Filed 11/19/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075794

Plaintiff and Respondent,

v. (Super. Ct. No. SWF1101646)

PATTY ANN LAMOUREUX,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, 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.

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

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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

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

1 All further statutory references are to the Penal Code, unless otherwise noted.
3
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.

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).)

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 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

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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

2 Section 189, subdivision (e) does not apply when the victim is a peace officer who
was killed while in the course of his or her duties, where the defendant knew or
reasonably should have known that the victim was a peace officer engaged in the
performance of his or her duties. (Id., subd. (f).)
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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).)

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 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

8
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

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

9
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 the natural and probable consequences doctrine. (Id. at p. __

[pp. 12–21].) Our analysis applied to all the legislative amendments effectuated by

Senate Bill 1437, including section 1170.95. (Id. at p. __ [pp. 20–21.)

Gooden also concluded Senate Bill 1437 did not amend Proposition 115.

(Gooden, supra, ___ Cal.App.5th at pp. __ [pp. 21–24].) As we explained in that case,

3 Proposition 115 authorized the Legislature to amend its provisions by a two-thirds

because both measures altered the circumstances under which a person may be liable for

felony murder. (Id. at pp. __ [pp. 21–22].) However, Senate Bill 1437 "did not augment

or restrict the list of predicate felonies on which felony murder may be based, which

[was] the pertinent subject matter of Proposition 115." (Id. at p. __ [p. 22].) On this

basis, we determined Senate Bill 1437 did not amend Proposition.

For the foregoing reasons, which are discussed more fully in the Gooden decision,

we conclude Senate Bill 1437 did not invalidly amend Proposition 7 or Proposition 115.4

As noted ante, the People assert additional challenges to the constitutionality of

the resentencing procedure created by section 1170.95—arguments not asserted or

addressed in the Gooden appeal. They contend section 1170.95 usurps the executive's

clemency power in contravention of separation of powers principles because it "legally

erases" petitioners' murder convictions and the penalties attached thereto. Additionally,

they contend section 1170.95 impairs a core function of the judiciary because it provides

for the retroactive reopening of final judgments. We address these separation of powers

arguments in the following sections.

4 Lamoureux filed a request for judicial notice of a legislative report on Senate Bill
1437 and ballot materials for Proposition 7 and Proposition 115. Because we reject the
People's invalid amendment arguments for the reasons set forth in the Gooden decision,
we deny the request for judicial notice as unnecessary. (Landstar Global Logistics, Inc.
v. Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 383, fn. 2.)
11
 "The California Constitution establishes a system of state government in which

power is divided among three coequal branches (Cal. Const., art. IV, § 1 [legislative

power]; Cal. Const., art. V, § 1 [executive power]; Cal. Const., art. VI, § 1 [judicial

power]), and further states that those charged with the exercise of one power may not

exercise any other (Cal. Const., art. III, § 3)." (People v. Bunn (2002) 27 Cal.4th 1, 14

(Bunn).) This division of power " ' " ' "limits the authority of one of the three branches of

government to arrogate to itself the core functions of another branch." ' " ' " (In re Lira

(2014) 58 Cal.4th 573, 583.) Through this limitation, we "avoid both the 'concentration

of power in a single branch of government,' and the 'overreaching' by one branch against

the others." (Bunn, at p. 16.)

To determine whether one branch of government has misappropriated a core or

essential function of another in the case at hand, we must first review the pertinent roles

of each government branch. "The core functions of the legislative branch include passing

laws, levying taxes, and making appropriations." (Carmel Valley Fire Protection Dist. v.

Cal. (2001) 25 Cal.4th 287, 299.) Encompassed within the Legislature's core function of

passing laws is the responsibility of defining crimes and prescribing punishments.

(People v. Anderson (2009) 47 Cal.4th 92, 118–119; see People v. Gonzalez (2014) 60

Cal.4th 533, 538 [" 'Only the Legislature … may make conduct criminal.' "].)

The Constitution vests "supreme executive power" in the Governor. (Cal. Const.,

art. V, § 1.) Among other powers, the Governor possesses constitutional authority to

"grant a reprieve, pardon, and commutation, after sentence, except in case of

12
impeachment."5 (Id., § 8.) The clemency authority is exclusive to the Governor.

(Santos, supra, 238 Cal.App.4th at p. 418; In re Fain (1983) 145 Cal.App.3d 540, 548.)

Finally, the judiciary "resolve[s] 'specific controversies' between parties.

[Citation.] In such proceedings, existing laws … are interpreted and applied." (Bunn,

supra, 27 Cal.4th at p. 15; see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104 ["Courts

are empowered to decide controversies, a power derived from the state constitution."].)

The function of resolving specific controversies between parties includes the power to

dispose of criminal charges filed by and on behalf of the People. (People v. Superior

Court (On Tai Ho) (1974) 11 Cal.3d 59, 66 ["[W]hen the jurisdiction of a court has been

properly invoked by the filing of a criminal charge, the [d]isposition of that charge

becomes a judicial responsibility."].)

" 'Although article III, section 3 of the California Constitution "defines a system of

government in which the powers of the three branches are to be kept largely separate, it

also comprehends the existence of common boundaries between the legislative, judicial,

and executive zones of power thus created…." ' " (In re Rosenkrantz (2002) 29 Cal.4th

616, 662 (Rosenkrantz); see Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59

Cal.4th 348, 390 [" '[T]he substantial interrelatedness of the three branches' actions is

5 "Commutation is a reduction in punishment; a pardon is the remission of guilt and

["From the beginning, each branch has exercised all three kinds of powers."].)

