Filed 3/18/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                         DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                          G057510

        v.                                             (Super. Ct. No. 94SF0029)

ROGELIO VASQUEZ SOLIS,                                 OPINION

    Defendant and Appellant.



                  Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Reversed and remanded.
                  Richard A. Levy, 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.
                                     *          *          *
                                      INTRODUCTION
              Senate Bill No. 1437, enacted in 2018, amended Penal Code sections 188
and 189, and added section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.) (All further
statutory references are to the Penal Code, unless otherwise indicated.) The intent of the
legislation was to limit application of the felony murder rule and murder based on the
natural and probable consequences doctrine by modifying the mens rea element of those
crimes. The legislation also created a procedure by which a defendant previously
convicted of murder under either of those theories could file a petition for resentencing.
              Defendant Rogelio Vasquez Solis, who had been convicted of second
degree murder based on the doctrine of natural and probable consequences, filed such a
petition. The Orange County District Attorney opposed defendant’s petition on the
ground Senate Bill No. 1437 unconstitutionally amended two voter-approved initiatives.
The trial court agreed and denied the petition. For the reasons we shall explain, we hold
that Senate Bill No. 1437 is constitutional. People v. Cruz (Mar. 18, 2020, G057564)
___ Cal.App.5th ___, filed concurrently with this opinion, reaches the same conclusion
based on similar reasoning.
              Legislation unconstitutionally amends an initiative statute if it changes that
statute “‘“by adding or taking from it some particular provision.”’” (People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 279 (Gooden), quoting People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 570-571 (Pearson).) 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.’” (Gooden, supra, at pp. 279-280.)
              Senate Bill No. 1437 addresses the elements of the crime of murder and is
directed to the mental state and conduct of those accused of murder. (Stats. 2018,
ch. 1015, § 1(f), (g).) It does not authorize anything the two initiatives prohibited, nor

                                              2
prohibit anything they authorized. Senate Bill No. 1437 neither adds any particular
provision to nor subtracts any particular provision from either initiative.
              We reverse the trial court’s order and direct the trial court to consider the
merits of defendant’s petition.
                                                          1
                                  STATEMENT OF FACTS
              In 1993, a confrontation occurred at a state beach in San Clemente.
Members of the San Clemente Vario Chico (SCVC) gang threw a variety of objects at a
vehicle in which the victim was riding. One of the objects, a paint roller handle, struck
the victim in the head, causing his death. Both defendant and his codefendant identified
other SCVC gang members as having thrown paint rollers and having boasted about
hurting someone. Various painting materials, including a cover for a paint roller, were
recovered from the codefendant’s vehicle by police after the attack. Members of the
victim’s group saw SCVC gang members “celebrating and ‘high-fiving’ each other” after
the attack.
              At trial, a gang expert testified the confrontation was gang-related, and that
defendant and his codefendant were both SCVC gang members. Defendant denied being
an SCVC gang member, but admitted he associated with the gang. Defendant admitted
throwing a rock at the vehicle in which the victim was riding, but claimed he was acting
in self-defense because the vehicle was approaching at a high speed.
                                  PROCEDURAL HISTORY
              In 1997, a jury convicted defendant of second degree murder (§ 187,
subd. (a)) and various other crimes. The jury found true gang sentencing enhancement
allegations for all counts. (§ 186.22, subd. (b).) The trial court sentenced defendant to
prison for 15 years to life for second degree murder, and either imposed concurrent terms
or stayed imposition of sentence on all other counts and enhancements. Defendant
1
  The facts are taken from this court’s unpublished opinion, People v. Penuelas and Solis
(Oct. 14, 1999, G021570).

