People v. Bucio

• Decision Date: 27 April 2020
• Docket Number: 2d Crim. No. B299688
• Citation: 48 Cal.App.5th 300,261 Cal.Rptr.3d 692
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Maria Lissette Urena BUCIO, Defendant and Appellant.

48 Cal.App.5th 300

261 Cal.Rptr.3d 692

The PEOPLE, Plaintiff and Respondent,

v.Maria Lissette Urena BUCIO, Defendant and Appellant.

2d Crim. No. B299688

Court of Appeal, Second District, Division 6, California.

Filed April 27, 2020

Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, for Plaintiff and Respondent.

Jennifer Hansen, 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 Amici Curiae on behalf of Defendant and Appellant.

TANGEMAN, J.

Maria Lissette Urena Bucio appeals an order dismissing her petition for resentencing pursuant to Penal Code ¹ section 1170.95. Bucio contends the trial court erred when it found Senate Bill No. 1437 (SB 1437) unconstitutional. We agree and reverse.

FACTUAL AND PROCEDURAL HISTORY

Bucio aided and abetted her nephew in a robbery which resulted in the death of a person. The jury found her guilty of robbery and first degree murder, and found true the allegation that the murder occurred during the course of the robbery. (§§ 211, 187, 190.2, subd. (a)(17)(A).) The jury found not true the allegation that Bucio aided and abetted the robbery with reckless indifference to human life. (§ 190.2, subd. (d).) The trial court sentenced her to 25 years to life on the murder conviction and stayed the five-year sentence on the robbery conviction pursuant to section 654. We affirmed the judgment in an unpublished decision. ( People v. Bucio (Apr. 25, 2013, B232504), 2013 WL 1769915 [nonpub. opn.].)

Following enactment of SB 1437 in 2018, Bucio filed a petition for resentencing pursuant to section 1170.95. She declared she was convicted of first degree murder "pursuant to the felony murder rule or the natural and probable consequences doctrine" and "could not now be convicted because of the changes to [section] 189" because she was "not the actual killer"; "did not, with the intent to kill, aid, abet, ... or assist the actual killer"; and "was not a major participant in the felony or ... did not act with reckless indifference to human life." The prosecution filed a motion to dismiss the petition on the ground that SB 1437 is unconstitutional.

The trial court found that "SB 1437 is unconstitutional in that it conflicts with ... Propositions 7 and 115, and improperly invades the province of the executive branch by effectively granting pardons to defendants who have been convicted and sentenced for felony-murder."

After the trial court’s ruling, our colleagues in the Fourth Appellate District upheld the constitutionality of SB 1437 in two companion cases: People v. Superior Court (Gooden ) (2019) 42 Cal.App.5th 270, 255 Cal.Rptr.3d 239 ( Gooden ) and People v. Lamoureux (2019) 42 Cal.App.5th 241, 255 Cal.Rptr.3d 253 ( Lamoureux ). We also conclude that SB 1437 is constitutional.

DISCUSSION

The Legislature enacted SB 1437 to "amend the [felony-murder] rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) In so doing, the Legislature sought 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." (Stats. 2018, ch. 1015, § 1, subd. (e).)

SB 1437 amended section 188, which defines malice. Now, to be convicted of murder, a principal must act with malice aforethought. Malice can no longer "be imputed to a person based solely on [their] participation in a crime." (§ 188, subd. (a)(3).) SB 1437 also amended section 189 to restrict the application of the felony-murder rule and the natural and probable consequences doctrine. Now, to be convicted of felony murder, the participant in a specified felony must be: (1) the actual killer, (2) one who acted with the intent to aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree, or (3) a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).) SB 1437 also added section 1170.95, which permits those convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the sentencing court to vacate the murder conviction and resentence on any remaining counts. ( § 1170.95, subd. (a).)