Therefore, "the separation of powers doctrine has never been applied rigidly."

(Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 183, 184; see Rosenkrantz,

supra, 29 Cal.4th at p. 662 [" '[T]he separation of powers principle does not command "a

hermetic sealing off of the three branches of Government from one another." ' "].)

Instead, it is violated "only when the actions of a branch of government defeat or

materially impair the inherent functions of another branch." (Rosenkrantz, at p. 662.)

Further, it " 'recognizes that the three branches of government are interdependent, and it

permits actions of one branch that may "significantly affect those of another branch." ' "

(Ibid.; see, e.g., Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1,

43–52 [legislative appointment of members to California Coastal Commission did not

intrude upon core executive functions]; Superior Court v. County of Mendocino (1996)

13 Cal.4th 45, 52–66 [legislation allowing county to designate unpaid furlough days and

court closures did not impermissibly restrict judicial functions].)

With these principles in mind, we begin with the People's contention that section

1170.95 is an improper legislative encroachment upon the executive clemency power.

"One recognized function of the clemency power is the exercise of mercy—a value that

has generally been thought to be peculiarly the province of the executive." (Procedures

for Considering Requests for Recommendations Concerning Applications for Pardon or

Commutation (2018) 4 Cal.5th 897, 898.) The People contend section 1170.95 intrudes

14
upon the executive's clemency authority by establishing a means to "erase[]" convictions

and reduce punishment. Based on the following authorities addressing the separation of

powers doctrine in the clemency context, we disagree.

In Way v. Superior Court (1977) 74 Cal.App.3d 165 (Way), plaintiffs consisting of

superior court judges, district attorneys, and other interested individuals sought to enjoin

the implementation of a provision in the newly-enacted Uniform Determinate Sentencing

Act of 1976 (the UDSA; Stats. 1976, ch. 1139). The provision applied retroactively and,

in most cases, permitted prisoners sentenced under the since-repealed Indeterminate

Sentence Law to obtain early parole release dates if their prison terms would have been

shorter under the new UDSA. (Way, at p. 172.) The plaintiffs argued the retroactive

application of the UDSA violated the separation of powers doctrine by infringing on the

Governor's clemency authority. (Id. at p. 169.)

The Way court disagreed. (Way, supra, 74 Cal.App.3d at pp. 176–177.) Although

the parole provision had "the effect of commutation in certain cases," the Way court

concluded this outcome was "purely incidental to the main legislative purpose" of the

provision, which was to ensure "felons concurrently serving sentences for identical

offenses [were not] subject to disparate terms solely because of the time when they

committed their crimes." (Id. at p. 177.) Because the Legislature did not enact the

provision to extend an "act of mercy, grace, or forgiveness," and the reduction of final

sentences was "incidental" to a "comprehensive reformation of California's penal

system," the Way court determined the Legislature did not impermissibly "exercise[] the

complete power constitutionally delegated" to the executive. (Id. at pp. 177, 178; see In

15
re Chavez (2004) 114 Cal.App.4th 989, 1001 (Chavez) [following the Way decision and

rejecting separation of powers challenge to legislation changing punishment from

indeterminate term to determinate term].)

The Supreme Court cited the Way decision with approval in Younger v. Superior

Court (1978) 21 Cal.3d 102 (Younger). At issue in Younger was a statute permitting an

application to be submitted to the Department of Justice for the destruction of arrest and

conviction records for marijuana possession. (Id. at p. 111.) The petitioner in Younger

filed an application in accordance with the statute, the Attorney General declined to act

citing separation of powers concerns, and the petitioner sought writ relief to compel the

Attorney General to comply with his statutory obligations. (Id. at pp. 108, 112.)

The Younger court ordered issuance of the writ. It acknowledged "the effects of [a

records destruction] order [were] similar to certain effects of a gubernatorial pardon for

the same offense," but nevertheless held there was no separation of powers violation.

(Younger, supra, 21 Cal.3d at p. 117.) The Younger court reasoned the records

destruction law was not enacted "as an act of grace," but rather to "implement[] the

Legislature's principal objective of reducing the adverse social and personal effects of [a]

conviction which linger long after the prescribed punishment has been completed." (Id.

at p. 118.) Borrowing language from Way, the Younger court concluded "[a]ny

infringement on the power of executive clemency [was] … purely incidental to the main

purpose of the statute … and hence [did] not violate the separation of powers." (Ibid.)

We conclude the rationale of the Way and Younger decisions is directly applicable

here. Like the challenged laws in the Younger and Way cases, section 1170.95 can

16
produce outcomes resembling the consequences of an executive commutation.

Specifically, in cases where a petitioner makes a prima facie showing of entitlement to

relief (§ 1170.95, subd. (c)), and the prosecution fails to carry its burden of proving the

petitioner is ineligible for resentencing (id., subd. (d)(3)), murder sentences may be

vacated and sentences recalled (id., subd. (d)(1)). Although section 1170.95 requires

resentencing on remaining counts, such that a given prisoner's overall sentence may not

actually be shortened (id., subd. (d)(1)), it is apparent and undisputed that at least some

successful petitioners will obtain shorter sentences or even release from prison.