                                              3
appealed from the judgment. A panel of this court affirmed in an unpublished opinion,
concluding in relevant part that there was sufficient evidence defendant aided and abetted
the second degree murder of the victim based on the doctrine of natural and probable
consequences. (People v. Penuelas and Solis, supra, G021570.)
              In December 2018, defendant, in propria person, filed a petition for
resentencing pursuant to section 1170.95. The District Attorney filed opposition to the
petition; through appointed counsel, defendant filed a written reply. The trial court denied
the petition on the ground Senate Bill No. 1437 was unconstitutional; the court did not
address the District Attorney’s alternative argument that defendant was statutorily
ineligible for relief under section 1170.95. The court concluded that Senate Bill
No. 1437 “materially amends Penal Code § 190 as enacted by the electorate via
Proposition 7 in a manner inconsistent with the electorate’s intent and without the
electorate’s approval,” and “materially amends Penal Code § 189 and § 190.2, as
amended by the electorate via Proposition 115, in a manner inconsistent with the
electorate’s intent and without the required two-thirds majority of both houses of the
California Legislature.” (Boldface, underscoring, and some capitalization omitted.)
Defendant timely filed a notice of appeal from the postjudgment order.
                                        DISCUSSION
                                              I.
                                    STANDARD OF REVIEW
              We review questions regarding the constitutionality of a statute de novo.
(Stennett v. Miller (2019) 34 Cal.App.5th 284, 290.)
              “[I]n resolving a legal claim, a court should speak as narrowly as possible
and resort to invalidation of a statute only if doing so is necessary.” (People v. Kelly
(2010) 47 Cal.4th 1008, 1047.) “Courts should exercise judicial restraint in passing upon
the acts of coordinate branches of government; the presumption is in favor of
constitutionality, and the invalidity of the legislation must be clear before it can be

                                              4
declared unconstitutional.” (Dittus v. Cranston (1959) 53 Cal.2d 284, 286.) “[O]ne of
the fundamental principles of our constitutional system of government is that a statute,
once duly enacted, ‘is presumed to be constitutional. Unconstitutionality must be clearly
shown, and doubts will be resolved in favor of its validity.’” (Lockyer v. City and County
of San Francisco (2004) 33 Cal.4th 1055, 1086.) The power to define crimes is vested in
the Legislature. (People v. Powell (2018) 5 Cal.5th 921, 943.)
                                               II.
  LIMITATIONS ON THE LEGISLATURE’S ABILITY TO AMEND A VOTER-APPROVED INITIATIVE
              A statute enacted by voter initiative may be amended or repealed by the
Legislature only with the approval of the electorate, unless the initiative statute otherwise
provides. (Cal. Const., art. II, § 10, subd. (c).) “‘[T]he purpose of California’s
constitutional limitation on the Legislature’s power to amend initiative statutes is to
“protect the people’s initiative powers by precluding the Legislature from undoing what
the people have done, without the electorate’s consent.”’” (People v. Kelly, supra,
47 Cal.4th at p. 1025; see Gooden, supra, 42 Cal.App.5th at p 279.)
              For purposes of article II, section 10 of the California Constitution,
legislation amends an initiative if it “‘“change[s] an existing initiative statute by adding
or taking from it some particular provision.”’” (Gooden, supra, 42 Cal.App.5th at p. 279,
quoting Pearson, supra, 48 Cal.4th at p. 571.) “[T]his does not mean that any legislation
that concerns the same subject matter as an initiative, or even augments an initiative’s
provisions, is necessarily an amendment for these purposes. ‘The Legislature remains
free to address a “‘related but distinct area’” [citations] or a matter that an initiative
measure “does not specifically authorize or prohibit.”’ [Citations.] In deciding whether
this particular provision amends Proposition 115, we simply need to ask whether it




