People v. Lippert

Decision Date11 August 2020
Docket NumberE072688
Citation53 Cal.App.5th 304,267 Cal.Rptr.3d 535
Parties The PEOPLE, Plaintiff and Respondent, v. David James LIPPERT, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals
OPINION

CODRINGTON, J.

I.BACKGROUND

On January 1, 2019, Senate Bill No. 1437 became effective. (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015).) The legislation made several changes to the law of murder, including enacting Penal Code section 1 1170.95, which provides a procedure by which certain defendants previously convicted of murder could, under certain circumstances, petition to vacate the conviction as inconsistent with the law as modified by Senate Bill No. 1437.

Defendant and appellant, David James Lippert, filed a petition under section 1170.95 to vacate his 2003 murder conviction. The parties stipulated that defendant made a prima facie showing that he "fall[s] within the parameters for resentencing" under section 1170.95. Plaintiff and respondent, the San Bernardino County District Attorney's Office (the People), however, moved to strike the petition on the ground that Senate Bill No. 1437 is unconstitutional because it (1) impermissibly amended Proposition 7 (Ballot Pamp., Prim. Gen. Elec. (Nov. 7, 1978) text of Prop. 7 (Proposition 7)); (2) impermissibly amended Proposition 115 (Ballot Pamp., Prim. Elec. (June 5, 1990) text of Prop. 115 (Proposition 115)); (3) violates separation of powers principles; and (4) violates Victims' Bill of Rights of 2008 (Marsy's Law). The trial court agreed Senate Bill No. 1437 unconstitutionally amended Propositions 7 and 115, and struck defendant's petition without addressing the People's remaining arguments.

Defendant timely appealed. Defendant asserts the trial court erred in concluding that Senate Bill No. 1437 is unconstitutional. The Attorney General's Office filed an amicus brief agreeing with defendant's claims of error. We agree and reverse.

II.DISCUSSION
A. Background2
1. Proposition 7

"Proposition 7, the so-called Briggs Initiative, enacted by the electorate on November 7, 1978, effected a number of changes in the criminal law." ( In re Oluwa (1989) 207 Cal.App.3d 439, 442, 255 Cal.Rptr. 35.) "The purpose of [Proposition 7] was to substantially increase the punishment for persons convicted of first and second degree murder." ( People v. Cooper (2002) 27 Cal.4th 38, 42, 115 Cal.Rptr.2d 219, 37 P.3d 403.)

Among other things, Proposition 7 "rewrote" section 190, which outlines the penalties for murder. ( In re Oluwa, supra , 207 Cal.App.3d at pp. 442-443, 255 Cal.Rptr. 35.) Specifically, Proposition 7 "increased the punishment for first degree murder from an indeterminate term of life imprisonment 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 in state prison." ( People v. Cooper, supra , 27 Cal.4th at pp. 41-42, 115 Cal.Rptr.2d 219, 37 P.3d 403.) Proposition 7 also "added several special circumstances to section 190.2 ..., expanded the list of felonies subject to the ‘felony-murder’ special circumstance, and deleted the requirement that a felony murder be willful, deliberate, and premeditated." ( People v. Weidert (1985) 39 Cal.3d 836, 844, 218 Cal.Rptr. 57, 705 P.2d 380 ; see Prop. 7, § 6.)3 Under Proposition 7, a special circumstance warranting the death penalty or a life sentence exists if the "murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit" one of nine enumerated felonies. (Prop. 7, § 6.)

Proponents of Proposition 7 argued it would "give every Californian the protection of the nation's toughest, most effective death penalty law." (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) at p. 34.) They claimed Proposition 7 was necessary to replace the "weak and ineffective" death penalty law that had recently been passed by "anti-death penalty politicians" in the Legislature. (Ibid. ) To that end, Proposition 7 "did not authorize the Legislature to amend its provisions without voter approval." ( People v. Cooper, supra , 27 Cal.4th at p. 44, 115 Cal.Rptr.2d 219, 37 P.3d 403.)

2. Proposition 115

"Proposition 115, the Crime Victims Justice Reform Act,’ changed criminal law in several respects on June 6, 1990." ( Tapia v. Superior Court (1991) 53 Cal.3d 282, 286, 279 Cal.Rptr. 592, 807 P.2d 434.) Among other things, Proposition 115 amended section 189, the felony-murder statute, "to add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a charge of first degree murder." ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 344, 276 Cal.Rptr. 326, 801 P.2d 1077.) Proposition 115 also added section 190.2, subdivision (c) which states that "[e]very person, not the actual killer who, with the intent to kill, aids ... or assists any actor in the commission of murder in the first degree shall suffer death or" a life sentence, if one or more of the special circumstances stated in section 190.2, subdivision (a) is found true. (Prop. 115, § 10.) One such circumstance, added by Proposition 7, is if the murder occurred during the commission of certain offenses enumerated in section 190.2, subdivision (a)(17). (§ 190.2, subd. (a)(17).) Those enumerated offenses include mayhem (§ 203) and rape by instrument (§ 289). (Prop. 115, §§ 9, 10.)

Proposition 115 also added section 190.2, subdivision (d), which provides that, "[n]otwithstanding subdivision (c)" of section 190.2, anyone who acts "with reckless indifference to human life," is a "major participant" in certain felonies listed in section 190.2, subdivision (a)(17), and who is therefore found guilty of first degree murder because someone was killed during the commission of the felony (or felonies), "shall suffer death" or a life sentence. (Prop. 115, § 10.)

Proposition 115 provided that it could be amended only by the voters or through a law passed by two-thirds of both chambers of the Legislature. (1990 Ballot Pamp. (June 5, 1990) text of Prop. 115, § 30, 69.)

3. Senate Bill No. 1437

On September 30, 2018, the Governor signed Senate Bill No. 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending ... sections 188 and 189, as well as by adding ... section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." ( People v. Martinez (2019) 31 Cal.App.5th 719, 722-723, 242 Cal.Rptr.3d 860 ( Martinez ).)

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." (Stats. 2018, ch. 1015, § 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." (Stats. 2018, ch. 1015, § 1, subd. (e).)

Prior to Senate Bill No. 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. ( People v. Chiu (2014) 59 Cal.4th 155, 161, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; In re R.G. (2019) 35 Cal.App.5th 141, 144, 247 Cal.Rptr.3d 24.) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed "for the criminal harms [the defendant] ... naturally, probably, and foreseeably put in motion." [Citations.] [Citation.]" ( In re R.G., supra , at p. 144, 247 Cal.Rptr.3d 24.) "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, 14 Cal.Rptr.3d 281, 91 P.3d 222.) Aider and abettor liability under the doctrine was thus "vicarious in nature." ( People v. Chiu, supra , at p. 164, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

Senate Bill No. 1437 "redefined ‘malice’ in section 188. 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 [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)" ( In re R.G., supra , 35 Cal.App.5th at p. 144, 247 Cal.Rptr.3d 24.) "Senate Bill No. 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." ( People v. Munoz (2019) 39 Cal.App.5th 738, 749, 252 Cal.Rptr.3d 456 ; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100, 252 Cal.Rptr.3d 33, review granted Nov. 13, 2019, S258175; Martinez, supra , 31 Cal.App.5th at p. 723, 242 Cal.Rptr.3d 860.) "Senate Bill No. 1437 thus...

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