People v. Lopez

• Decision Date: 29 June 2020
• Docket Number: B300787
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Alberto LOPEZ, Defendant and Appellant.

51 Cal.App.5th 589

265 Cal.Rptr.3d 265

The PEOPLE, Plaintiff and Respondent,

v.Jose Alberto LOPEZ, Defendant and Appellant.

B300787

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

Filed June 29, 2020

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez, Rama R. Maline and Nelson Ryan Richards, Deputy Attorneys General, for Plaintiff and Respondent.

Mark Zahner, Chief Executive Officer, California District Attorneys Association, Michael A. Hestrin, District Attorney (Riverside), Alan D. Tate, Lead Deputy District Attorney, Jesse Male, Deputy District Attorney, Jason Anderson, District Attorney (San Bernardino), and James R. Secord, Deputy District Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.

LUI, P. J.

Jose Alberto Lopez appeals the postjudgment order denying his petition for resentencing under Penal Code ¹ section 1170.95. The superior court denied the petition on the basis of its conclusion that Senate Bill No. 1437² along with section 1170.95 as enacted by the legislation is unconstitutional because it impermissibly amended Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7 (Proposition 7)) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115 (Proposition 115)). Lopez contends, and the Attorney General agrees, that the superior court erred in finding Senate Bill No. 1437 unconstitutional. Amicus Curiae defends the superior court's ruling, contending that Senate Bill No. 1437 and section 1170.95 unconstitutionally amended Propositions 7 and 115, and section 1170.95 violates the separation of powers and contravenes the constitutional rights of victims under the Victims’ Bill of Rights (Proposition 9, commonly known as "Marsy's Law"; Cal. Const., art. I, § 28 ). Amicus Curiae further asserts that People v. Lamoureux (2019) 42 Cal.App.5th 241, 255 Cal.Rptr.3d 253 ( Lamoureux ) and People v. Superior Court (Gooden ) (2019) 42 Cal.App.5th 270, 255 Cal.Rptr.3d 239 ( Gooden ) were wrongly decided.

We reject Amicus Curiae's arguments and agree with Lopez and the Attorney General that Senate Bill No. 1437 and section 1170.95 as enacted by Senate Bill No. 1437 did not unconstitutionally amend Proposition 7 or Proposition 115.³ We therefore reverse the postjudgment order and remand the matter for further proceedings in accordance with section 1170.95.

FACTS AND PROCEDURAL BACKGROUND

Lopez was charged in 1996 with one count of murder committed for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and three counts of attempted murder (§§ 664/187). On December 5, 1996, he entered an open plea of no contest to second degree murder.

The court found a factual basis for the plea based on Lopez's testimony about the events underlying the plea. Lopez admitted to being a member of the Mara Salvatrucha street gang in 1996. Around 11:30 p.m. on April 7, 1996, Lopez was in front of an apartment building on Westmoreland Avenue in Los Angeles with another Mara Salvatrucha gang member when he saw two fellow gang members, "Youngster" and "Player," pull up in a car and speak to some individuals on the street. As Youngster and Player began to drive away, someone threw a bottle into the street, prompting them to exit the car and chase the bottle-thrower. Lopez joined the chase, following the others into the apartment building where a fistfight broke out on the staircase. After taking part in the fight, Lopez left the building and heard shots fired. He did not have a weapon, he did not shoot anyone, and he did not know who had fired the shots.

At the plea hearing the court stated, "It is undisputed that you were not the shooter. But as an aider and abettor you will be pleading to that count of second degree murder." The court sentenced Lopez to the mandatory term of 15 years to life. But over the prosecutor's objection, the court suspended sentence and placed appellant on probation for 10 years. As part of the plea agreement, the court also dismissed the three attempted murder counts.

In making its "very unusual grant of probation" the court struck most of the aggravating factors and noted Lopez's "extreme youth" (he was 18 at the time of the offense) and his "extremely minimal record." The court emphasized Lopez's "minor role in the confrontation," stating, "He was not the shooter. He was not the initiator. He was not involved in the robbery if there was one. He was present when an altercation arose, apparently spontaneously ... among others who were present." The court also noted that Lopez had confessed and cooperated with police by providing names and identifying suspects.

