Filed 8/24/20 P. v. Kness CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                  2d Crim. No. B299645
                                                          (Super. Ct. No. F000278122)
     Plaintiff and Respondent,                             (San Luis Obispo County)

v.

ALLEN REED KNESS,

     Defendant and Appellant.


                   Allen Reed Kness appeals an order denying his
petition for resentencing pursuant to Penal Code1 section
1170.95. Kness contends the trial court erred when it found
Senate Bill No. 1437 (SB 1437) unconstitutional. We agree and
reverse.
                    PROCEDURAL HISTORY
             Kness aided and abetted in a murder. The jury found
him guilty of second degree murder (§§ 187, subd. (a), 189, subd.


         1   Further unspecified statutory references are to the Penal
Code.
(b)), but found not true the allegation that he personally used a
deadly and dangerous weapon in the commission of the crime (§
12022, subd. (b)). The trial court sentenced him to 15 years to
life. We affirmed the judgment in an unpublished decision.
(People v. Kness (May 7, 2001, B139989) [nonpub. opn.].)
              Following the enactment of SB 1437 in 2018, Kness
filed a petition for resentencing pursuant to section 1170.95. He
declared he was convicted of second degree murder “pursuant to
the felony murder or the natural and probable consequences rule”
and “could not now be convicted of murder because of changes
made to Penal Code § 188.” The court denied the petition, finding
SB 1437 unconstitutional.
                            DISCUSSION
              The District Attorney contends the trial court
properly determined SB 1437 unconstitutional because it (1)
unlawfully amends Propositions 7 and 115, (2) violates the
separation of powers, and (3) violates Marsy’s Law. Since the
trial court’s ruling, several courts, including our own in People v.
Bucio (2020) 48 Cal.App.5th 300 (Bucio), rejected these same
arguments and upheld the constitutionality of SB 1437. (See also
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270
(Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241
(Lamoureux); People v. Solis (2020) 46 Cal.App.5th 762; People v.
Cruz (2020) 46 Cal.App.5th 740; People v. Johns (2020) 50
Cal.App.5th 46; People v. Prado (2020) 49 Cal.App.5th 480;
People v. Smith (2020) 49 Cal.App.5th 85.) Consistent with our
recent opinion in Bucio, we conclude SB 1437 is constitutional.
              SB 1437 “amended section 188, which defines malice.
Now, to be convicted of murder, a principal must act with malice
aforethought . . . . [SB 1437] also amended section 189 to restrict




                                 2
the application of the felony-murder rule and the natural and
probable consequences doctrine. Now, to be convicted of felony
murder, the participant in a specified felony must be: (1) the
actual killer, (2) one who acted with the intent to aid, abet,
counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree, or (3) a
major participant in the underlying felony who acted with
reckless indifference to human life.” (Bucio, supra, 48
Cal.App.5th at p. 307.) SB 1437 also “added section 1170.95,
which permits those convicted of felony murder or murder under
the natural and probable consequences doctrine to file a petition
with the sentencing court to vacate the murder conviction and
resentence on any remaining counts.” (Bucio, at p. 307.)
                            Proposition 7
              SB 1437 did not amend Proposition 7. “Proposition 7
deals with the penalties for murder, mandating increased
minimum terms of incarceration for murders. In contrast, [SB
1437] deals with the related but ‘distinct’ subject matter of the
elements of murder. [Citations.] In particular, it is designed to
reserve the harshest penalties for persons with the greatest
culpability. . . . Moreover, [SB 1437] ‘did not prohibit what
Proposition 7 authorizes by, for example, prohibiting a
punishment of 25 years to life for first degree murder or 15 years
to life for second degree murder. Nor did it authorize what
Proposition 7 prohibits by, for instance, permitting a punishment
of less than 25 years for first degree murder or less than 15 years
for second degree murder.” (Bucio, supra, 48 Cal.App.5th at p.
309.)
              Furthermore, “Proposition 7’s lack of specific
reference to the elements of murder shows the voters did not