However, the objective of the Legislature in approving section 1170.95—like the

legislative aims underpinning the challenged laws in the Way and Younger cases—was

not to extend "an act of grace" to petitioners. (Younger, supra, 21 Cal.3d at p. 118; Way,

supra, 74 Cal.App.3d at pp. 177–178.) Rather, the Legislature's statement of findings

and declarations confirms it approved Senate Bill 1437 as part of a broad penal reform

effort. The purpose of that undertaking was to ensure our state's murder laws "fairly

address[] the culpability of the individual and assist[] in the reduction of prison

overcrowding, which partially results from lengthy sentences that are not commensurate

with the culpability of the individual." (Stats. 2018, ch. 1015, § 1, subd. (e); see People

v. Munoz (2019) 39 Cal.App.5th 738, 763 (Munoz) [discussing "the Legislature's dual

intents [in enacting Senate Bill 1437]—making conviction and punishment

commensurate with liability, and reducing prison overcrowding"].)

The outcome of a successful petition under section 1170.95 further underscores

the fact that section 1170.95 is not merely an act of grace akin to an exercise of executive

17
clemency. As noted ante, "[a] successful Senate Bill 1437 petitioner's criminal

culpability does not simply evaporate; a meritorious section 1170.95 petition is not a get-

out-of-jail free card. Instead, the petitioner is resentenced on the remaining convictions.

If the murder was charged 'generically' and the target offense was not charged, the

murder conviction must be redesignated as the target offense or underlying felony for

resentencing purposes." (Munoz, supra, 39 Cal.App.5th at pp. 764–765.) Thus, while

some qualifying petitioners certainly may obtain reduced prison sentences under section

1170.95, there is no guarantee of such an outcome.

In accordance with the Younger and Way decisions, it is clear to us that section

1170.95's interference with the executive's clemency authority, if any, is merely

incidental to the main legislative purpose of Senate Bill 1437. Therefore, we conclude

section 1170.95 does not impermissibly encroach upon the core functions of the

executive.

The People claim section 1170.95 violates the separation of powers doctrine in a

second respect. They argue section 1170.95 does not distinguish between prisoners

serving final and nonfinal sentences as of the effective date of the legislation (January 1,

2019), thus entitling both categories of prisoners to petition for relief. They contend the

Legislature impaired the judiciary's core function of resolving controversies between

parties insofar as section 1170.95 permits prisoners serving final sentences to seek relief.

18
 a

As an initial matter, we agree with the People's reading of the scope of section

1170.95. Under section 1170.95, petitioners may seek retroactive relief entitling them to

vacate qualifying murder convictions and obtain resentencing on any remaining counts.

"[S]ection 1170.95 does not distinguish between persons whose sentences are final and

those whose sentences are not." (People v. Martinez (2019) 31 Cal.App.5th 719, 727; see

also Munoz, supra, 39 Cal.App.5th at p. 752; Lopez, supra, 38 Cal.App.5th at p. 1099.)

Thus, as a matter of statutory interpretation, petitioners may obtain relief under section

1170.95 irrespective of whether their murder convictions were final as of January 1,

2019. (Martinez, at p. 727; see also Munoz, at pp. 751–752; Lopez, at p. 1114.)

Relying principally on Bunn, supra, 27 Cal.4th 1, the People contend the

retroactive application of section 1170.95 to prisoners serving final sentences constitutes

a separation of powers violation because it permits final judgments of conviction to be

reopened. According to the People, this feature intrudes upon a core function of the

judiciary—resolving specific controversies between parties. The California Supreme

Court issued the Bunn decision together with a companion case, People v. King (2002) 27

Cal.4th 29 (King). Because the Bunn and King decisions draw heavily from the United

States Supreme Court's decision in Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211

(Plaut), we will first address the Plaut decision before discussing the Bunn and King

decisions.

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 In Plaut, plaintiffs filed a fraud action in federal court based on alleged violations

of the federal securities laws. (Plaut, supra, 514 U.S. at p. 213.) At the time, federal

courts were required to " 'borrow[]' " the analogous state statute of limitations in the

jurisdiction in which the action was pending. (Id. at p. 250 (dis. opn. of Stevens, J.).)

However, after the plaintiffs filed their case, the United States Supreme Court issued

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson (1991) 501 U.S. 350 (Lampf),

which—together with a companion case—adopted a uniform federal limitations rule

shorter than the one on which the plaintiffs relied and applied the new statute of

limitations retroactively. (Plaut, at pp. 213–214; id. at pp. 249–250 (dis. opn. of Stevens,

J.).) Based on Lampf, the district court dismissed plaintiffs' action as untimely and the

judgment ultimately became final. (Id. at p. 214.)

Congress responded to the Lampf decision by passing legislation repudiating the

retroactive effect of the new limitations period. (Plaut, supra, 514 U.S. at pp. 214–215.)

The new legislation restored the pre-Lampf limitations period for two types of cases filed

before the Lampf decision was issued—(1) cases pending when the new legislation went

into effect; and (2) cases dismissed as time-barred between the filing of the Lampf

decision and the effective date of the new legislation. (Ibid.) Further, the new legislation

permitted plaintiffs to seek reinstatement of dismissed actions. (Id. at p. 215.) The Plaut

plaintiffs sought reinstatement of their action in accordance with the refiling provision,

but the district court dismissed the case on grounds that the refiling provision violated the

separation of powers doctrine. (Ibid.) The Sixth Circuit Court of Appeals affirmed and

the United States Supreme Court granted review. (Ibid.)