The court warned Lopez that if he violated probation, "[he would] be getting 15 to life, period," and it "could cost [him] 15 years to life just hanging around" gang members. Lopez agreed to the terms of his probation, but soon after sentencing he violated probation, and on March 27, 1997, he was sent to prison for 15 years to life.

On January 2, 2019, Lopez filed a petition for resentencing pursuant to section 1170.95. The People opposed the petition on the grounds that Senate Bill No. 1437 is unconstitutional and Lopez does not qualify for resentencing under the new law in any event.

The superior court summarily denied the petition on the sole ground that Senate Bill No 1437 is unconstitutional because it impermissibly amended Propositions 7 and 115.⁴

DISCUSSION

I. Standard of Review

The postjudgment order denying Lopez's resentencing petition is appealable. (§ 1237, subd. (b).) The superior court's ruling on the constitutionality of Senate Bill No. 1437 presents a pure question of law, which we review de novo. ( People v. Sanchez (2017) 18 Cal.App.5th 727, 734, 227 Cal.Rptr.3d 139.)

II. Senate Bill No. 1437 Did Not Unconstitutionally Amend an Initiative Statute

A. Legal principles

"We begin with the fundamental proposition that in resolving a legal claim, a court should speak as narrowly as possible and resort to invalidation of a statute only if doing so is necessary." ( People v. Kelly (2010) 47 Cal.4th 1008, 1047, 103 Cal.Rptr.3d 733, 222 P.3d 186 ( Kelly ); Dittus v. Cranston (1959) 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671 ["Courts should exercise judicial restraint in passing upon the acts of coordinate branches of government"].) Indeed, there is a strong presumption favoring the constitutionality of the Legislature's acts ( Amwest Sur. Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253, 48 Cal.Rptr.2d 12, 906 P.2d 1112 ), and "courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity." ( People v. Falsetta (1999) 21 Cal.4th 903, 912–913, 89 Cal.Rptr.2d 847, 986 P.2d 182 ; Dittus v. Cranston , at p. 286, 1 Cal.Rptr. 327, 347 P.2d 671 ["the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional"].)

While the Legislature may freely amend or repeal a statute enacted by the Legislature or by referendum, the California Constitution prohibits the Legislature from amending or repealing an initiative statute, unless otherwise specified by the initiative statute itself. ( Johnston v. Claremont (1958) 49 Cal.2d 826, 835, 323 P.2d 71 ["The amendment of a legislative act is itself a legislative act. The power to legislate includes by necessary implication the power to amend existing legislation"]; Cal. Const., art. II, § 10, subd. (c) ["The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval"]; People v. Prado (2020) 49 Cal.App.5th 480, 484–485, 263 Cal.Rptr.3d 79 ( Prado ).) Legislation amends an initiative in violation of the constitutional prohibition when it purports to " ‘change an existing initiative statute by adding or taking from it some particular provision.’ ( People v. Cooper (2002) 27 Cal.4th 38, 44 [115 Cal.Rptr.2d 219, 37 P.3d 403].)" ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ( Pearson ); People v. Solis (2020) 46 Cal.App.5th 762, 771, 259 Cal.Rptr.3d 854 ( Solis ).) "If the Legislature amends or repeals an initiative statute without the approval of the electorate, or otherwise violates the constitutional limitation, the legislative act ‘is in contravention of the Constitution and hence void.’ " ( Prado , at p. 486, 263 Cal.Rptr.3d 79 ; see Kelly , supra , 47 Cal.4th at p. 1012, 103 Cal.Rptr.3d 733, 222 P.3d 186.)

This is not to say that "any legislation that concerns the same subject matter as an initiative, or even augments an initiative's provisions, is necessarily an amendment for these purposes. ‘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." ’ " ( Pearson , supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858, quoting Kelly , supra , 47 Cal.4th at pp. 1025–1026, 103 Cal.Rptr.3d 733, 222 P.3d 186.) Thus, in deciding whether a particular legislative act amends an initiative statute, courts "need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( Pearson , at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ; Gooden , supra , 42 Cal.App.5th at pp. 279–280, 255 Cal.Rptr.3d 239.) The resolution of this question requires a determination of what the electorate contemplated when it passed the initiative, which in turn is a matter of statutory interpretation. ( Pearson , at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ; Hodges v. Superior Court (1999) ...