Filed 8/24/20 P. v. Wollett 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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B299129
                                                           (Super. Ct. No. F411505002)
      Plaintiff and Respondent,                             (San Luis Obispo County)

 v.

 PATRICK OREN WOLLETT,

      Defendant and Appellant.


      Patrick Oren Wollett appeals from a postjudgment order
denying his petition for resentencing under Penal Code1 section
1170.95. Wollett 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 December 2007, Wollett and codefendant Chad
Westbrook assaulted Joshua Houlgate with a baseball bat and a
metal object after discovering him in bed with Wollett’s brother’s


       All further undesignated statutory references are to the
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Penal Code.
fiancé. When Houlgate tried to escape, Westbrook retrieved a
shotgun and fatally shot him. Wollett was subsequently
convicted of first degree murder (§§ 187, subd. (a), 189) and
assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also
found true allegations that Wollett personally inflicted great
bodily injury in committing the assault (§ 12022.7, subd. (a)), that
he personally used a deadly weapon in committing the murder
(§ 12022, subd. (b)), and that a principal was armed with a
firearm in committing the murder (§ 12022, subd. (a)(1)). Wollett
was sentenced to an aggregate term of 32 years to life in state
prison.
       On appeal, we reversed Wollett’s conviction of first degree
murder due to instructional error regarding the natural and
probable consequences doctrine of accomplice liability. (People v.
Wollett (Feb. 16, 2012, B224204) [non-pub. opn.].) In doing so, we
noted that “the prosecution did not argue that Wollett was liable
for the murder because of his subjective intent to commit,
facilitate, or encourage the murder. The prosecution argued that
Wollett aided and abetted the assault and the murder was a
natural and probable consequence of the assault, and the jury
was instructed only on that theory. The instruction stated that,
to find Wollett guilty of premeditated murder, the jury must find
that he committed assault with a deadly weapon, a coparticipant
in the assault committed the offense of murder, and a reasonable
person in Wollett’s position would have known that murder was a
natural and probable consequence of the assault. [Citation.]”
(Id. at p. 5.)
       In reversing the first degree murder conviction, “[w]e
conclude[d] that the trial court erred in failing to instruct the jury
that to convict [Wollett] of first degree premeditated murder
under the natural and probable consequences rule, the jury must
find that first degree premeditated murder, not simply murder,



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was a natural and probable consequence of the assault.” (People
v. Wollett, supra, B224204, at pp. 1-2.) The prosecution was
given the option of either retrying Wollett for first degree murder
or accepting a modification of the judgment to reflect a conviction
of second degree murder. (Id. at p. 11.) After the prosecution
announced that it would not retry Wollett for first degree murder,
the trial court resentenced Wollett for second degree murder and
assault with a deadly weapon to an aggregate term of 21 years to
life in state prison.
        Following the enactment of SB 1437, Wollett 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
Wollett’s opposition, the prosecution further asserted that SB
1437 violates the separation of powers doctrine by undermining
the finality of court judgments.
        In denying Wollett’s petition, the trial court concluded 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, [Wollett] cannot, as a
matter of law, secure the relief . . . section 1170.95 purports to
offer.”
                           DISCUSSION
        Wollett contends the trial court erred in denying his
petition for resentencing under section 1170.95 based on the
finding that SB 1437 is unconstitutional. We agree.




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       SB 1437, which went into effect on January 1, 2019,
amended the definition of murder in sections 188 and 189 to
narrow the scope of the felony murder rule and the natural and
probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2-3,
p. 6679.) 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, review denied July 8, 2020,
S262499 (Bucio).)
       Before Wollett filed his 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 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



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589; 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; 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 Wollett’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:


      YEGAN, Acting P. J.            TANGEMAN, 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).)



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                     Dodie Harman, Judge
           Superior Court County of San Luis Obispo
               ______________________________

      Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Dan Dow, District Attorney, Christopher Peuvrelle, Melissa
Chabra, Deputy District Attorneys, for Plaintiff and Respondent.




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