20
 The high court began its separation of powers analysis with a declaration that the

judicial power exercised by article III courts includes the power to " 'render dispositive

judgments' "—a power Congress violated when it commanded courts to reopen final

judgments. (Plaut, supra, 514 U.S. at pp. 219, 223.) The Plaut court engaged in an

extensive discussion of the historical roots animating the federal constitutional principle

limiting legislative interference with final judgments. (Id. at pp. 219–225.) As the Plaut

court explained, early colonial assemblies and legislatures routinely functioned as courts

of equity of last resort or otherwise corrected the judicial process by enacting special bills

to set aside judgments and order new trials or appeals. (Id. at pp. 219–223.) According

to the Plaut court, the ratification of the federal Constitution fundamentally altered these

practices by separating "the legislative power to make general law from the judicial

power to apply that law in particular cases …." (Id. at pp. 224, 225.)

The Plaut court concluded the refiling provision at issue violated these federal

separation of powers principles, reasoning in pertinent part as follows: "When retroactive

legislation requires its own application in a case already finally adjudicated, it does no

more and no less than 'reverse a determination once made, in a particular case.' " (Plaut,

supra, 514 U.S. at p. 225.) According to the Plaut court, the separation of powers

violation existed even though the refiling provision at issue affected "a whole class of

cases rather than … a particular suit." (Id. at p. 227.)

However, the Plaut court set limits on the scope of its ruling. Because the judicial

branch consists of a hierarchy of courts, the Plaut court explained a judgment does not

achieve finality for federal separation of powers purposes until the time for an appeal has

21
passed or an appeal has been pursued and the review process has been completed. (Plaut,

supra, 514 U.S. at pp. 226–227.) Further, it held that separation of powers principles

would not be violated if a statute authorizing the reopening of a judgment was already in

effect when a judgment became final because the reopening law would, in effect, be

"built into the judgment itself, and its finality … so conditioned." (Id. at p. 234.)

Because the judgment against the Plaut plaintiffs was final before Congress enacted the

refiling provision, the plaintiffs were precluded from invoking the refiling provision.

The Plaut decision featured prominently in the Bunn decision, on which the

People rely in this appeal. Bunn concerned legislation that extended the statute of

limitations for the prosecution of sex offenses committed against children. (Bunn, supra,

27 Cal.4th at p. 6.) After the Legislature enacted the new law, some courts concluded the

new limitations period did not apply retroactively if prosecution of an offense was time-

barred when the law went into effect. (Id. at pp. 7–8.) In response to these decisions, the

Legislature passed further legislation providing that the new statute of limitations applied

retroactively, even if the limitations period expired prior to the effective date of the new

legislation. (Id. at pp. 9–10.) Further, the Legislature enacted a savings clause permitting

the refiling of otherwise time-barred actions that had been filed and dismissed before the

retroactivity language and savings clause were enacted. (Id. at pp. 10–11.) "The

apparent purpose was to prevent the affected group [of defendants] from escaping

prosecution, or from receiving more favorable statute of limitations treatment than other

molestation defendants whose cases were never prosecuted under the [extended statute of

limitations], or, if so prosecuted, were not dismissed …." (Id. at p. 11.)

22
 In Bunn, a defendant obtained a judgment of dismissal as to charges of sex

offenses committed against a child, but was reprosecuted under the new statute of

limitations and refiling provision. The Supreme Court granted review to assess the

constitutionality of the refiling provision under state separation of powers principles and

concluded "Plaut [was] persuasive for purposes of interpreting California's separation of

powers clause…." (Bunn, supra, 27 Cal.4th at pp. 22, 23.) Applying the Plaut court's

holding, our Supreme Court concluded "a refiling provision … cannot be retroactively

applied to subvert judgments that became final before the provision took effect, and

before the law of finality changed." (Id. at p. 24.) In the Bunn case, the Legislature

enacted the refiling provision before the judgment of dismissal became final. Therefore,

separation of powers principles did not prohibit the prosecution from refiling criminal

charges against the defendant under the new limitations period. (Id. at pp. 26–27.)

In King—a companion decision issued concurrently with Bunn—a defendant also

obtained a judgment of dismissal in a case involving alleged sex offenses committed

against children. (King, supra, 27 Cal.4th at p. 32.) But, unlike Bunn, the Legislature

enacted the refiling provision after the King defendant's judgment of dismissal became

final. Therefore, the Supreme Court concluded the refiling provision could not be

retroactively applied to the defendant in the King case. (Id. at pp. 36–37.)

Relying on the Bunn and King decisions, the People claim section 1170.95 violates

state separation of powers principles. They argue the Bunn and King decisions stand for

the proposition that final judgments may never be reopened if legislation authorizing such

23
reopening was not in effect when the judgments at issue became final. We do not read

the Bunn and King decisions so expansively.

The Bunn and King courts addressed a situation starkly different than the one

before us. In those cases, the issue as framed by the Supreme Court was as follows:

"[The Legislature] authorize[d] … 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 is 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; see King, supra, 27 Cal.4th at p. 31.) Stated

differently, the matter at hand was whether the People could rely on refiling legislation to

reprosecute a defendant who obtained a judgment of dismissal that became final prior to

the effective date of the refiling legislation. (Bunn, at p. 14 ["We focus here on the

constitutional roles of the Legislature and the judiciary, particularly with respect to

criminal statutes of limitation and judgments of dismissal obtained thereunder." (italics

added)].) As discussed ante, our Supreme Court answered this question in the negative.

