People v. Johns

• Decision Date: 08 June 2020
• Docket Number: E072412
• Citation: 50 Cal.App.5th 46,263 Cal.Rptr.3d 611
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerry JOHNS, Defendant and Appellant.

50 Cal.App.5th 46

263 Cal.Rptr.3d 611

The PEOPLE, Plaintiff and Respondent,

v.Gerry JOHNS, Defendant and Appellant.

E072412

Court of Appeal, Fourth District, Division 2, California.

Filed June 8, 2020

Steven Schorr, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Jason Anderson, District Attorney and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent.

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.

OPINION

SLOUGH, Acting P.J. Previously, an accused could be convicted of murder under the felony-murder rule or the natural and probable consequences doctrine of aider and abettor liability, even if the accused didn't kill or intend to kill the victim. The Legislature, exercising its authority to define substantive offenses, enacted Senate Bill 1437, which amended Penal Code sections 188 and 189 to require more. (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (S.B. 1437).) Felony murder and aiding and abetting a murder remain crimes, but to be convicted of murder it isn't enough to participate in a felony that results in a death. Now, a person so accused must have killed the victim, aided the person who did kill the victim with the intent to kill them, or acted as a major participant in the felony with reckless indifference to human life.

S.B. 1437 also created a new petitioning procedure that allows offenders previously convicted under the felony-murder rule or the natural and probable consequences doctrine to have their murder convictions vacated if they couldn't be convicted of murder under the new law. ( Pen. Code, § 1170.95, unlabeled statutory citations refer to this code.)

Appellant Gerry Johns claims to be such an offender. He suffered a murder conviction based on his aiding and abetting a 1981 robbery of four people in a car at a drive-through restaurant, during which a codefendant killed one of the victims with a shotgun. ( People v. Johns (1983) 145 Cal.App.3d 281, 287, 295, 193 Cal.Rptr. 182.) Johns filed a petition to vacate his murder conviction under Penal Code section 1170.95. The San Bernardino District Attorney's Office opposed the petition and moved to strike it, arguing S.B. 1437 is invalid as an unauthorized amendment of two voter-approved ballot initiatives, Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7 (Proposition 7)) and Proposition 115 (Ballot Pamp., Prim. Elec. (June 5, 1990) text of Prop. 115 (Proposition 115)). The trial court agreed, found S.B. 1437 unconstitutionally infringed on the prerogatives of the voters, and struck Johns' petition. Johns appeals, seeking reversal and remand for the trial court to review his petition on the merits.

We agree with Johns that S.B. 1437 is constitutional and he is entitled to have the trial court consider his petition. Proposition 7 addressed the punishment appropriate for murder, not the elements of the offense, and Proposition 115 added predicates for applying the felony-murder rule, which S.B. 1437 left intact. We therefore conclude S.B. 1437 addressed related but distinct areas of the law which the initiatives left in the power of the Legislature to amend. ( People v. Kelly (2010) 47 Cal.4th 1008, 103 Cal.Rptr.3d 733, 222 P.3d 186 ( Kelly ).) The new statutory provisions therefore did not amend either ballot initiative. We also conclude retroactive application of S.B. 1437 through the petitioning process doesn't violate the separation of powers doctrine or the Victims' Bill of Rights of 2008 (Marsy's Law), as the district attorney argues.¹

We will therefore reverse the judgment of the trial court and remand the case for further proceedings called for by section 1170.95.

I

BACKGROUND

A. Statutory Background

1. Proposition 7

Proposition 7, known as the Death Penalty Act, increased the penalties for offenders convicted of first and second degree murder. The voters approved those changes on November 7, 1978.

Before Proposition 7, Penal Code section 190 punished offenders convicted of first degree murder by "death, confinement in state prison for life without possibility of parole, or confinement in state prison for life" and second degree murder "by imprisonment in the state prison for five, six, or seven years."² (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) (1978 Ballot Pamphlet) text of Prop. 7, § 1, p. 33.) As the 1978 Ballot Pamphlet pointed out, at that time, a person who received the minimum sentence for first degree murder would be eligible for parole after serving only seven years, and, due to good behavior credits, a person sentenced to a mid-term six years for second degree murder could be eligible for parole after serving only four years. (Id. , Legis. Analyst, analysis of Prop. 7, p. 32.)