                                               5
prohibits what the initiative authorizes, or authorizes what the initiative prohibits.”
                                                                  2
(Pearson, supra, at p. 571; see Gooden, supra, at pp. 279-280.)
              In determining whether the Legislature has amended a voter initiative, we
have a duty to guard the people’s initiative power and to liberally construe it whenever it
is challenged to ensure a voter initiative is not improperly annulled. (Estate of
Claeyssens (2008) 161 Cal.App.4th 465, 470-471.) Doubts should be resolved in favor
of the initiative power. (Id. at p. 471.) Legislative amendments that conflict with the
subject matter of a statute enacted by voter initiative must be approved by the voters
unless the original initiative permits the Legislature to take such action on its own. (Ibid.;
see Cal. Const., art. II, § 10, subd. (c).) However, the court should not read into an
initiative an “undisclosed objective . . . that was not presented to the voters.” (Knight v.
Superior Court (2005) 128 Cal.App.4th 14, 18.)
                                             III.
                          RELEVANT INITIATIVES AND LEGISLATION
              A. Proposition 7
              Proposition 7 was approved by the voters in 1978. The initiative increased
the penalties for first and second degree murder (Ballot Pamp., Gen. Elec. (Nov. 7, 1978)
text of Prop. 7, § 2, p. 33 (Prop. 7 Pamphlet)), expanded the list of special circumstances

2
  The District Attorney cites Proposition 103 Enforcement Project v. Quackenbush
(1998) 64 Cal.App.4th 1473 (Quackenbush) and Mobilepark West Homeowners Assn. v.
Escondido Mobilepark West (1995) 35 Cal.App.4th 32 (Mobilepark West) for the
standard that an amendment is “‘“‘any change of the scope or effect of an existing statute,
whether by addition, omission, or substitution of provisions, which does not wholly
terminate its existence, whether by an act purporting to amend, repeal, revise, or
supplement, or by an act independent and original in form.’”’” (Quackenbush, supra, at
pp. 1484-1485; Mobilepark West, supra, at p. 40.) This language was taken from
Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776-777. In People v. Kelly,
supra, 47 Cal.4th at page 1026, the California Supreme Court declined to “endorse any
such expansive definition” of the term “amendment.” Therefore, the cases in which the
appellate court concluded a statute constituted an amendment based on an “expansive
definition” of amendment are of less precedential value to our analysis.

                                              6
requiring that a defendant convicted of first degree murder be sentenced to death or life
imprisonment without the possibility of parole (id., text of Prop. 7, § 6, pp. 42-43), and
provided that if aggravating circumstances outweighed mitigating circumstances, the jury
must return a sentence of death (id., text of Prop. 7, § 8, pp. 43-44).
              Proposition 7 did not authorize amendment by the Legislature without voter
approval. (People v. Cooper (2002) 27 Cal.4th 38, 44 (Cooper).)
              B. Proposition 115
              Proposition 115 expanded the definition of first degree murder by
amending section 189 to include murders occurring during the commission or attempted
commission of kidnapping, train wrecking, or any act punishable under sections 286, 288,
288a, or 289. (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115, § 9, p. 66
(Prop. 115 Pamphlet).)
              Proposition 115 also increased the number of underlying crimes to which
the felony murder rule would apply. Proposition 115 amended section 190.2 to require a
sentence of death or life in prison without the possibility of parole for a person who is not
the actual killer as follows: “(c) Every person, not the actual killer, who, with the intent
to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in
the commission of murder in the first degree shall suffer death or confinement in state
prison for a term of life without the possibility of parole, in any case in which one or
more of the special circumstances enumerated in subdivision (a) of this section has been
found to be true under Section 190.4. [¶] (d) Notwithstanding subdivision (c), every
person, not the actual killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which felony
results in the death of some person or persons, who is found guilty of murder in the first
degree therefor, shall suffer death or confinement in state prison for life without the
possibility of parole if a special circumstance enumerated in paragraph (17) of