The answer reached by the Supreme Court is unsurprising in view of 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. (Buckley v. Valeo (1976) 424 U.S. 1, 122; see Steen v. Appellate

Division of Superior Court (2014) 59 Cal.4th 1045, 1060 ["Separation of powers protects

liberty …."] (conc. opn. of Liu, J.); Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 188

(Perez) [separation of powers "is ultimately about the competing rights of individual

24
parties"]; Brown, Separated Powers and Ordered Liberty (1991) 139 U.Pa. L.Rev. 1513,

1514 ["[T]he structure of the government is a vital part of a constitutional organism

whose final cause is the protection of individual rights."].) 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.

Our courts have also applied the state separation of powers doctrine to prohibit

legislation authorizing the retroactive reopening of final judgments obtained in favor of

private parties against the government (Mandel v. Myers (1981) 29 Cal.3d 531, 545–551),

as well as legislation authorizing the retroactive reopening of final judgments between

private parties (Perez, supra, 146 Cal.App.4th at pp. 182–190). In such cases, the

prohibition against retroactive reopening of final judgments once again furthered the

individual liberty underpinnings of the separation of powers doctrine—private litigants

who "years ago obtained favorable judgments based on the law as it then existed, likely

incurring substantial attorney's fees in order to do so," were not deprived of the final

judgments they obtained and on which they may have relied. (Perez, at p. 188.)

The case at hand stands on different footing. Unlike legislation authorizing the

refiling of criminal charges against a previously-acquitted defendant, or the refiling of

actions between private parties, 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

25
criminal defendant himself or herself. In such cases, we do not believe the separation of

powers analysis conducted in Bunn and King controls. Indeed, the parties have directed

us to no decisions applying the Bunn and King separation of powers analysis to bar

legislation allowing the reopening of already-final judgments of conviction (as distinct

from already-final judgments of dismissal), and we have found none.

Quite the opposite. While the Way decision did not directly address whether the

legislation at issue intruded upon the core function of the judiciary, it strongly rejected

the claim there was anything inherently problematic with legislation permitting the

reopening of final judgments of conviction. (Way, supra, 74 Cal.App.3d at p. 180 ["[I]n

this case final judgments will be reduced …. In view of the legislative objective, the final

judgment rule must yield."]; id. at p. 181 ["There is nothing sacred about a final judgment

of imprisonment which immunizes it from the Legislature's power to achieve equality

among past and new offenders."] (conc. opn. of Friedman, J.).) Courts following the Way

decision have ruled similarly. (Chavez, supra, 114 Cal.App.4th at p. 1000 ["A] final

judgment is not immune from the Legislature's power to adjust prison sentences for a

legitimate public purpose."]; People v. Community Release Bd. (1979) 96 Cal.App.3d

792, 800 ["[L]egislation reducing punishment for crime may constitutionally be applied

to prisoners whose judgments have become final."].) In accordance with these

authorities, we conclude the separation of powers concerns discussed in Bunn and King

do not apply to section 1170.95.

There is another reason we do not accept the People's separation of powers

argument. In Bunn, the challenged legislation—a savings clause permitting prosecutors

26
to refile otherwise time-barred actions against criminal defendants who were acquitted

and obtained final judgments of dismissal—"thwart[ed]" the final judgments of dismissal,

which had no import whatsoever if the prosecution elected to recharge the defendant.

(Bunn, supra, 27 Cal.4th at p. 17.) Here, section 1170.95 provides a mechanism by

which a successful petitioner may obtain vacatur of his or her judgment of conviction.

However, it also requires the trial court to resentence the petitioner subject to constraints

arising from the original judgment of conviction. (Id., subd. (d)(1).)

For instance, a court must resentence a petitioner "on any remaining counts" of

which the petitioner was found guilty in the original judgment. (§ 1170.95, subd. (d)(1).)

If the petitioner was charged generically with murder and a target offense was not

charged, the conviction is redesignated "as the target offense or underlying felony" giving

rise to the original murder conviction. (Id., subd. (e).) Further, the original judgment sets

an upper cap on the sentence a petitioner may receive during resentencing. (Id., subd.

(d)(1).) In short, these limitations respect the original judgment in a sense, despite the

fact that petitioners may obtain vacatur of their convictions and resentencing. For this

independent reason, we conclude section 1170.95 does not "defeat or materially impair

the inherent functions" of the judicial branch. (Rosenkrantz, supra, 29 Cal.4th at p. 662.)

Further underscoring our conclusion today is the fact that there is substantial

precedent for remedial legislation authorizing the ameliorative reopening of final

judgments of conviction to benefit criminal defendants. One key example is the Three

Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)),

which amended the Three Strikes Law to reduce the punishment for certain third strike

27
defendants. (§ 1170.12, subd. (c)(2)(A), (C).) It created a procedure permitting a person

serving a sentence under the Three Strikes Law to "file a petition for a recall of

sentence … before the trial court that entered the judgment of conviction" and obtain

resentencing if he or she would have qualified for a reduced sentence under the amended

law. (§ 1170.126, subd. (b).) Resentencing is available to petitioners serving both final

and nonfinal sentences. (People v. Conley (2016) 63 Cal.4th 646, 657.)

