People v. Doan

• Decision Date: 03 December 2020
• Docket Number: G057918
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ELVIS DAI DOAN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ELVIS DAI DOAN, Defendant and Appellant.

G057918

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

December 3, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 11WF0963)

OPINION

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded.

David L. Polsky, 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.

Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.

* * * In 2019, defendant Elvis Dai Doan filed a petition under Penal Code section 1170.95,¹ seeking relief from an attempted murder conviction he suffered in 2015. Section 1170.95 was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which also amended sections 188 and 189 to limit accomplice liability for murder under the natural and probable consequences doctrine and the felony-murder rule. (Stats. 2018, ch. 1015.) Under section 1170.95, qualifying defendants can petition the superior court to have their murder convictions vacated and be resentenced. (Stats. 2018, ch. 1015, § 4.) Here, the trial court did not determine whether defendant is entitled to relief under section 1170.95; instead, the court denied the petition on the ground that Senate Bill 1437 amends statutes approved by voters in Propositions 7 and 115 and is therefore unconstitutional.

Review is pending in the Supreme Court on the issue of whether Senate Bill 1437 applies to attempted murder liability under the natural and probable consequences doctrine. (People v. Lopez (2019) 38 Cal.App.5th 1087, rev. granted Nov. 13, 2019, S258175; People v. Dennis (2020) 47 Cal.App.5th 838, 844-847, rev. granted July 29, 2020, S262184; People v. Munoz (2019) 39 Cal.App.5th 738, rev. granted Nov. 26, 2019, S258234.)

Appealing from the order denying his petition, defendant argues Senate Bill 1437 is constitutional. The California Attorney General filed an amicus curiae brief on behalf of defendant, defending the constitutionality of Senate Bill 1437. The Orange County District Attorney, representing the People in this appeal, maintains Senate Bill 1437 unconstitutionally amends Propositions 7 and 115 and the court's order should be affirmed.

Since the trial court's ruling, Senate Bill 1437 has been upheld as constitutional by panels of this court (People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762 (Solis); People v. Prado (2020) 49 Cal.App.5th 480) and by our colleagues in Division One of this district (People v. Superior Court (Gooden) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux)) and Division Two (People v. Lippert (2020) 53 Cal.App.5th 304; People v. Johns (2020) 50 Cal.App.5th 46). Several other appellate districts have concurred. (People v. Lombardo (2020) 54 Cal.App.5th 553, 560-561 [3d App. Dist.]; People v. Murillo (2020) 54 Cal.App.5th 160, 166, fn. 3 [2d App. Dist. Div. 1]; People v. Nash (2020) 52 Cal.App.5th 1041, 1053 [5th App. Dist.]; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 902, 917 [3d App. Dist.]; People v. Lopez (2020) 51 Cal.App.5th 589, 601-602 [2d App. Dist, Div. 2]; People v. Alaybue (2020) 51 Cal.App.5th 207, 211-222 [6th App. Dist.]; People v. Smith (2020) 49 Cal.App.5th 85, 91-92, rev. granted July 22, 2020, S262835 [2d App. Dist. Div. 5];² People v. Bucio (2020) 48 Cal.App.5th 300, 306-312 [2d App. Dist., Div. 6].) We agree with these well-reasoned decisions and conclude Senate Bill 1437 is constitutional. We reverse the court's order denying defendant's petition and remand the matter for the court to consider the petition on its merits.

FACTUAL AND PROCEDURAL HISTORY

Following a gang shooting involving members of the Tiny Rascal Gang, defendant was charged with murder (§ 187, subd. (a); count 1), attempted murder(§§ 664, subd. (a), 187, subd. (a); count 2), shooting at an occupied motor vehicle (§ 246; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). The information also alleged the offenses in counts 1 through 3 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that in the commission of these offenses, a principal discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)).