                                              7
subdivision (a) has been found to be true under Section 190.4.” (Prop. 115 Pamphlet,
supra, text of Prop. 115, § 10, p. 66.)
              Proposition 115 specifically permitted amendment by the Legislature, but
only if approved by a supermajority of both houses. (Prop. 115 Pamphlet, supra, text of
Prop. 115, § 30, p. 69.)
              C. Felony Murder/Natural and Probable Consequences Doctrine
              Malice is generally an essential element of the crime of murder. (§ 187,
subd. (a).) Malice is express “when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature” (§ 188, subd. (a)(1)), and implied
“when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart” (id., subd. (a)(2)). Implied malice has
both physical and mental components. (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
The physical component is the performance of an act having natural consequences that
are dangerous to life. (Ibid.) The mental component is established when the defendant
knows his or her conduct endangers another person’s life yet acts with a conscious
disregard for life. (Ibid.)
              In California, the felony murder rule and the natural and probable
consequences doctrine have existed as exceptions to the requirement of malice as an
element of murder. “The felony-murder rule makes a killing while committing certain
felonies murder without the necessity of further examining the defendant’s mental
state. . . . First degree felony murder is a killing during the course of a felony specified in
section 189, such as rape, burglary, or robbery. Second degree felony murder is ‘an
unlawful killing in the course of the commission of a felony that is inherently dangerous
to human life but is not included among the felonies enumerated in section 189.’”
(People v. Chun, supra, 45 Cal.4th at p. 1182.)
              “The natural and probable consequences doctrine is based on the principle
that liability extends to reach ‘the actual, rather than the planned or “intended” crime,

                                               8
committed on the policy [that] . . . aiders and abettors should be responsible for the
criminal harms they have naturally, probably, and foreseeably put in motion.’” (People
v. Chiu (2014) 59 Cal.4th 155, 164.) “‘By its very nature, aider and abettor culpability
under the natural and probable consequences doctrine is not premised upon the intention
of the aider and abettor to commit the nontarget offense because the nontarget offense
was not intended at all. It imposes vicarious liability for any offense committed by the
direct perpetrator that is a natural and probable consequence of the target offense.
[Citation.] Because the nontarget offense is unintended, the mens rea of the aider and
abettor with respect to that offense is irrelevant and culpability is imposed simply
because a reasonable person could have foreseen the commission of the nontarget
crime.’” (Ibid.)
              D. Senate Bill No. 1437
              The stated purpose of Senate Bill No. 1437 was to reform the law relating
to the felony murder rule and the natural and probable consequences doctrine: “It is
necessary to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, §1(f).)
              Senate Bill No. 1437 amended sections 188 and 189, and added
section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.) Section 188 was amended to add: “[I]n
order to be convicted of murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Section 189 was amended to
add, as subdivision (e): “A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable for murder only if one of
the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was

                                               9
not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission of murder in
the first degree. [¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of
                                                               3
Section 190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.)
              Finally, section 1170.95 provided a procedure by which a defendant
convicted of felony murder or murder under a natural and probable consequences theory
can seek to have the conviction vacated. (§ 1170.95; Stats. 2018, ch. 1015, § 4.)
              Senate Bill No. 1437 was approved by a simple majority of the California
Legislature, not by two-thirds of both houses. (Gooden, supra, 42 Cal.App.5th at p. 277.)
                                             IV.
     SENATE BILL NO. 1437 DOES NOT UNCONSTITUTIONALLY AMEND PROPOSITION 7.
              The District Attorney contends Senate Bill No. 1437 unconstitutionally
amends Proposition 7, which increased the penalties for the crime of murder, by
redefining the crime of murder and changing who can be punished for felony murder and
murder under the natural and probable consequences doctrine. Defendant and the
Attorney General contend that Proposition 7 did not establish or fix the elements of
murder and therefore does not prohibit the Legislature from revising the elements of that
crime. The first step in this court’s analysis is to determine what Proposition 7 did and
did not do.
              “When we interpret an initiative, we apply the same principles governing
statutory construction. We first consider the initiative’s language, giving the words their
ordinary meaning and construing this language in the context of the statute and initiative

3
  Senate Bill No. 1437 also added a provision that the language of section 189,
subdivision (e) would not apply if the defendant knew or reasonably should have known
the murder victim was a peace officer killed in the course of performing his or her duties.
(§ 189, subd. (f); Stats. 2018, ch. 1015, § 3.) This subdivision is inapplicable to any
party’s argument on appeal.