Another example is the Safe Neighborhoods and Schools Act, which redefined

common theft- and drug-related felonies as misdemeanors for many offenders. (Prop. 47,

as approved by voters, Gen. Elec. (Nov. 4, 2014).) It permits eligible persons serving a

felony sentence for redefined offenses as of the legislation's effective date to "petition for

a recall of sentence before the trial court that entered the judgment of conviction in his or

her case to request resentencing" under the provisions of the amended law. (§ 1170.18,

subd. (a).) Further, it permits eligible persons who already completed a sentence for a

covered offense to "file an application before the trial court that entered the judgment of

conviction in his or her case to have the felony conviction or convictions designated as

misdemeanors." (Id., subd. (f).) These procedures are available "to all previously

sentenced defendants who seek resentencing, regardless of whether their judgments have

become final on direct review." (People v. DeHoyos (2018) 4 Cal.5th 594, 604.)

Although these are perhaps the most well-known examples of legislation allowing

petitioners to reopen final judgments of conviction without regard to their finality as of

the effective date of the legislation, they are not the only such instances of which we are

aware. (See Health & Saf. Code, § 11361.8, subd. (a) [petition procedure to recall or

28
dismiss sentences for persons currently serving sentences for specified drug-related

offenses if persons would not have been guilty of an offense or would have been guilty of

a lesser offense under Prop. 64, the Control, Regulate and Tax Adult Use of Marijuana

Act]; Pen. Code, § 1170.22 [petition procedure to recall or dismiss sentences, vacate

convictions, and obtain resentencing for persons serving sentences for engaging in

prostitution with prior prostitution conviction and knowledge of positive acquired

immunodeficiency syndrome (AIDS) test results]; Pen. Code, § 1170.91 [petition

procedure to recall sentence and obtain resentencing for persons currently serving felony

sentences if persons are or were United States military members and may be suffering

from sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance

abuse, or mental health problems as a result of military service].)

The prevalence of such legislation is not a sufficient reason on its own to affirm

the constitutionality of section 1170.95 on separation of powers grounds. However, in

our view, it confirms there is nothing especially unique about section 1170.95, which

appears to us to constitute a legitimate and ordinary exercise of legislative authority.

Further, it demonstrates the sweeping breadth and potentially drastic implications of the

People's separation of powers argument. Extending the holdings of the Bunn and King

decisions to prohibit the retroactive reopening of final judgments of conviction would call

into question the constitutionality of all the statutory provisions described ante, and

potentially others. Because we conclude such an extension is unwarranted, we need not

grapple with those potentially far-reaching consequences any further today.

29
 For all the foregoing reasons, we conclude section 1170.95 does not intrude upon

a core function of the judiciary. We further conclude the Legislature acted in conformity

with its institutional authority when it approved section 1170.95.

Next, the People contend section 1170.95 violates the rights of crime victims

enshrined in Marsy's Law. Marsy's Law amended article I, section 28 of the California

Constitution and provisions of the Penal Code to strengthen a "broad spectrum of victims'

rights …." (People v. Gross (2015) 238 Cal.App.4th 1313, 1317, 1318.) To name a few

illustrative examples, it guaranteed victims a right to seek and secure restitution from

convicted defendants (Cal. Const., art. I, § 28, subd. (b)(13)); increased the amount of

time between parole hearings for convicted defendants (Pen. Code, § 3041.5); and

afforded victims a right to prevent the disclosure to the defendant, or persons acting on

the defendant's behalf, of privileged or confidential information (Cal. Const., art. I, § 28,

subd. (b)(4)).

When determining whether Marsy's Law has been violated, our task is to interpret

and apply the initiative's language to effectuate the voters' intent. (Estate of Casserley

(2018) 22 Cal.App.5th 824, 833.) " 'We therefore first look to "the language of the

statute, affording the words their ordinary and usual meaning and viewing them in their

statutory context." ' [Citations.] ' " 'When statutory language is clear and unambiguous,

there is no need for construction and courts should not indulge in it.' " ' " (Ibid.)

The People argue section 1170.95 violates a provision in Marsy's Law affording

victims a right to "a speedy trial and prompt and final conclusion of the case and any

30
related post-judgment proceedings." (Cal. Const., art. I, § 28, subd. (b)(9).) This right is

enumerated with 16 other rights in section 28, subdivision (b) of the Constitution, and is

made enforceable under subdivision (c) by the victim, among others. According to the

People, section 1170.95 denies victims their speedy trial right because it "creat[es] an

entirely new path for murderers to reduce their lawfully imposed sentences …." We

disagree.

Marsy's Law established a victim's right to a "prompt and final conclusion" to

postjudgment proceedings. (Cal. Const., art. I, § 28, subd. (b)(9).) And, in furtherance of

that right, it substantially amended Penal Code provisions pertaining to parole. (Pen.

Code, § 3044; In re Vicks (2013) 56 Cal.4th 274, 283.) But it did not foreclose post-

judgment proceedings altogether. On the contrary, it expressly contemplated the

availability of such postjudgment proceedings, including in section 28, subdivision (b)(7)

of the Constitution, which affords victims a right to reasonable notice of "parole [and]

other post-conviction release proceedings," and in subdivision (b)(8), which grants

victims a right to be heard at "post-conviction release decision[s] …."

