People v. Alaybue

Decision Date25 June 2020
Docket NumberH047221
Citation51 Cal.App.5th 207,264 Cal.Rptr.3d 876
Parties The PEOPLE, Plaintiff and Respondent, v. Malik ALAYBUE, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Michael C. Sampson, Monterey, Under Appointment by the Sixth District, Appellate Program, for Defendant and Appellant.

Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Leif M. Dautch, Deputy Attorney General, for Plaintiff and Respondent.

Jeffrey F. Rosen, District Attorney, County of Santa Clara, David R. Boyd, Deputy District Attorney, for Amicus Curiae.

Mihara, J.

In November 2006, appellant Malik Alaybue pleaded no contest to two counts of second degree murder ( Pen. Code, § 187 )1 and two counts of attempted murder ( §§ 187, 664, subd. (a) ). He also admitted a gang allegation (§ 186.22, subd. (b)(1)(C)) for each count. Appellant was sentenced to concurrent indeterminate terms of 15 years to life on the second degree murder convictions, consecutive to concurrent five-year determinate terms on the attempted murder convictions. In January 2019, appellant petitioned the trial court to vacate his murder and attempted murder convictions under newly enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court denied the petition. It found that Senate Bill 1437 was unconstitutional because it impermissibly 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)). The court also found that Senate Bill 1437 did not apply to the crime of attempted murder.

On appeal, appellant argues that Senate Bill 1437 did not amend Propositions 7 and 115, that its provisions do not violate the separation of powers doctrine, that it applies to attempted murder convictions, and that therefore he is entitled to resentencing on his murder and attempted murder convictions. Respondent Attorney General takes the position that Senate Bill 1437 is constitutional, but maintains that Senate Bill 1437 applies only to murder and does not apply to attempted murder. Amicus curiae District Attorney for the County of Santa Clara (the District Attorney) contends that Senate Bill 1437 is unconstitutional, both because it amends Propositions 7 and 115 and because it violates separation of powers principles.2

We conclude that Senate Bill 1437 is constitutional, as it does not amend Propositions 7 and 115 and it does not violate the separation of powers doctrine. However, we also determine that Senate Bill 1437 does not apply to the offense of attempted murder. Accordingly, we reverse the trial court's order denying the petition so that the court may reconsider appellant's petition, but only as to the murder convictions.

I. Procedural History

In January 2019, appellant filed a petition seeking to vacate his murder and attempted murder convictions under Senate Bill 1437. The District Attorney opposed the petition, arguing that Senate Bill 1437: (1) unconstitutionally amended Proposition 7 and Proposition 115; (2) did not apply to attempted murder; and (3) violated the separation of powers doctrine. The parties stipulated that if Senate Bill 1437 was constitutional, then "the petitioner in this case will be eligible [for] ... re-sentencing" on his murder convictions.3 As described above, the trial court denied the petition.

II. Statutory Framework
A. Proposition 7

Proposition 7 was approved by voters in 1978. The initiative increased the punishment for first and second degree murder by amending section 190. ( People v. Cruz (2020) 46 Cal.App.5th 740, 753, 260 Cal.Rptr.3d 166 ( Cruz ).) It also "sought to strengthen and expand California's death penalty with amendments to sections 190.1 through 190.5." ( Id. at pp. 753-754, 260 Cal.Rptr.3d 166.)

Prior to Proposition 7's passage, "a first degree murder conviction was punishable by life imprisonment with the possibility of parole after seven years," and a second degree murder conviction was punishable by a term of five, six, or seven years in prison. ( Cruz, supra , 46 Cal.App.5th at p. 754, 260 Cal.Rptr.3d 166.) Proposition 7 increased the punishment for first degree murder to life imprisonment with the possibility of parole after 25 years. The penalty for second degree murder was increased to life imprisonment with the possibility of parole after 15 years. ( Cruz , at p. 754, 260 Cal.Rptr.3d 166.)

B. Proposition 115

Proposition 115 was approved by voters in 1990. Pertinent here, it amended section 189, which defines the degrees of murder and addresses felony-murder liability. Proposition 115 added kidnapping, train wrecking, and certain sex offenses to the list of predicate felony offenses in section 189 that qualify for first degree felony murder. ( People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 278, 255 Cal.Rptr.3d 239 ( Gooden ).)

"Proposition 115 also ‘revised the scope of capital liability for aiding and abetting felony murders’ by amending section 190.2 to indicate that for first degree felony murder "every person, not the actual killer, who, with reckless indifference to human life and as a major participant" aids or abets the crime may be convicted of special circumstance murder.’ [Citation.]" ( Cruz, supra , 46 Cal.App.5th at p. 759, 260 Cal.Rptr.3d 166.)

C. Senate Bill 1437

Senate Bill 1437, which became effective January 1, 2019, was enacted based on the Legislature's express finding that "[i]t is 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." (Stats. 2018, ch. 1015, § 1.) It did so by amending section 188, which defines malice aforethought, and section 189, which addresses felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.)

Section 187, which was not amended by Senate Bill 1437, defines murder as "the unlawful killing of a human being, or a fetus, with malice aforethought." Section 188 defines "malice" "[f]or purposes of Section 187." Section 188 provides that "malice may be express or implied. [¶] (1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart." ( § 188, subd. (a)(1)-(2).) Senate Bill 1437 added subdivision (a)(3) to section 188, which now 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." In so doing, the Legislature stated in the uncodified statutory findings and declarations that it intended that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1.)

Senate Bill 1437 also added section 189, subdivision (e), which provides that "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder 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, as described in subdivision (d) of Section 190.2."

Finally, Senate Bill 1437 added section 1170.95, which allows "[a] person convicted of felony murder or murder under the natural and probable consequences theory" to petition the sentencing court to vacate the murder conviction. To do so, all of the following conditions must apply: "(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 [the] changes to [s]ection 188 or 189 made effective January 1, 2019." ( § 1170.95, subd. (a).)

If the petitioner is found eligible for relief, the conviction is vacated and the petitioner is 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 "murder was charged generically, and the target offense was not charged," then the petitioner's murder conviction must be "redesignated as the target offense or underlying felony for resentencing purposes." ( § 1170.95, subd. (e).)

III. Discussion
A. Constitutionality of Senate Bill 1437

"We review de novo questions of interpretation and constitutionality of a statute." ( Finberg v. Manset (2014) 223 Cal.App.4th 529, 532, 167 Cal.Rptr.3d 109.)

The California Constitution prohibits the Legislature from amending or repealing a voter initiative, unless the initiative so provides. ( Cal. Const., art. II, § 10, subd. (c).) " [T]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to "pro...

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