People v. Lamoureux

          APPEAL from an order of the Superior Court of Riverside County No. SWF1101646, John D. Molloy, Judge. Reversed.

          Michelle May Peterson, 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.

          Michael A. Hestrin, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Respondent.

          McCONNELL, P.J.

         I

         INTRODUCTION

         In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015.) Senate Bill 1437 also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain resentencing on any remaining counts. (Id., § 3.)

         Patty Ann Lamoureux appeals an order denying her petition to vacate a first degree murder conviction and obtain resentencing under the procedures established by Senate Bill 1437. The trial court denied the petition after concluding the resentencing provision of Senate Bill 1437 invalidly 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).) The People urge us to affirm the denial order on grounds that: (1) Senate Bill 1437 invalidly amended Proposition 7; (2) Senate Bill 1437 invalidly amended Proposition 115, a voter initiative that augmented the list of predicate offenses for first degree felony-murder liability (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990) (Proposition 115)); (3) the resentencing provision violates the separation of powers doctrine; and/or (4) the resentencing provision deprives crime victims the rights afforded them by the Victims' Bill of Rights Act of 2008, commonly known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008) (Proposition 9)).

         In People v. Superior Court (Gooden) (Nov. 19, 2019, D075787) ___ Cal.App.5th ___ (Gooden), a companion case issued concurrently herewith, we concluded Senate Bill 1437 did not invalidly amend Proposition 7 or Proposition 115. For the reasons discussed more fully in the Gooden opinion, we reach the same determination here. Further, we conclude the resentencing provision of Senate Bill 1437 does not contravene separation of powers principles or violate the rights of crime victims. Therefore, we find no constitutional infirmity with Senate Bill 1437, and we reverse the order denying Lamoureux's petition.

         II

         BACKGROUND

         A

         In 2013, a jury convicted Lamoureux of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1))^[1] and felony murder (§ 187, subd. (a)) arising from the killing of a friend's family member. It found true special circumstance allegations that: (1) the murder was perpetrated during the commission of a robbery and a burglary (§ 190.2, subd. (a)(17)); and (2) Lamoureux, though not the actual killer, had an intent to kill or acted with reckless indifference to human life and was a major participant in the predicate felony (id., subds. (c) & (d)). She was sentenced to prison for life without the possibility of parole.

         This court affirmed the murder and conspiracy convictions, but concluded the evidence was insufficient to support the finding that Lamoureux had an intent to kill or acted with reckless indifference to human life. (People v. Miller (Sept. 15, 2015, D067451) [nonpub. opn.], review den. Dec. 9, 2015.) Therefore, we concluded she was not eligible for the imposition of a life sentence without the possibility of parole, reversed the judgment, in part, and remanded the matter for resentencing. (Ibid.) On January 5, 2016, the trial court resentenced Lamoureux to a prison term of 25 years to life.

         B

         In 2018, after Lamoureux's judgment of conviction became final, the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature's findings and declarations states the law was "necessary 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." (Id., § 1, subd. (f).) It further provides 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., § 1, subd. (e).)

         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. (People v. Chun (2009) 45 Cal.4th 1172, 1182.)" '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.'" (Id. at p. 1184.) "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." (People v. Cavitt (2004) 33 Cal.4th 187, 197.)

         Independent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense. (People v. Chiu (2014) 59 Cal.4th 155, 161-162.)" 'Because the nontarget offense [was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.'" (People v. Flores (2016) 2 Cal.App.5th 855, 867.)

         Senate Bill 1437 restricted the application of the felony murder rule and the natural and probable consequences doctrine, as applied to murder, by amending section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, § 3.) Section 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 …."^[2]

         Senate Bill 1437 also "added a crucial limitation" to section 188, the statutory provision that defines malice for purposes of murder. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1099, review granted Nov. 13, 2019, S258175 (Lopez).) 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." (Id., subd. (a)(3).)

         Finally, Senate Bill 1437 added section 1170.95 to the Penal Code. Section 1170.95 permits 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 resentence the person on any remaining counts if the following conditions are met: "(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 [the] changes to [s]ection 188 or 189 made effective January 1, 2019." (Id., subd. (a).)

         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).) At the resentencing hearing, the parties may rely on the record of conviction or offer new or additional evidence, and the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (Id., subd. (d)(3).)

         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 been [sic] 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).)

         C

         On January 11, 2019, Lamoureux filed a resentencing petition under section 1170.95. The People opposed the petition on grounds that the amendments effectuated by Senate Bill 1437 were unconstitutional, in whole or part, for four reasons.

         First, they argued Senate Bill 1437 invalidly amended Proposition 7, a voter initiative that increased the punishment for first degree murder from a term of life imprisonment with parole eligibility after seven years to a term of 25 years to life, and increased the punishment for second degree murder from a term of five, six, or seven years to a term of 15 years to life. (Prop. 7, §§ 1-2.) Second, they contended Senate Bill 1437 invalidly amended Proposition 115, a voter initiative that augmented the list of predicate offenses giving rise to first degree felony-murder liability. (Prop. 115, § 9.) Third, they claimed section 1170.95 violated the separation of powers doctrine because it impermissibly interfered with a core judicial function of resolving specific controversies between parties. Fourth, they argued section 1170.95 violated Marsy's Law.

         The trial court concluded section 1170.95 invalidly amended Proposition 7 and denied Lamoureux's petition on that basis without addressing the People's remaining arguments. In pertinent part, the court reasoned as follows: "[T]he voters' intent in enacting Proposition 7 was straightforward: if you are lawfully convicted of murder, then your minimum sentence is 25 [years]to[]life or 15 [years]to[]life, depending on degree. This intent doesn't necessarily preclude the Legislature from prospectively modifying the law of murder around the margins … but it does preclude the Legislature from retroactively redefining murder to vacate convictions that were unquestionably lawful at the time they were entered, thus effectively granting a legislative commutation and reducing the punishment that the electorate mandated for murder…."

         Lamoureux appealed the order denying her resentencing petition. The Attorney General permitted the Office of the District Attorney of Riverside County to represent the People's interests in this appeal and, for its part, filed an amicus curiae brief defending the constitutionality of Senate Bill 1437.

         III

         DISCUSSION

         A

         Under Article II, section 10 of the California Constitution, a statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless the initiative statute provides otherwise. (Cal. Const., art. II, § 10, subd. (c).) 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.)

         The People argue Senate Bill 1437 violated the rule limiting legislative amendments to voter initiatives because Senate Bill 1437 purportedly amended Proposition 7 without receiving the approval of the voters. Further, they claim Senate Bill 1437 violated the legislative amendment rule on grounds that it amended Proposition 115 without receiving voter approval or two-thirds approval from the Legislature.^[3] The trial court accepted the first of these arguments, at least in part, when it found that section 1170.95 constituted an invalid amendment to Proposition 7. However, in Gooden, supra, ___ Cal.App.5th ___, we rejected both of the People's arguments. We do so here as well.

         As we explained in the Gooden decision, Senate Bill 1437 did not amend Proposition 7 because it did not "address the same subject matter [as Proposition 7]. It 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, __ Cal.App.5th at p. __ [p. 14].) Because Senate Bill 1437 and Proposition 7 concerned different subjects, we concluded Proposition 7 did not foreclose the Legislature from enacting Senate Bill 1437 to amend the mental state requirements for murder under the felony-murder rule and ...