Both the Legislature and courts have recognized that victims may exercise these

rights during postjudgment proceedings that existed at the time the electorate approved

Marsy's Law, as well as postjudgment proceedings that did not exist when Marsy's Law

was approved. (§ 1170.126, subd. (m); People v. Superior Court (Kaulick) (2013) 215

Cal.App.4th 1279, 1300 [victims have right to be heard at dangerousness and

resentencing hearings under Prop. 36].) It would be anomalous and untenable for us to

conclude, as the People impliedly suggest, that the voters intended to categorically

31
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).)6

The People also argue section 1170.95 violates Marsy's Law because it deprives

victims of their right "[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, subd. (b)(9).) They argue trial courts are not required,

or even permitted, to consider the safety of the victim or the public under section

1170.95. Assuming without deciding the disposition of a section 1170.95 petition is a

postjudgment release decision, we find no merit to the People's claim.

The People are correct that the safety of the victim and the public are not pertinent

to whether a court may vacate the petitioner's murder conviction and resentence the

petitioner. As noted ante, that determination turns on whether the original charging

document permitted the prosecution to proceed under the felony-murder rule or murder

under the natural and probable consequences doctrine, the petitioner was convicted or

6 Further, we discern no other reason why a victim cannot receive a prompt and
final conclusion under section 1170.95. Section 1170.95 creates expeditious deadlines
for the petitions to which it applies, including a 60-day deadline for the prosecutor to
respond to the resentencing petition and a 30-day deadline for the petitioner to reply,
deadlines which may only be extended for good cause. (Id., subd. (c).) If the court issues
an order to show cause, it must then hold a hearing within 60 days to determine whether
to vacate the murder conviction and resentence the petitioner, another deadline subject to
extension only for good cause. (Id., subd. (d)(1).)
32
accepted a plea offer of murder, and the petitioner could not be liable for murder as a

result of the legislative amendments to sections 188 and 189. (§ 1170.95, subd. (a).)

However, the decision whether to vacate the murder conviction and resentence the

petitioner is not the only determination required by section 1170.95. If a court rules a

petitioner is entitled to vacatur of his or her murder conviction, it must then resentence

the petitioner on any remaining counts. (Id., 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." (Cal. Rules of Court, rule 4.421(b)(1), (c).) At

minimum, the trial 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. (Cal. Const., art. I, § 28, subd. (b)(16).)

Next, the People argue section 1170.95 conflicts with provisions in section 28,

subdivision (a) of the Constitution, setting forth the voters' findings and declarations.

Those provisions provide as follows: "The People of the State of California find and

declare … [¶] (4) The rights of victims … are enforceable through the enactment of

laws and through good-faith efforts and actions of California's elected, appointed, and

publicly-employed officials…. [¶] … [¶] (6) Victims of crime are entitled to finality in

their criminal cases." (Cal. Const., art. I, § 28, subd. (a)(4), (6).) However, as noted ante,

the enforcement provision of section 28 only applies to the substantive rights enumerated

in subdivision (b)—not the findings and declarations set forth in subdivision (a). (Id.,

33
subd. (c).) In light of this structure, it is clear to us the findings and declarations in

subdivision (a) "represent only a general statement of a problem identified by [the]

Legislature, and the goal the Legislature hoped to achieve," not an independent source of

enforceable rights. (People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950,

956.)

Finally, the People claim section 1170.95 violates uncodified initiative provisions

finding and declaring: (1) the criminal justice system has failed to "expeditiously finalize

the sentences and punishments of criminal wrongdoers"; and (2) Marsy's Law was

enacted to spare victims' families "prolonged and unnecessary suffering." (Prop. 9, §§ 2,

3.) "[T]he statements of purpose and intent in [an] 'uncodified section ... properly may be

utilized as an aid in construing' [an initiative], but they 'do not confer power, determine

rights, or enlarge the scope of [the] measure.' " (People v. Guzman (2005) 35 Cal.4th

577, 588.) Because the People's claim would require us to expand the scope of Marsy's

Law beyond its codified text, we find no merit to the People's contention.

The People raise one final set of challenges to Senate Bill 1437. They caution the

hearing procedures and remedies established by section 1170.95 may violate the

constitutional rights of petitioners seeking to vacate their convictions and obtain

resentencing. They contend the procedure permitting the prosecution to present evidence

during resentencing "potentially violates the principle of double jeopardy" and is

"unlikely to stand up to constitutional scrutiny." Further, they claim the remedies under

section 1170.95 may violate petitioners' rights to due process and a jury trial.

34
 We note there is authority calling into question the merits of at least some of the

People's arguments. (Lopez, supra, 38 Cal.App.5th at pp. 1114–1115 [rejecting

defendants' arguments that section 1170.95 violated their constitutional right to a jury];

People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 ["[T]he retroactive relief

(defendants) are afforded by Senate Bill 1437 is not subject to Sixth Amendment

analysis. Rather, the Legislature's changes constituted an act of lenity that does not

implicate defendants' Sixth Amendment rights."].)