                                 3
intend to ‘freeze’ the definition of murder as it existed when
Proposition 7 was enacted. [Citation.] Proposition 7 did not
identify Penal Code provisions defining the offense of murder;
instead, it pertained only to the punishment for murder.
[Citation.] If the drafters had intended to preclude future
revisions to the elements of murder, Proposition 7 could have
done so by referring to section 187, which defines murder.”
(Bucio, supra, 48 Cal.App.5th at p. 311.)
                           Proposition 115
             SB 1437 did not amend Proposition 115, which added
select crimes to the list of predicate offense for first degree felony
murder. SB 1437 “did not address ‘a matter that [Proposition
115] specifically authorizes or prohibits.’ [Citation.] In
particular, [SB 1437] did not augment or restrict the list of
predicate felonies on which felony murder may be based. Rather,
it amended the mental state necessary for murder, which is ‘a
distinct topic not addressed by Proposition 115’s text or ballot
materials.’ [Citation.]” (Bucio, supra, 48 Cal.App.5th at p. 312.)
                       Separation of Powers
             SB 1437 does not violate the doctrine of separation of
powers. “[S]ection 1170.95 does not infringe upon the judiciary’s
power to resolve specific controversies.” (Bucio, supra, 48
Cal.App.5th at p. 314.) The District Attorney argues the
Legislature may not “re-adjudicate[]” a judgment of conviction
once the case has become final. “But where legislation reopening
a final judgment of conviction is no ‘risk to individual liberty
interests’ and provides ‘potentially ameliorative benefits to the
only individuals whose individual liberty interests are at stake in
a criminal prosecution,’ such legislation is permissible.
[Citations.]” (Ibid.)




                                  4
              Neither does section 1170.95 infringe upon the
governor’s commutation power. “Although section 1170.95 ‘can
produce outcomes resembling the consequences of an executive
commutation . . . [¶] . . . the objective of the Legislature in
approving section 1170.95 . . . was not to extend “an act of grace”
to petitioners.’ [Citation.] Rather, the purpose of [SB 1437] was,
first, to ensure that California fairly addresses the culpability of
the individual, and second, to assist in the reduction of prison
overcrowding. [Citations.]” (Bucio, supra, 48 Cal.App.5th at pp.
313-314.) “Moreover, granting a section 1170.95 petition is ‘not
merely an act of grace akin to an exercise of executive clemency.’
[Citation.] The successful petitioner will have their ‘murder
conviction vacated and . . . be resentenced on any remaining
counts.’ [Citation.]” (Id. at p. 314.)
                              Marsy’s Law
              Section 1170.95 does not violate Marsy’s Law.
Marsy’s Law establishes the victim’s right to finality and the
right to “Truth in Sentencing,” which provides that the sentence
served will comply with the sentencing order, and “shall not be
substantially diminished by early release policies.” (Cal. Const.,
art. I, § 28, subd. (f)(5).) “But Marsy’s Law ‘did not foreclose
[postjudgment] proceedings altogether. On the contrary, it
expressly contemplated the availability of such postjudgment
proceedings, including in [article I,] section 28, subdivision (b)(7)
of the [California] Constitution, which affords victims a right to
reasonable notice of “parole [and] other [postconviction] release
proceedings,” and in subdivision (b)(8), which grants victims a
right to be heard at ‘post-conviction release decision[s] . . . .”’
[Citation.]” (Bucio, supra, 48 Cal.App.5th at p. 313.)




                                  5
             Neither does section 1170.95 violate a victim’s right
to have the safety of the victims, the victim’s family, and the
general public considered before any postjudgment release
decision is made. (Cal. Const., art. I, § 28, subd. (b).) “If a court
rules that a petitioner is entitled to relief under section 1170.95,
it must then resentence the petitioner on any remaining counts.
[Citation.] Upon resentencing, the court may weigh the same
sentencing factors it considers when initially sentencing a
defendant, including whether the defendant presents ‘“a serious
danger to society” and “[a]ny other factors [that] reasonably
relate to the defendant or the circumstances under which the
crime was committed.” [Citation.]’ [Citation.] The trial court’s
ability to consider these factors ‘ensures the safety of the victim,
the victim’s family, and the general public are “considered,” as
required by Marsy’s Law.’ [Citation.]” (Bucio, supra, 48
Cal.App.5th at p. 313.)
                           DISPOSITION
             We reverse the order denying the petition for
resentencing, and remand to the trial court with directions to
conduct further proceedings consistent with section 1170.95.
             NOT TO BE PUBLISHED.

                                      TANGEMAN, J.
We concur:


             GILBERT, P. J.


             YEGAN, J.




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                    Dodie A. Harman, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            Emry J. Allen, under appointment by the Court of
Appeal, for Defendant and Appellant.

           Dan Dow, District Attorney, Christopher Peuvrelle
and Melissa Chabra, Deputy District Attorneys, for Plaintiff and
Respondent.
