People v. Superior Court of Butte Cnty.

• Decision Date: 07 July 2020
• Docket Number: C089541,C090226
• Citation: 51 Cal.App.5th 896,265 Cal.Rptr.3d 507
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF BUTTE COUNTY, Respondent; Donald R. Ferraro, Real Party in Interest. The People, Petitioner, v. The Superior Court of Butte County, Respondent; Roger Hunter, Real Party in Interest.

51 Cal.App.5th 896

265 Cal.Rptr.3d 507

The PEOPLE, Petitioner,

v.The SUPERIOR COURT OF BUTTE COUNTY, Respondent;

Donald R. Ferraro, Real Party in Interest.

The People, Petitioner,

v.The Superior Court of Butte County, Respondent;

Roger Hunter, Real Party in Interest.

C090226

C089541

Court of Appeal, Third District, California.

Filed July 7, 2020

Michael L. Ramsey, District Attorney, and Stacy J. Edwards, Deputy District Attorney, for Petitioners.

No appearance for Respondents.

Jeffrey S. Kross, Oakland, for Real Party in Interest Donald R. Ferraro.

Law Offices of Stephana L.M. Femino and Stephana L.M. Femino, Chico, for Real Party in Interest Roger Hunter.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus Curiae, at the request of the Court of Appeal, on behalf of Real Parties in Interest.

RENNER, J.

I. INTRODUCTION

In 1990, real parties in interest Donald R. Ferraro and Roger Hunter pled guilty to second degree murder based on the same incident. In 2019, they each filed a petition to obtain resentencing under newly enacted Penal Code section 1170.95.¹ Section 1170.95 was enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015), which took effect January 1, 2019. The legislation limits the circumstances under which a defendant can be found guilty of murder under the felony-murder rule or the natural and probable consequences doctrine. The legislation applies retroactively through section 1170.95, which allows qualifying petitioners to have their murder convictions vacated and be resentenced.

The District Attorney for Butte County filed motions to strike the petitions for resentencing, arguing in part that Senate Bill No. 1437 (Senate Bill 1437) is an unconstitutional amendment of two prior initiative measures—Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)). The respondent superior court denied the motions. The District Attorney filed separate writ petitions in this court on behalf of the People challenging the superior court's rulings.

We join the other appellate courts who have addressed the issue in concluding that Senate Bill 1437 is not an invalid amendment of either Proposition 7 or 115 because the legislation did not add to or take away from any provision in either initiative. (See, e.g., People v. Bucio (2020) 48 Cal.App.5th 300, 311-312, 261 Cal.Rptr.3d 692 ; People v. Cruz (2020) 46 Cal.App.5th 740, 747, 260 Cal.Rptr.3d 166 ( Cruz ); People v. Solis (2020) 46 Cal.App.5th 762, 769, 259 Cal.Rptr.3d 854 ; People v. Lamoureux (2019) 42 Cal.App.5th 241, 251, 255 Cal.Rptr.3d 253 ; People v. Superior Court (Gooden ) (2019) 42 Cal.App.5th 270, 275, 255 Cal.Rptr.3d 239 ( Gooden ).) Therefore, we deny the writ petitions.

II. BACKGROUND

A. Procedural Background

After Senate Bill 1437 became effective, Ferraro and Hunter each filed petitions to obtain resentencing under section 1170.95. Hunter checked boxes indicating: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he pled guilty in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine; and (3) he could not now be convicted of first or second degree murder because of the recent changes to sections 188 and 189. Ferraro submitted a handwritten declaration that asserted more specifically: (1) a complaint was filed against him that allowed the prosecution to proceed against him under a theory of felony murder; (2) he pled guilty to second degree murder in lieu of going to trial because he believed he could have been convicted of second degree murder at trial pursuant to the felony murder rule; and (3) he could not now be convicted of second degree murder because of the recent changes to sections 188 and 189.

As to Hunter, the respondent court found a prima facie showing of entitlement to relief had been made, appointed counsel, and issued an order to show cause. (See § 1170.95, subd. (c).) As to Ferraro, the court appointed counsel and requested briefing from the District Attorney to assist in its determination of whether a prima facie showing had been made. The District Attorney responded by filing motions to strike both petitions. As relevant here, the District Attorney argued Senate Bill 1437 unconstitutionally amended Propositions 7 and 115.² The court denied the motions.

In this court, the District Attorney filed requests for a stay of the superior court proceedings and petitions for a writ of mandate and/or prohibition directing the respondent superior court to vacate its orders and enter new ones granting his motions.

We denied the stay requests, but issued orders to show cause why the relief prayed for in the writ petitions should not be granted. We also invited the Attorney General to file an amicus brief, and he did so, arguing Senate Bill 1437 does not amend either Proposition 7 or Proposition 115. In their returns, Ferraro and Hunter also argued Senate Bill 1437 is constitutional.

On this court's own motion, the two cases were consolidated for purposes of oral argument and decision only.

B. Legal Background Prior to 2019

We begin by reviewing the relevant law prior to the passage of Senate Bill 1437, with an emphasis on the contributions of Propositions 7 and 115.

Section 187, subdivision (a) defines murder as "the unlawful killing of a human being ... with malice aforethought." Malice may be express or implied. (§ 188.) It is express "when there is manifested a deliberate intention" to unlawfully take "the life of a fellow creature." (Former § 188, now § 188, subd. (a)(1).) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Former § 188, now § 188, subd. (a)(2).) " ‘The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.’ " ( People v. Chun (2009) 45 Cal.4th 1172, 1181, 91 Cal.Rptr.3d 106, 203 P.3d 425.) Our Supreme Court has "interpreted implied malice as having ‘both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and ... acts with a conscious disregard for life." ’ " ( Ibid . )

Prior to 2019, section 189 provided, in pertinent part: "All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under [s]ection 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree." (Stats 2010, ch. 178, § 51.) "[S]ection 189 serves both a degree-fixing function and the function of establishing the offense of first degree felony murder. [Citation.] It defines second degree murder as well as first degree murder." ( People v. Harris (2008) 43 Cal.4th 1269, 1295, 78 Cal.Rptr.3d 295, 185 P.3d 727, emphasis omitted.) The second degree felony-murder rule is based in statute as well—"specifically section 188's definition of implied malice." ( People v. Chun, supra , 45 Cal.4th at p. 1178, 91 Cal.Rptr.3d 106, 203 P.3d 425.)

Under the felony-murder rule, "when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the felony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree. [Citations.] Felony-murder liability does not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony." ( People v. Gonzalez (2012) 54 Cal.4th 643, 654, 142 Cal.Rptr.3d 893, 278 P.3d 1242.) Put differently, " ‘[t]he felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to life.’ " ( People v. Chun, supra , 45 Cal.4th at p. 1184, 91 Cal.Rptr.3d 106, 203 P.3d 425.)

Section 189 has been amended multiple times, including, as relevant to these proceedings, by Proposition 115 and Senate Bill 1437. Proposition 115, an initiative measure adopted in 1990, was "a comprehensive criminal justice reform package," ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 347, 276 Cal.Rptr. 326, 801 P.2d 1077 ) entitled the "Crime Victims Justice Reform Act" by its drafters, that adopted "a variety of changes and additions to our state Constitution and statutes" ( id. at p. 340, 276 Cal.Rptr. 326, 801 P.2d 1077 ). One such change was amending section 189 to add kidnapping, train wrecking, and certain sex offenses to the list of felonies that could support first degree felony-murder liability. (Prop. 115, § 9.)

A non-killer's "liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule." ( People v. Chiu (2014) 59 Cal.4th 155, 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.) "The natural...