However, we need not decide these matters to resolve this appeal. The People are

the individuals on whose behalf violations of criminal laws are prosecuted. (Abbott

Laboratories v. Superior Court (2018) 24 Cal.App.5th 1, 18.) But they do not represent

the particularized interests of persons who have been accused of criminal offenses or

petitioners seeking relief from convictions. Therefore, the People lack standing to

challenge the hearing and remedy provisions of section 1170.95 based on any alleged

infringement on petitioners' constitutional rights. (In re Cregler (1961) 56 Cal.2d 308,

313 ["[O]ne will not be heard to attack a statute on grounds that are not shown to be

applicable to himself …."]; Mathews v. Becerra (2017) 7 Cal.App.5th 334, 348, fn. 2,

review granted May 10, 2017, S240156 ["One may not generally claim standing to

vindicate the constitutional rights of others."].)

35
 IV

DISPOSITION

The order is reversed.7

McCONNELL, P.J.

I CONCUR:

IRION, J.

7 Lamoureux asks us to direct the trial court to assign the matter on remand to Judge
Angel M. Bermudez, the sentencing judge in her criminal trial. We decline her request as
prematurely raised because we have no way of knowing whether Judge Bermudez will be
available to resentence her at the appropriate time, if resentencing is warranted. Upon
remand, it will the responsibility of the sentencing court to make that determination.
(§ 1170.95, subd. (b)(1).)
36
O'Rourke, J., dissenting.

I respectfully dissent. Senate Bill No. 1437 is an unconstitutional amendment to

Proposition 7, in which the voters increased the punishment for first degree murder from

an indeterminate term of life 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. (See People v. Cooper (2002)

27 Cal.4th 38, 41-42.) "The purpose of [Proposition 7] was to substantially increase the

punishment for persons convicted of first and second degree murder." (Cooper, at p. 42.)

Proposition 7 did not authorize the Legislature to amend its provision without voter

approval. (Id. at p. 44.) Senate Bill No. 1437 addresses sentencing for first and second

degree murder,1 the very same subject matter encompassed by Proposition 7, by undoing

application of the penalties the voters designated in Proposition 7 to those defendants

coming within Senate Bill No. 1437's reforms. In short, the Legislature decided among

other things that certain categories of felony murder should not be punished and enacted

Senate Bill No. 1437 to eliminate them. This is the case even though the Legislature does

not directly refer to sentencing in the revised Penal Code sections. "What the Legislature

is prohibited from doing directly it cannot do indirectly." (Rainey v. Michel (1936) 6

Cal.2d 259, 282-283; accord, Howard Jarvis Taxpayers' Assn. v. Fresno Metropolitan

1 See Legislative Counsel's Digest, Senate Bill No. 1437 (2017-2018 Reg. Sess.),
Summary Digest, page 2, section 1, subdivisions (b), (e) ["There is a need for statutory
changes to more equitably sentence offenders in accordance with their involvement in
homicides"; "Reform is needed in California 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"] at
<https://perma.cc/2JB3-8T2T>.
Projects Authority (1995) 40 Cal.App.4th 1359, 1375.) By narrowing the scope of

liability for felony murder and murder under a natural and probable consequences theory,

the law eliminates all punishment for some defendants whom the Proposition 7 voters

had decided should be punished by the specified prison terms. Stated simply, Senate Bill

No. 1437 now "prohibits what the initiative authorizes . . . ." (People v. Superior Court

(Pearson) (2010) 48 Cal.4th 564, 571.)

Thus, the revisions put into place by Senate Bill No. 1437 are an impermissible

exercise of legislative authority. Under the California Constitution, the people of this

state reserve to themselves the power of initiative. (Cal. Const., art. IV, § 1; see

Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016,

1042.) "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).) The

Constitution further provides that "[t]he Legislature may amend or repeal an initiative

statute by another statute that becomes effective only when approved by the electors

unless the initiative statute permits amendment or repeal without the electors' approval."

(Cal. Const. art. II, § 10, subd. (c).) Thus, " '[w]hen a statute enacted by the initiative

process is involved, the Legislature may amend it only if the voters specifically gave the

Legislature that power, and then only upon whatever conditions the voters attached to the

Legislature's amendatory powers.' " (People v. Armogeda (2015) 233 Cal.App.4th 428,

434, see Howard Jarvis Taxpayers Association v. Newsom (2019) 39 Cal.App.5th 158,

167 [voters' power to decide whether Legislature can amend or repeal initiative statutes is

2
"absolute"]; see O.G. v. Superior Court (2019) 40 Cal.App.5th 626, 628 ["Under the

guise of 'amendment,' an initiative may not be 'annulled' by the Legislature"].)

Though courts generally accord a strong presumption of constitutionality to the

Legislature's acts (Amwest Surety Insurance. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253;

B.M. v. Superior Court of Riverside County (2019) 40 Cal.App.5th 742, 748), the

presumption cannot apply here, where Senate Bill No. 1437 changes definitions that were

integral to the increased penalties for murder enacted by the voters in Proposition 7. The

voters are presumed to have been aware of definitions of first and second degree murder,

including felony murder, when they enacted that initiative. (See People v. Gonzales

(2017) 2 Cal.5th 858, 869-871 [electorate is presumed to be aware of existing laws and

their judicial construction in effect at the time legislation is enacted, including legislation

enacted by initiative]; People v. Bloomfield (2017) 13 Cal.App.5th 647, 653 [same].)

Such an overruling of the People's wishes "violates the well settled rule that the

Legislature may not enact a law that thwarts the initiative process without the consent of

the people." (O.G. v. Superior Court, supra, 40 Cal.App.5th at p. 630.)

For the foregoing reasons, I would affirm the trial court's order denying

Lamoureux's Penal Code section 1170.95 petition.

O'ROURKE, J.