Opinion
H047319
12-17-2020
THE PEOPLE, Plaintiff and Respondent, v. BENNY BAUTISTA OLIVENCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 189982)
I. INTRODUCTION
In 1998, the superior court found defendant Benny Bautista Olivencia guilty of second degree murder (Pen. Code, § 187) and found true the allegation that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced defendant to 15 years to life.
All further statutory references are to the Penal Code.
This court granted defendant's request to take judicial notice of the record in case No. H018826, which was defendant's direct appeal from the judgment. This court dismissed case No. H018826 at defendant's request. We rely on the record in case No. H018826 for procedural background.
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.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4.) Section 1170.95 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 Senate Bill 1437's changes to murder law. After appointing defendant counsel and receiving briefing from the parties on the constitutionality of Senate Bill 1437, the superior court dismissed defendant's petition, determining that Senate Bill 1437 unconstitutionally 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 contends the superior court erred when it determined that Senate Bill 1437 is unconstitutional and asks this court to remand the matter for a determination of his resentencing petition on the merits. The district attorney submits the matter to this court based on People v. Alaybue (2020) 51 Cal.App.5th 207 (Alaybue), where this court held that Senate Bill 1437 did not unlawfully amend Propositions 7 and 115.
We concur with this court's conclusion in Alaybue that Senate Bill 1437 did not unconstitutionally amend Propositions 7 and 115. (Alaybue, supra, 51 Cal.App.5th at p. 211.) Accordingly, we will reverse the order and remand the matter for consideration of defendant's section 1170.95 petition on the merits.
II. PROCEDURAL BACKGROUND
We do not provide a factual summary of the offense underlying defendant's conviction because the facts were not considered by the superior court and are not relevant to the issue on appeal.
In 1996, defendant and three codefendants were charged by indictment with murder (§ 187). The indictment also alleged that defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and had served three prior prison terms (§ 667.5, subd. (b)).
In 1998, the superior court found defendant guilty of second degree murder and found the gang allegation true. The court sentenced defendant to 15 years to life.
The superior court "denie[d] [the] People's motion to reopen [the] issue of prior convictions."
On January 30, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The petition consisted of a three-page preprinted form. Among other boxes, defendant checked boxes on the form indicating that "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine"; "[a]t trial, [he] was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine"; and he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019." In addition, defendant checked a box stating that he "was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and . . . could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019." Defendant also requested counsel.
The superior court appointed counsel to represent defendant. The district attorney filed a "challenge to SB 1437 as unconstitutional," arguing that the bill unlawfully amended Propositions 7 and 115. (Boldface & some capitalization omitted.) The district attorney also contended that Senate Bill 1437 was unconstitutional because it violated separation of powers principles. The district attorney did not address the merits of defendant's petition but stated that he would file a merits response if needed. Defendant filed a response, asserting that the district attorney's constitutional challenge to the law was meritless, and the district attorney replied.
The superior court dismissed the petition in a written decision. The court determined that Senate Bill 1437 was unconstitutional because it unlawfully amended Propositions 7 and 115. The court concluded that Senate Bill 1437 amended Proposition 7 because Senate Bill 1437 restricts murder liability, "thereby decreasing the penalties of persons who would have been sentenced pursuant to the provisions enacted by Prop[osition] 7." The court found that Senate Bill 1437 amended Proposition 115 by adding elements to section 189 that "were not in the version of [section] 189 adopted by Prop[osition] 115," unlawfully restricting murder liability.
III. DISCUSSION
Defendant contends the superior court erred when it dismissed his section 1170.95 petition based on its finding that Senate Bill 1437 unconstitutionally amended Propositions 7 and 115. The district attorney "submits the matter to this Court" in light of this court's decision in Alaybue.
Several courts including this one have considered these issues. (See, e.g., People v. Lamoureux (2019) 42 Cal.App.5th 241; 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 (2020) 50 Cal.App.5th 46 (Johns); Alaybue, supra, 51 Cal.App.5th 207.) Consistent with the decisions in those cases, we conclude the Legislature did not unconstitutionally amend Proposition 7 or Proposition 115 through its enactment of Senate Bill 1437.
A. Senate Bill 1437's Statutory Framework
The Legislature enacted Senate Bill 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 Senate Bill 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 Senate Bill 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state. [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.)
