People v. Nash

• Decision Date: 03 August 2020
• Docket Number: F079509
• Citation: People v. Nash, 52 Cal.App.5th 1041, 267 Cal.Rptr.3d 148 (Cal. App. 2020)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Angelique Elandra NASH, Defendant and Appellant.

52 Cal.App.5th 1041

267 Cal.Rptr.3d 148

The PEOPLE, Plaintiff and Respondent,

v.Angelique Elandra NASH, Defendant and Appellant.

F079509

Court of Appeal, Fifth District, California.

Filed August 3, 2020

OPINION

MEEHAN, J.

INTRODUCTION

In 2010, appellantAngelique Elandra Nash participated in a residential burglary during which one of her codefendants struck the elderly homeowner.¹The victim later died as the result of blunt force trauma to the head.Appellant; her sister, Katila Nash; and her sister's boyfriend, David Moses, all of whom were under the age of 18 years at the time of the crime, were subsequently arrested and charged as adults in connection with the victim's murder.( Welf. & Inst. Code, § 707, former subd. (d)(1), (d)(2).)In her third trial, appellant was convicted of first degree felony murder with the special circumstance finding that the murder was committed while appellant was engaged in the commission of burglary.( Pen. Code, §§ 187, subd. (a),189,190.2, subds. (a)(17)(G) & (d).)^2,3Appellant was sentenced to 25 years to life in prison.(§ 190.5, subd. (b).)

In a prior opinion, this court reversed the jury's burglary special-circumstance finding on the ground it was unsupported by substantial evidence that appellant was a major participant in the underlying burglary, in accordance with the California Supreme Court's then-recent decision in People v. Banks(2015)61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330.Appellant's sentence remained 25 years to life in prison.(§ 190, subd. (a).)

On September 30, 2018, the Governor signed Senate BillNo. 1437 into law.Effective January 1, 2019, Senate BillNo. 1437"amend[ed] 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)(Senate BillNo. 1437 or Sen. BillNo. 1437).)The bill amended sections 188and189, and added section 1170.95, which provides a process for those convicted of felony murder or murder under a natural and probable consequences theory to petition for relief based on the change to the law.(Sen. BillNo. 1437, §§ 2–4.)

When Moses hit the victim inside her residence, appellant was outside acting as a lookout and, as previously stated, this court concluded she was not a major participant in the underlying burglary.Following the enactment of Senate BillNo. 1437, appellant, represented by counsel, filed a petition under section 1170.95, subdivision (a), seeking relief from her felony murder conviction on the ground that she was "not the actual killer, did not act with the intent to kill, [and] was not a major participant in the underlying felony who acted with reckless indifference to human life."(Stats. 2018, ch. 1015, § 1, subd. (f).)The prosecutor opposed the motion on the same grounds now advanced by respondent on appeal, as discussed in the sections that follow.

After hearing argument and taking the matter under submission, the trial court rejected the prosecutor's contentions that Senate BillNo. 1437 amendsProposition 115(the Crime Victims Justice Reform Act) and Proposition 9(the Victims' Bill of Rights Act of 2008: Marsy's Law (Marsy's Law)) in violation of the California Constitution, but the court agreed that at least as to retroactive application, Senate BillNo. 1437 is an unconstitutional amendment of Proposition 7(the Briggs Initiative).The trial court dismissed appellant's petition and she filed a timely notice of appeal challenging the judgment.(§ 1237.)

Appellant and the Attorney General, through an amicus brief, argue that Senate BillNo. 1437 is constitutional and urge reversal of the judgment.⁴Respondent, the Kern County District Attorney, argues that Senate BillNo. 1437 is an unconstitutional amendment of Propositions 7, 115 and 9, and that it impermissibly infringes on powers vested in the judicial and executive branches of government, in violation of the separation of powers doctrine.