The initiative increased the penalties for both first and second degree murder. It amended Penal Code section 190 to increase the minimum sentence for first degree murder to a term of 25 years to life. (1978 Ballot Pamp., supra , Legis. Analyst, analysis of Prop. 7, p. 32; text of Prop. 7, § 1, p. 33.) It also increased the sentence for second degree murder in all cases to 15 years to life. (Ibid. ; see also People v. Cooper (2002) 27 Cal.4th 38, 42, 115 Cal.Rptr.2d 219, 37 P.3d 403.)

Not relevant here, other provisions of Proposition 7 addressed the imposition of the death penalty, including by expanding the list of special circumstances making an offense death-eligible and revising the law relating to mitigating or aggravating circumstances for death-eligible offenses. (1978 Ballot Pamp., supra , Legis. Analyst, analysis of Prop. 7, p. 32.) Penal Code section 190.1 set phases for death penalty cases. Penal Code section 190.2 set the special circumstances under which a person convicted of first degree murder could be punished by death or life without parole. Penal Code section 190.3 set the procedure for imposing the death penalty on offenders convicted of special-circumstance first degree murder. Penal Code section 190.4 set the procedure for determining whether a murder included a special circumstance.

And Penal Code section 190.5 made offenders younger than 18 years old ineligible for the death penalty. (1978 Ballot Pamp., text of Prop. 7, §§ 4 at p. 33, 6 at p. 42, 8 at p. 43, 10 at p. 45, 12 at p. 46.)

Proposition 7 did not include a provision authorizing the Legislature to amend its provisions without voter approval. (See 1978 Ballot Pamp., supra , text of Prop. 7, §§ 1-12, pp. 33, 41-46; People v. Cooper, supra , 27 Cal.4th at p. 44, 115 Cal.Rptr.2d 219, 37 P.3d 403.)

2. Proposition 115

Twelve years later, the voters passed Proposition 115, known as the Crime Victims Justice Reform Act, which amended the California Constitution to make several changes to procedures and rights applicable in criminal cases. (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990).)

The proposal indicated the amendment was a response to "decisions and statutes [that] have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth." (Ballot Pamp., Prim. Elec. (June 5, 1990) (1990 Ballot Pamphlet) text of Prop. 115, pp. 33, 65-69.) Among its core provisions, the initiative attempted to bar the courts from construing the California Constitution as affording to criminal defendants greater rights than the United States Constitution affords. However, the California Supreme Court concluded such a significant revision to the constitutional dispersal of government power must be passed at a constitutional convention or by initiative initially proposed by the Legislature. ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077.)

The initiative also changed the rules regarding criminal discovery, prohibited post-indictment preliminary hearings, established the People's right to due process and speedy criminal trials, and allowed hearsay in preliminary hearings. (1990 Ballot Pamp., supra , text of Prop. 115, pp. 33, 65-69; see also Raven v. Deukmejian, supra , 52 Cal.3d at p. 342, 276 Cal.Rptr. 326, 801 P.2d 1077 [summarizing Proposition 115].)

Relevant to this case, the initiative amended Penal Code sections 189 and 190.2. Previously, Penal Code section 189 defined as first degree murder any killing "committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288 [lewd and lascivious conduct]." The initiative expanded its definition of first degree murder by adding killings that occurred during the commission of kidnapping, train wrecking, and various additional sex offenses. (1990 Ballot Pamp., supra , text of Prop. 115, § 9, p. 66.) The initiative amended Penal Code section 190.2 to require a sentence of death or life without the possibility of parole in two situations where the offender isn't the actual killer—when they aid or support a killer and act with the intent to kill and when they are a major participant in certain crimes (like robbery) where a death occurs, and act with reckless indifference to human life. (1990 Ballot Pamp., supra , text of Prop. 115, § 10, p. 66.)

Proposition 115 permitted the Legislature to amend its terms by a two-thirds vote in each house of the Legislature. (1990 Ballot Pamp., supra , text of Prop. 115, § 30, p. 69.)

3. S.B. 1437

Generally, malice is an essential element of the crime of murder. ( § 187.)

Malice may be either express or implied. It is express "when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." ( § 188, subd. (a)(1).) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and...