In 2015, defendant pleaded guilty to attempted murder, shooting at an occupied motor vehicle, and active participation in a criminal street gang. He also admitted the attempted murder offense was committed for the benefit of a criminal street gang. Pursuant to a plea agreement, the remaining charges and allegations were dismissed and defendant was sentenced to prison for 21 years 4 months.

In 2019, defendant petitioned for resentencing under section 1170.95. The district attorney filed a response, opposing defendant's petition on three grounds: (1) Senate Bill 1437 is unconstitutional because it amends Propositions 7 and 115; and even if constitutional, defendant is statutorily ineligible for relief because (2) he was not convicted of first or second degree murder; and (3) he aided and abetted the killing with malice aforethought. The court denied the petition on the ground that Senate Bill 1437 materially amends section 190, as enacted by the electorate in Proposition 7, and materially amends sections 189 and 190.2, as amended by the electorate in Proposition 115. Defendant appealed.

DISCUSSION

Senate Bill 1437 eliminated liability for murder under the natural and probable consequences doctrine by amending section 188 to prohibit malice from being imputed to a defendant based only on his or her participation in a crime. (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) It also limited application of thefelony-murder rule by amending section 189 to provide that a defendant can only be convicted of first degree felony murder if the defendant 1) was the actual killer; or 2) was not the killer but with the intent to kill, aided, abetted, induced or otherwise assisted the actual killer in the commission of first degree murder; or 3) "was a major participant in the underlying felony and acted with reckless indifference to human life . . . ." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)³ In section 1170.95, the Legislature created a process for the retroactive application of these statutory changes. Pursuant to section 1170.95, a defendant previously convicted of murder under either the natural and probable consequences theory or the felony-murder rule, who could not be convicted of murder now under the amended statutes, can petition the court for vacatur of the murder conviction and resentencing. (Stats. 2018, ch. 1015, § 4.)

The court denied defendant's section 1170.95 petition on the ground that Senate Bill 1437 violates article II, section 10, subdivision (c) of the California Constitution by amending Propositions 7 and 115. This constitutional provision prohibits the Legislature from amending a statute enacted through a voter initiative without "approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval." (People v. Cooper (2002) 27 Cal.4th 38, 44.) However, our Supreme Court has explained, "[T]he Legislature remains free to enact laws addressing the general subject matter of an initiative, or a 'related but distinct area' of law that an initiative measure 'does not specifically authorize or prohibit.'" (People v. Kelly (2010) 47 Cal.4th 1008, 1026, fn. 19; accord, People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

We previously considered the issue of whether Senate Bill 1437 constitutes an unconstitutional amendment of Propositions 7 and 115 in Cruz, supra, 46 Cal.App.5th 740, Solis, supra, 46 Cal.App.5th 762, and People v. Prado, supra, 49 Cal.App.5th 480. In these decisions, we concluded Senate Bill 1437 amends neither initiative and is constitutional. The arguments raised by the district attorney in this case are the same ones we have previously rejected. We see no reason to depart from our analysis and conclusions in our prior cases.

Proposition 7, when approved by voters in a statewide election in November 1978, increased the penalties for first and second degree murder by amending section 190. (Cruz, supra, 46 Cal.App.5th at pp. 753-754.) In Cruz, we rejected the district attorney's assertion that Senate Bill 1437's amendments to sections 188 and 189 alter the punishment for murder set by Proposition 7. (Cruz, at p. 754.) We explained: "Senate Bill 1437 does not alter the penalty for murder. After the enactment of Senate Bill 1437, a first degree murder conviction still results in a penalty of life imprisonment with the possibility of parole after 25 years and a second degree murder conviction results in a penalty of life imprisonment with the possibility of parole after 15 years, as required by Proposition 7. Senate Bill 1437 does not authorize reduced sentences for such convictions. Thus, Senate Bill 1437's amendments do not take away from Proposition 7's provisions." (Ibid.)

In Cruz and Solis, we also rejected the district attorney's contention that the Legislature could not alter the elements of murder with the passage of Senate Bill 1437 because the penalty for murder approved by the voters in Proposition 7 was based on the definition of murder at...