People v. Marquez

• Decision Date: 20 October 2020
• Docket Number: G058719
• Citation: 56 Cal.App.5th 40,270 Cal.Rptr.3d 93
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mario MARQUEZ, Defendant and Appellant.

56 Cal.App.5th 40

270 Cal.Rptr.3d 93

The PEOPLE, Plaintiff and Respondent,

v.Mario MARQUEZ, Defendant and Appellant.

G058719

Court of Appeal, Fourth District, Division 3, California.

Filed October 20, 2020

Certified for Partial Publication.^*

Reed Webb, Temecula, under appointment by the Court of Appeal, for Defendant and Appellant.

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

OPINION

FYBEL, J.

INTRODUCTION

Mario Marquez appealed from a postjudgment order striking his petition for resentencing made pursuant to Penal Code section 1170.95 ( section 1170.95 ), which was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4). The trial court struck Marquez's petition on the ground that Senate Bill No. 1437 violates article II, section 10, subdivision (c) of the California Constitution by amending Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115). Respondent argues, in addition, that retroactive application of Senate Bill No. 1437 by means of the petitioning process of section 1170.95 conflicts with the Victims' Bill of Rights Act of 2008 (Marsy's Law) and violates the separation of powers doctrine.

We reverse with directions to consider the petition on the merits. We partially publish this opinion because the issues of whether Senate Bill No. 1437 conflicts with Marsy's Law and whether Senate Bill No. 1437 violates the separation of powers doctrine have not been addressed in a published opinion of this division. On those issues we conclude that Senate Bill No. 1437 neither conflicts with Marsy's Law nor violates the separation of powers doctrine. In the nonpublished part of the opinion we conclude Senate Bill No. 1437 does not unconstitutionally amend Proposition 7 or Proposition 115.

BACKGROUND

In 2007, a jury found Marquez guilty of first degree murder ( Pen. Code, §§ 187, subd. (a), 189, subd. (a) ), second degree robbery (id. , §§ 211, 212.5, subd. (c)), carjacking (id. , § 215, subd. (a)), willful evasion of a police officer with reckless disregard for the safety of persons or property ( Veh. Code, § 2800.2, subd. (a) ), and unlawful possession of a firearm by a felon ( Pen. Code, § 12021, subd. (a)(1) ). The jury found it to be true that the principal had been armed with a firearm during the commission of these crimes (id , § 12022, subd. (a)(1)), and found that Marquez had been convicted of a prior serious or violent felony (id. , §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had served a prior prison term (id. , § 667.5, subd. (b)), and had been convicted of a prior serious felony (id. , § 667, subd. (a)(1)).

The trial court sentenced Marquez to a term of 70 years 8 months to life in prison. This sentence consisted of a total determinate term of 18 years 8 months for carjacking, the firearm enhancement, the prior conviction enhancements, evading an officer, and possession of a firearm, followed by an indeterminate term of 50 years to life for murder, plus one year for the firearm enhancement. A panel of this court affirmed the judgment (modified to strike the one-year sentence enhancement under Penal Code 667.5, subdivision (b) ) in People v. Marquez. (Jan. 14, 2010, G041202), 2010 WL 146312 (nonpub. opn.). That opinion sets out the underlying facts of this case.¹

In 2018, the Legislature enacted Senate Bill No. 1437, which limited accomplice liability under the felony murder rule and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189. (See People v. Solis (2020) 46 Cal.App.5th 762, 768, 259 Cal.Rptr.3d 854 ( Solis ); People v. Cruz (2020) 46 Cal.App.5th 740, 755, 260 Cal.Rptr.3d 166 ( Cruz ).) Senate Bill No. 1437 also added section 1170.95 to create a procedure by which persons previously convicted of felony murder or murder under a natural and probable consequences theory may petition the superior court to have their murder convictions vacated and be resentenced if they could not now be convicted of murder under the amended versions of Penal Code sections 188 and 189. ( Solis, supra , at p. 775, 259 Cal.Rptr.3d 854 ; Cruz, supra , at p. 753, 260 Cal.Rptr.3d 166.)

In March 2019, Marquez filed a petition for resentencing pursuant to section 1170.95. He alleged that he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine and that he satisfied the other requirements for relief.

In November 2019, the trial court denied Marquez's petition. The court concluded that Senate Bill No. 1437 violated article II, section 10, subdivision (c) of the California Constitution by materially amending Proposition 7, which was passed by the electorate in 1978, and Proposition 115, which was passed by the electorate in 1990. The court did not consider the petition on its merits. Marquez timely appealed.