These arguments were considered and rejected by the Court of Appeal for the Fourth District, Division One, in People v. Lamoureux and People v. Superior Court (Gooden).( People v. Lamoureux(2019)42 Cal.App.5th 241, 246, 255 Cal.Rptr.3d 253[Sen. BillNo. 1437 does not violate Props. 7, 115 or 9, or separation of powers doctrine]( Lamoureux );People v. Superior Court(Gooden)(2019)42 Cal.App.5th 270, 289, 255 Cal.Rptr.3d 239[Sen. BillNo. 1437 does not violate Props. 7 or 115]( Gooden ).)⁵Subsequently, the other Courts of Appeal considering these issues have agreed with the analyses in Lamoureux and Gooden.( People v. Solis(2020)46 Cal.App.5th 762, 784, 259 Cal.Rptr.3d 854( Solis );People v. Cruz(2020)46 Cal.App.5th 740, 747, 260 Cal.Rptr.3d 166( Cruz );accord, People v. Lopez(2020)51 Cal.App.5th 589, 594, 265 Cal.Rptr.3d 265;People v. Alaybue(2020)51 Cal.App.5th 207, 211, 264 Cal.Rptr.3d 876;People v. Johns(2020)50 Cal.App.5th 46, 54-55, 263 Cal.Rptr.3d 611;People v. Prado(2020)49 Cal.App.5th 480, 492, 263 Cal.Rptr.3d 79;People v. Smith(2020)49 Cal.App.5th 85, 91–92, review grantedJuly 22, 2020, No. S262835;People v. Bucio(2020)48 Cal.App.5th 300, 306, 261 Cal.Rptr.3d 692.)We find the aforementioned decisions well-reasoned and persuasive, and we join them.

On the grounds set forth below, we conclude the trial court erred in finding that Senate BillNo. 1437 unconstitutionally amends Proposition 7.We also reject respondent's claims that Senate BillNo. 1437 unconstitutionally amends Proposition 115andProposition 9 and that it violates the separation of powers doctrine.Accordingly, we reverse the judgment and remand this matter for further proceedings under section 1170.95.

DISCUSSION

I.Claim Senate BillNo. 1437 Amends Voter Initiatives in Violation of California Constitution

A.Constitutional Limitation on Amendment of Voter Initiatives

This appeal requires us to determine whether Senate BillNo. 1437, which effected changes to the Penal Code relating to murder, unconstitutionally amends Proposition 7,Proposition 115 or Proposition 9, all ballot initiatives passed by voters.When laws are enacted by voter initiative, subsequent legislative acts are limited by the California Constitution, which provides that "[t]he 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."( Cal. Const., art. II, § 10, subd. (c);accord, People v. Superior Court(Pearson)(2010)48 Cal.4th 564, 568, 107 Cal.Rptr.3d 265, 227 P.3d 858( Pearson );People v. Kelly(2010)47 Cal.4th 1008, 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186( Kelly ).)

" ‘[T]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to "protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent."[Citation.]’ "( Kelly, supra , 47 Cal.4th at p. 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186, quotingProposition 103 Enforcement Project v. Quackenbush(1998)64 Cal.App.4th 1473, 1484, 76 Cal.Rptr.2d 342( Proposition 103Enforcement Project ).)"[C]ourts have a duty to ‘ " ‘jealously guard’ " ’the people's initiative power, and hence to ‘ " ‘apply a liberal construction to this power wherever it is challenged in order that the right’ " ’ to resort to the initiative process ‘ " ‘be not improperly annulled’ " ’ by a legislative body."( Kelly, supra , at p. 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186, quotingDeVita v. County of Napa(1995)9 Cal.4th 763, 776, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)

An amendment in this context has been described "as ‘a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.’ "( Pearson, supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858;accord, People v. Cooper(2002)27 Cal.4th 38, 44, 115 Cal.Rptr.2d 219, 37 P.3d 403( Cooper ).)In contrast with the restrictions on amendment, the Legislature is not "precluded from enacting laws addressing the general subject matter of an initiative"( Kelly, supra , 47 Cal.4th at p. 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186 ), and it "remains free to address a ‘ "related but distinct area" ’[citations] or a matter that an initiative measure ‘does not specifically authorize or prohibit’ "( id. at pp. 1025–1026, 103 Cal.Rptr.3d 733, 222 P.3d 186;accord, Pearson, supra , at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ).

B.Standard of Review

We review questions of statutory and voter initiative interpretation de novo ( People v. Gonzales(2018)6 Cal.5th 44, 49, 237 Cal.Rptr.3d 193, 424 P.3d 280( Gonzales );John v. Superior Court(2016)63 Cal.4th 91, 95, 201 Cal.Rptr.3d 459, 369 P.3d 238 ), and the same principles that govern statutes enacted by the Legislature apply to voter initiatives ( Gonzales, supra , at p. 49, 237 Cal.Rptr.3d 193, 424 P.3d 280;Pearson, supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 )."We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole.If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language.If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure."( Pearson, supra , at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858;accord, Gonzales, supra , at pp. 49–50, 237...