Senate Bill 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." (Id., subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Section 189, subdivision (e), as amended, now limits liability for murder to a person who was either the actual killer or, though not the actual killer, acted "with the intent to kill" and "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer" in the commission of first degree murder, or 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." (Id., subd. (e)(1)-(3)), as amended by Stats. 2018, ch. 1015, § 3.)
In addition to the amendments to sections 188 and 189, Senate Bill 1437 added section 1170.95, which allows "[a] person convicted of felony murder or murder under a natural and probable consequences theory" to petition the sentencing court to vacate the murder conviction and be resentenced on any remaining counts. (§ 1170.95, subd. (a), added by Stats. 2018, ch. 1015, § 4.) All of the following conditions must apply to warrant section 1170.95 relief: "(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[; and] [¶] (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." (Id., subd. (a).)
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." [Citations.]' [Citation.]" (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) (2010) 48 Cal.4th 564, 571 (Pearson).) "[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 & omitted.)
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. [Citation.]" (Pearson, supra, 48 Cal.4th at p. 571.)
C. Analysis
1. Senate Bill 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." (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7, § 2, p. 33, italics omitted.) The Legislature may not amend or appeal Proposition 7 without voter approval. (Gooden, supra, 42 Cal.App.5th at p. 278.)
Proposition 7 also amended sections 190.1 through 190.5, which pertain to imposition of the death penalty and cases involving special circumstance allegations. (Johns, supra, 50 Cal.App.5th at p. 56.)
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; see also 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"]; Alaybue, supra, 51 Cal.App.5th at p. 215.)
Senate Bill 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. (Alaybue, supra, 51 Cal.App.5th at p. 215; see also Gooden, supra, 42 Cal.App.5th at p. 282.) It did so "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 superior court determined that Senate Bill 1437's restriction of murder liability unlawfully amended Proposition 7 by "decreasing the penalties of persons who would have been sentenced pursuant to the provisions enacted by Prop[osition] 7." However, Senate Bill 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, 42 Cal.App.5th at p. 282.)
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' "].) Proposition 7 does not specifically authorize or prohibit a restriction of the mens rea requirements for murder and does not bar the Legislature from enacting legislation addressing the elements of murder (see Kelly, supra, 47 Cal.4th at p. 1025), which is what the Legislature did when it enacted Senate Bill 1437. Because "Senate Bill 1437 did not change the punishment provisions authorized by Proposition 7, . . . it did not unconstitutionally amend Proposition 7." (Alaybue, supra, 51 Cal.App.5th at p. 216.)
For these reasons, we determine that the Legislature did not unconstitutionally amend Proposition 7 when it enacted Senate Bill 1437.
2. Senate Bill 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.) The Legislature may only amend Proposition 115 by statutes passed by a two-thirds vote in each house. (Ballot Pamp., supra, text of Prop. 115, § 30, p. 69.)
Proposition 115 amended section 189 to add the language set forth in italics: "All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under . . . Section 286, 288, 288a, or 289, is murder of the first degree; and all other kinds of murders are of the second degree." (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115, § 9, p. 66 (Ballot Pamphlet).)
As the superior court found, both Proposition 115 and Senate Bill 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 Senate Bill 1437 "prohibits what [Proposition 115] authorizes, or authorizes what the initiative prohibits." (Pearson, supra, 48 Cal.4th at p. 571.)
In Alaybue, this court answered this question narrowly, concluding that Senate Bill 1437 did not amend Proposition 115 because Senate Bill 1437 "did not add to or otherwise modify the list of predicate felonies leading to felony murder liability. Rather, it addressed accomplice liability for felony murder, a related but distinct area of the law." (Alaybue, supra, 51 Cal.App.5th at p. 217; see also Gooden, supra, 42 Cal.App.5th at p. 287 [Senate Bill 1437 "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"].) We agree with Alaybue's conclusion.
The superior court determined that Senate Bill 1437 unlawfully amended Proposition 115 because Senate Bill 1437 "requir[es] additional elements be proved for accomplice[] [liability]," which "were not in the version of [section] 189 adopted by Prop[osition] 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.) We find that the Legislature has not done so here.
We therefore conclude that the Legislature did not unconstitutionally amend Proposition 115 when it enacted Senate Bill 1437.
IV. DISPOSITION
The order is reversed, and the matter is remanded for the superior court to consider defendant's Penal Code section 1170.95 petition on the merits.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.