DISCUSSION

I.Standard of Review and Relevant Legal Principles

The issue whether Senate Bill No. 1437 is unconstitutional is reviewed under the de novo standard. ( People v. Lippert (2020) 53 Cal.App.5th 304, 311, 267 Cal.Rptr.3d 535 ( Lippert ); Solis, supra , 46 Cal.App.5th at p. 771, 259 Cal.Rptr.3d 854.)

Under article II, section 10, subdivision (c) of the California Constitution, the Legislature may amend or repeal an initiative statute only with the electorate's approval unless the initiative statute provides otherwise. "The California Constitution protects the power of voters to act through the initiative process by limiting the Legislature's power to amend voter-approved statutes. [Citations.] The Legislature may amend or repeal an initiative statute only with approval from the electorate, which approval may come in the form of a direction contained in the initiative itself." ( People v. Johns (2020) 50 Cal.App.5th 46, 60, 263 Cal.Rptr.3d 611 ( Johns ).)

"A statute amends an initiative when it is ‘designed to change an existing initiative statute by adding or taking from it some particular provision.’ " ( Johns, supra , 50 Cal.App.5th at p. 61, 263 Cal.Rptr.3d 611, quoting People v. Cooper (2002) 27 Cal.4th 38, 44, 115 Cal.Rptr.2d 219, 37 P.3d 403.) In determining if the Legislature has amended a voter initiative, the relevant question is whether the statute "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.) The voters get only what they enacted, " ‘not more and not less.’ " ( Ibid. ) The Legislature is free to address matters that are related to, but distinct from, the subjects covered by the initiative or which the initiative does not specifically permit or prohibit. ( Ibid. )

When deciding whether a legislative enactment unconstitutionally conflicts with a voter initiative, we must, on the one hand, apply a strong presumption of the constitutionality of the Legislature's acts ( Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253, 1256, 48 Cal.Rptr.2d 12, 906 P.2d 1112 ) and, on the other hand, fulfill our obligation to guard the People's right to enact laws through the initiative process ( People v. Kelly (2010) 47 Cal.4th 1008, 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186 ).

II. Section 1170.95 Does Not Conflict with Marsy's Law.

Respondent argues Senate Bill No. 1437 violates the California Constitution as amended by Marsy's Law because the postjudgment procedure under section 1170.95 conflicts with a crime victim's right to prompt and final conclusion of criminal cases by "reopening the convictions which [Marsy's Law] sought to make final." Every published opinion that has addressed that issue has concluded that retroactive application of Senate Bill No. 1437 by means of the petitioning procedures of section 1170.95 does not conflict with Marsy's Law. ( People v. Lombardo (2020) 54 Cal.App.5th 553, 562-565, 269 Cal.Rptr.3d 62 ( Lombardo ); Lippert, supra , 53 Cal.App.5th at p. 313, 267 Cal.Rptr.3d 535 ; People v. Nash (2020) 52 Cal.App.5th 1041, 1070-1072, 267 Cal.Rptr.3d 148 ( Nash ); Johns, supra , 50 Cal.App.5th at pp. 68-70, 263 Cal.Rptr.3d 611 ; People v. Bucio (2020) 48 Cal.App.5th 300, 312-313, 261 Cal.Rptr.3d 692 ( Bucio ); People v. Lamoureux (2019) 42 Cal.App.5th 241, 264-266, 255 Cal.Rptr.3d 253 ( Lamoureux ).) We agree with these opinions and conclude section 1170.95 does not violate Marsy's Law.

Marsy's Law, which was passed by the California electorate in 2008 as Proposition 9, amended the California Constitution and added provisions to the Penal Code in order to strengthen and increase the number of crime victims' rights. ( Johns, supra , 50 Cal.App.5th at p. 68, 263 Cal.Rptr.3d 611.) Relevant here are constitutional amendments regarding prompt resolution and finality of criminal cases. Marsy's Law amended the California Constitution to grant crime victims the right "[t]o a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings" ( Cal. Const., art. I, § 28, subd. (b)(9)), and "[t]o have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgment release decision is made" (id. , subd. (b)(16)).² (See Johns, supra , 50 Cal.App.5th at p. 68, 263 Cal.Rptr.3d 611.)

Marsy's Law cannot be amended except by ballot measure or by a supermajority vote in both houses of the Legislature. ( Nash, supra , 52 Cal.App.5th at p. 1070, 267 Cal.Rptr.3d 148 ; Johns, supra , 50 Cal.App.5th at p. 68, 263 Cal.Rptr.3d 611.) Senate Bill No. 1437 was approved by two-thirds of the California State Senate but only by a simple majority of the Assembly, and was never submitted to the voters for approval. ( Lombardo, supra , 54 Cal.App.5th at p. 559, fn. 2, 269 Cal.Rptr.3d 62.)

Although Marsy's Law must be interpreted broadly, we decline to read it so broadly as to restrict or...