Filed 8/25/20 P. v. Carrasco CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G057911

         v.                                                            (Super. Ct. No. 09CF0090)

LETICIA CARRASCO,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Reversed and remanded.
                   Janice R. Mazur, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney
General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus
Curiae on behalf of Defendant and Appellant.
                   Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District
Attorney, for Plaintiff and Respondent.
              Leticia Carrasco appeals from a postjudgment order after the trial court
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denied her petition pursuant to Penal Code section 1170.95, which the Legislature
enacted in Senate Bill No. 1437 (S.B. 1437). Carrasco argues the trial court erred by
concluding S.B. 1437 was unconstitutional because it impermissibly amended two voter
initiatives. We agree and reverse the order.
                                          FACTS
              In 2013, a jury convicted Carrasco of first degree murder (§ 187, subd. (a)),
and second degree robbery (§§ 211, 212.5). The trial court sentenced Carrasco to
25 years to life. We affirmed the judgment but modified it to stay the sentence for the
robbery conviction pursuant to section 654. (People v. Carrasco (Sept. 30, 2014,
G048592) [nonpub. opn.].)
              In 2019, Carrasco filed a section 1170.95 petition to vacate her murder
conviction and be resentenced. The Orange County District Attorney filed an opposition
and Carrasco filed a reply brief. The trial court denied the petition, concluding S.B. 1437
(Stats. 2018, ch. 1015, §§ 2-4), was unconstitutional because it impermissibly amended
Propositions 7 and 115.
                                      DISCUSSION
              “Legislation unconstitutionally amends an initiative statute if it changes
that statute ‘“‘by adding or taking from it some particular provision.’”’ [Citations.]
Legislation may address the same subject matter as an initiative, and may even augment
the provisions of an initiative, without amending it. The key to our analysis is
determining ‘“whether [the legislation] prohibits what the initiative authorizes, or
authorizes what the initiative prohibits.”’ [Citation.]” (People v. Solis (2020)



1
              All further statutory references are to the Penal Code, unless otherwise
indicated.


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46 Cal.App.5th 762, 769 (Solis).) Although our review is de novo, we presume the
Legislature acted within its authority. (Id. at p. 771.)
              An actual killer may be convicted of murder. (People v. Cruz (2020)
46 Cal.App.5th 740, 751 (Cruz).) Additionally, an accomplice of the actual killer can be
convicted of murder pursuant to vicarious liability theories, including the natural and
probable consequences doctrine and the felony-murder rule. (Id. at pp. 751-752.) Under
both theories, the accomplice’s intent to kill is irrelevant. (Id. at p. 752.)
              In 1978, the electorate adopted Proposition 7 (Prop. 7, as approved by
voters, Gen. Elec. (Nov. 7, 1978)), which increased the penalties for first and second
degree murder and strengthened California’s death penalty law. (Solis, supra,
46 Cal.App.5th at pp. 772-773.) Twelve years later, in 1990, the electorate adopted
Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), which
as relevant here, added five felonies to the list of felonies for the felony-murder rule and
revised the scope of capital liability. (Solis, supra, 46 Cal.App.5th at p. 773.)
              In 2018, S.B. 1437 amended the natural and probable consequences
doctrine and the felony-murder rule to ensure “‘[a] person’s culpability for murder [is]
premised upon that person’s own actions and subjective mens rea.’ [Citation.]” (Cruz,
supra, 46 Cal.App.5th at p. 752.) S.B. 1437 amended sections 188 and 189. Specifically,
section 188, subdivision (a)(3), now states that “to be convicted of murder, a principal in
a crime shall act with malice aforethought[]” and “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” Section 189 now provides
that a person can only be found guilty of murder if that person (1) was the actual killer, or
(2) aided, abetted, or otherwise assisted the actual killer and had the intent to kill, or (3)
was a major participant in an underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e).)
              Additionally, S.B. 1437 added section 1170.95, which allows defendants
previously convicted of murder under a natural and probable consequences or felony

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murder theory to petition the trial court to vacate their murder convictions. Section
1170.95 also allows for resentencing if defendants could not be convicted of murder now
based on the amendments to sections 188 and 189. The court reviews the petition and if
it determines the petitioner made a prima facie showing he or she is entitled to relief, the
court must issue an order to show cause. (§ 1170.95, subd. (c).) The court next holds a
hearing to determine whether to vacate the petitioner’s murder conviction and resentence
the petitioner. (§ 1170.95, subd. (d)(1).) If the court determines the petitioner is entitled
to relief, his or her murder conviction “shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subd. (e).)
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              Carrasco contends S.B. 1437 did not amend Propositions 7 and 115. All
published opinions addressing this issue have concluded that S.B. 1437 did not
unconstitutionally amend either initiative. This includes two published opinions from
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this court (Solis, supra, 46 Cal.App.5th at p. 769; Cruz, supra, 46 Cal.App.5th at p. 747)
and many from our sister courts, including most recently People v. Lopez (2020)
51 Cal.App.5th 589, People v. Alaybue (2020) 51 Cal.App.5th 207, People v. Johns
(2020) 50 Cal.App.5th 46, People v. Prado (2020) 49 Cal.App.5th 480, and People v.
Bucio (2020) 48 Cal.App.5th 300. Previously, Division One of this court in People v.
Lamoureux (2019) 42 Cal.App.5th 241, review denied February 19, 2020, S259835, and
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, review denied February



2
             In his capacity as California’s chief law officer (Cal. Const., art. V, § 13),
the Attorney General agrees.
3
               Solis and Cruz rejected the same claims the District Attorney makes here.
Moreover, we deny the District Attorney’s request for judicial notice of legislative
materials, propositions, and statutes. Judicial notice is unnecessary because citation to
the material is sufficient. (Wittenburg v. Beachwalk Homeowners Assn. (2013)
217 Cal.App.4th 654, 665, fn. 4.)


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19, 2020, S259700, concluded S.B. 1437 did not invalidly amend Proposition 7 and/or
Proposition 115. We find the reasoning in these cases persuasive and follow them here.
              S.B. 1437 did not unconstitutionally amend Proposition 7 because
S.B. 1437 concerned the elements of murder and Proposition 7 was concerned with the
penalties for murder. (Solis, supra, 46 Cal.App.5th at p. 779; Cruz, supra,
46 Cal.App.5th at pp. 747, 754, 757.) S.B. 1437 did not unconstitutionally amend
Proposition 115 because S.B. 1437 did not augment or restrict the list of predicate
felonies on which felony murder may be based, which was Proposition 115’s subject
matter. (Solis, supra, 46 Cal.App.5th at p. 781; Cruz, supra, 46 Cal.App.5th at p. 760.)
Thus, the trial court erred by concluding S.B. 1437 was unconstitutional and denying
Carrasco’s petition on that basis only.
                                      DISPOSITION
              The postjudgment order is reversed and the matter is remanded for further
proceedings on the merits of Carrasco’s petition. Carrasco’s request we take judicial
notice of the court dockets of cases cited in her briefing is granted. (Evid. Code, §§ 452,
subd. (c) & (d), 459, subd. (a).)




                                                 O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.




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