If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner must be resentenced "on any remaining counts in the same manner as if the petitioner had not been previously ... sentenced, provided that the new sentence, if any, is not greater than the initial sentence." ( § 1170.95, subd. (d)(1).)

Here, it is undisputed that Bucio is eligible for relief if SB 1437 is constitutional. The Ventura County District Attorney (District Attorney) contends SB 1437 is unconstitutional because it (1) amends Propositions 7 and 115, (2) violates separation of powers, and (3) amends the Victim Bill of Rights Act of 2008 (Marsy’s Law). Whether legislative enactments are constitutional presents a question of law which we review de novo. ( Vergara v. State of California (2016) 246 Cal.App.4th 619, 642, 209 Cal.Rptr.3d 532.) Like our colleagues in the Fourth Appellate District, we conclude that SB 1437 is constitutional.

Proposition 7 and Proposition 115

The Legislature may amend or repeal a statute enacted by voter initiative only with the approval of the electorate, unless the initiative statute provides otherwise.

( Cal. Const., art. II, § 10, subd. (c).) To determine whether legislation amends a voter initiative, we must decide whether legislation "prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ( Pearson ); see also Gooden , supra , 42 Cal.App.5th at pp. 279-280, 255 Cal.Rptr.3d 239.) "But this does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative’s provisions, is necessarily an amendment .... ‘The Legislature remains free to address a " ‘related but distinct area’ " [citations] or a matter that an initiative measure "does not specifically authorize or prohibit." ’ [Citations.]" ( Pearson , at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858, original italics.)

The District Attorney contends SB 1437 unconstitutionally amends Proposition 7 without the electorate’s approval. Proposition 7, also known as the Briggs Initiative, was adopted by voters in 1978. It amended section 190 to increase 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 it 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, as approved by voters, Gen. Elec. (Nov. 7, 1978), §§ 1-2.) The initiative also expanded the special circumstances in which a person would be eligible for the death penalty or life without parole. (Id . at §§ 6-7.)

The District Attorney argues SB 1437 unconstitutionally amends Proposition 7 by changing the penalty for murder through indirect means, i.e., by reclassifying murders as lesser crimes. By doing so, the argument goes, the Legislature is attempting to do indirectly that which it cannot do directly. ( In re Oluwa (1989) 207 Cal.App.3d 439, 446, 255 Cal.Rptr. 35.) We are not persuaded by this argument.

Whether SB 1437 amends Proposition 7 is a question of statutory interpretation. ( Pearson , supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.) We must "first consider the initiative’s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voter’s intent and understanding of a ballot measure." ( Ibid . )

In Pearson , supra , 48 Cal.4th at page 573, 107 Cal.Rptr.3d 265, 227 P.3d 858, our Supreme Court considered whether section 1054.9, which provided for postconviction discovery in writ of habeas corpus proceedings, constituted an amendment of Proposition 115, which provided that "[n]o order requiring discovery shall be made in criminal cases " (§ 1054.5, subd. (a), italics added). The court interpreted the language of Proposition 115, including the phrase "criminal cases," to apply to criminal trial proceedings, and not habeas corpus proceedings. ( Pearson , at pp. 571-572, 107 Cal.Rptr.3d 265, 227 P.3d 858.) The court observed that a "habeas corpus matter has long been considered a separate matter from the criminal case itself," and it noted several distinctions between the purpose of discovery in a criminal trial and in a habeas corpus proceeding. ( Id . at p. 572, 107 Cal.Rptr.3d 265, 227 P.3d 858.) Section 1054.9 was not an amendment because it addressed "an area that is related to Proposition 115’s discovery provisions but, crucially, it is also a distinct area." ( Id . at p. 573, 107 Cal.Rptr.3d 265, 227 P.3d 858.)

In People v. Cooper (2002) 27 Cal.4th 38, 115 Cal.Rptr.2d 219, 37 P.3d 403 ( Cooper ), our Supreme Court considered whether section 2933.1, subdivision (c) amende...