Filed 8/24/20 P. v. Velten 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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B298964
                                                        (Super. Ct. No. F000464362002)
      Plaintiff and Respondent,                            (San Luis Obispo County)

 v.

 JENNIFER VELTEN,

      Defendant and Appellant.




       Jennifer Velten appeals from a postjudgment order denying
her petition for resentencing under Penal Code1 section 1170.95.
Appellant contends the court erred in finding that Senate Bill No.
(SB) 1437, pursuant to which section 1170.95 was enacted, is
unconstitutional. We agree and accordingly reverse.
           FACTUAL AND PROCEDURAL HISTORY
       In 2012, appellant was charged with murder (§ 187, subd.
(a)), burglary (§ 459), and robbery (§ 211). After a preliminary


         1   All undesignated statutory references are to the Penal
Code.
hearing, appellant pleaded guilty to second degree murder and
was sentenced to 15 years to life in state prison.
       Following the enactment of SB 1437, appellant filed a
petition for resentencing pursuant to section 1170.95. The
prosecution moved to dismiss the petition on the ground that SB
1437 is unconstitutional. In its motion, the prosecution
contended that SB 1437 unconstitutionally amended Propositions
7 and 115. The prosecution also argued that SB 1437 conflicts
with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law). In its
reply to appellant’s opposition, the prosecution further asserted
that SB 1437 violates the separation of powers doctrine by
undermining the finality of court judgments.
       In its ruling, the court stated that the evidence at
appellant’s preliminary hearing “showed probable cause to
believe that [appellant] and three codefendants participated in
the burglary and robbery of the victim, in a residential motel,
resulting in a co-defendant stabbing the victim to death. It is
clear that for purposes of the preliminary hearing that the People
relied on a felony murder theory.” The court nevertheless denied
the petition, concluding that SB 1437 “violate[s] the California
Constitution by violating the separation of powers doctrine, the
constitutional requirement for finality of judgments, and the due
process protections accorded both the parties, and by
unconstitutionally amending Propositions 115 and 7.
Accordingly, [appellant] cannot, as a matter of law, secure the
relief . . . section 1170.95 purports to offer.”
                             DISCUSSION
       Appellant contends the trial court erred in denying her
petition for resentencing under section 1170.95 based on the
finding that SB 1437 is unconstitutional. We agree.
       SB 1437, which went into effect on January 1, 2019,
amended the definition of murder in sections 188 and 189 to



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narrow the scope of the felony murder rule and the natural and
probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–3.)
The measure also added section 1170.95 to establish a procedure
whereby persons previously convicted of murder, who could not
be convicted under the new definitions, could petition to have
their convictions vacated. “If the petitioner is found eligible for
relief, the murder conviction must be vacated and the petitioner
must be resentenced ‘on any remaining counts in the same
manner as if the petitioner had not been previously . . .
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (People v.
Bucio (2020) 48 Cal.App.5th 300, 307 (Bucio).)
       After appellant filed her opening brief, our colleagues in
Division One of the Fourth Appellate District issued two opinions
upholding the constitutionality of SB 1437. (People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, review denied
February 19, 2020, S259700 (Gooden) [SB 1437 did not amend
Propositions 7 and 115]; People v. Lamoureux (2019) 42
Cal.App.5th 241, review denied February 19, 2020, S259835
(Lamoureux) [SB 1437 did not unconstitutionally amend
Propositions 7 and 115 and did not violate the separations of
powers doctrine or Marsy’s Law].) After briefing was completed,
we issued an opinion following Gooden and Lamoureux in
rejecting all four of the constitutional challenges at issue in this
appeal. (Bucio, supra, 48 Cal.App.5th at p. 306.) Since then,
numerous other courts have issued opinions rejecting identical
constitutional challenges to SB 1437. (See, e.g., People v.
Superior Court (Ferraro) (2020) 51 Cal.App.5th 896; People v.
Alaybue (2020) 51 Cal.App.5th 207; People. v. Lopez (2020) 51
Cal.App.5th 589; People v. Johns (2020) 50 Cal.App.5th 46;
People v. Prado (2020) 49 Cal.App.5th 480 ; People v. Smith




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(2020) 49 Cal.App.5th 85; People v. Solis (2020) 46 Cal.App.5th
762; People v. Cruz (2020) 46 Cal.App.5th 740.)
       Although the People address Gooden and Lamoureux in
their respondent’s brief, they did not submit any supplemental
briefs addressing Bucio or the numerous other cases uniformly
holding that SB 1437 is constitutional.2 Because we have already
rejected all four of the grounds upon which the trial court in this
case found SB 1437 to be unconstitutional (Bucio, supra, 48
Cal.App.5th at p. 306), and the People have declined to address
that decision or the many other recent published decisions that
have all reached the same conclusion, we deem it sufficient for
present purposes to once again hold—pending a contrary decision
by our Supreme Court—that SB 1437 is constitutional.
                           DISPOSITION
       The order dismissing appellant’s section 1170.95 petition is
reversed, and the matter is remanded for the trial court to
consider the merits of the petition.
       NOT TO BE PUBLISHED.



                                     PERREN, J.

We concur:



      GILBERT, P. J.                 YEGAN, J.



      2 We grant the People’s unopposed request for judicial
notice of documents regarding the legislative histories of
Propositions 7 and 115 and SB 1437. (Evid. Code, §§ 452, subs.
(c) & (d), 459.)



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                  Timothy S. Covello, Judge
           Superior Court County of San Luis Obispo
               ______________________________

      Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Dan Dow, District Attorney, Melissa Chabra, Deputy
District Attorney, for Plaintiff and Respondent.




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