.4th at p. 5, fn. omitted; see King, supra, 27 Cal.4th at p. 31.) The court concluded refiling was prohibited in King because the refiling at issue was authorized only by a statutory amendment enacted after the prior judgment of dismissal was upheld. (King, supra, at p. 31.) The court explained that "separation of powers principles preclude retroactive application of refiling legislation in cases where the prior judgment of dismissal was entered or finally upheld before the legislation took effect." (Ibid., italics added.) The court determined that refiling was permissible in Bunn, however, because the dismissal was already subject to a particular refiling law at the time it was entered or finally upheld. (Bunn, supra, at p. 5.)

Here, the district attorney argues that under Bunn and King, a final judgment of conviction may not be vacated unless the legislation authorizing the judgment to be vacated was in effect before the judgment became final.

However, the California Supreme Court's separation of powers analysis in Bunn and King has not been applied "to bar legislation allowing the reopening of already-final judgments of conviction (as distinct from already-final judgments of dismissal)." (Lamoureux, supra, 42 Cal.App.5th at p. 261; see also Johns, supra, 50 Cal.App.5th at p. 68.) "[D]oing so would threaten the 'substantial precedent [of] remedial legislation authorizing the ameliorative reopening of final judgments of conviction to benefit criminal defendants.' [Citation.]" (Johns, supra, at p. 68.)

There is good reason for the distinct treatment of legislation authorizing the refiling of charges in cases with prior judgments of dismissal versus legislation authorizing judgments to be vacated, which is based in "the fundamental purposes underlying the separation of powers doctrine. Power is diffused between coequal branches of government not as an end to itself, but rather to protect the liberty of individuals. [Citations.] A bright-line rule prohibiting interference with final judgments of dismissal in favor of criminal defendants dovetails with this aim, as it eliminates the risk criminal defendants will be subject to retrial for the same offenses of which they were acquitted and—if convicted the second time around— deprived of their individual liberty interests by means of incarceration." (Lamoureux, supra, 42 Cal.App.5th at p. 260.) "Unlike legislation authorizing the refiling of criminal charges against a previously-acquitted defendant, . . . section 1170.95 does not present any risk to individual liberty interests. On the contrary, it provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake in a criminal prosecution—the criminal defendant himself or herself." (Id. at p. 261.)

Accordingly, we decline to extend the California Supreme Court's analysis in Bunn and King to S.B. 1437's resentencing provision and reject the district attorney's separation of powers claim.

IV. DISPOSITION

The order is reversed and the matter is remanded with directions to consider defendant's section 1170.95 petition.

/s/_________

BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.