                                             10
as a whole. If the language is not ambiguous, we presume the voters intended the
meaning apparent from that language, and we may not add to the statute or rewrite it to
conform to some assumed intent not apparent from that language. If the language is
ambiguous, courts may consider ballot summaries and arguments in determining the
voters’ intent and understanding of a ballot measure.” (Pearson, supra, 48 Cal.4th at
p. 571.)
              Proposition 7 repealed and replaced sections 190 through 190.5. (Prop. 7
Pamphlet, supra, text of Prop. 7, §§ 1-12, pp. 33, 41-46.) Senate Bill No. 1437 amended
sections 188 and 189, and added section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.) Senate
Bill No. 1437 therefore does not directly amend or modify the statutory changes effected
by Proposition 7. We therefore consider whether Senate Bill No. 1437 nevertheless
amends the voters’ overarching intent in approving Proposition 7.
              Ballot arguments submitted by the supporters of a voter initiative may be
considered in establishing the voters’ intent. (Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 16.) The argument in favor of Proposition 7 read as follows:
              “CHARLES MANSON, SIRHAN SIRHAN, THE ZODIAC KILLER,
THE SKID-ROW SLASHER, THE HILLSIDE STRANGLER.
              “These infamous names have become far too familiar to every Californian.
They represent only a small portion of the deadly plague of violent crime which terrorizes
law-abiding citizens.
              “Since 1972, the people have been demanding a tough, effective death
penalty law to protect our families from ruthless killers. But, every effort to enact such a
law has been thwarted by powerful anti-death penalty politicians in the State Legislature.
              “In August of 1977, when the public outcry for a capital punishment law
became too loud to ignore, the anti-death penalty politicians used their influence to make
sure that the death penalty law passed by the State Legislature was as weak and
ineffective as possible.

                                             11
              “That is why 470,000 concerned citizens signed petitions to give you the
opportunity to vote on this new, tough death penalty law.
              “Even if the President of the United States were assassinated in California,
his killer would not receive the death penalty in some circumstances. Why? Because the
Legislature’s weak death penalty law does not apply. Proposition 7 would.
              “If Charles Manson were to order his family of drug-crazed killers to
slaughter your family, Manson would not receive the death penalty. Why? Because the
Legislature’s death penalty law does not apply to the mastermind of a murder such as
Manson. Proposition 7 would.
              “And, if you were to be killed on your way home tonight simply because
the murderer was high on dope and wanted the thrill, that criminal would not receive the
death penalty. Why? Because the Legislature’s weak death penalty law does not apply
                                          [4]
to every murderer. Proposition 7 would.
              “Proposition 7 would also apply to the killer of a judge, a prosecutor, or a
fireman. It would apply to a killer who murders a citizen in cold blood because of his
race or religion or nationality. And, it would apply to all situations which are covered by
our current death penalty law.
              “In short, your YES vote on Proposition 7 will give every Californian the
protection of the nation’s toughest, most effective death penalty law.
              “A long and distinguished list of judges and law enforcement officials have
agreed that Proposition 7 will provide them with a powerful weapon of deterrence in their
war on violent crime.

4
  California courts have held the assertion that Proposition 7 would apply the death
penalty to every murderer was “merely hyperbole” (Domino v. Superior Court (1982)
129 Cal.App.3d 1000, 1010), “political rhetoric” (Carlos v. Superior Court (1983) 35
Cal.3d 131, 143, fn. 11, overruled on another ground in People v. Anderson (1987)
43 Cal.3d 1104, 1147), or a “‘misconstruction of the ballot arguments’” (People v. Duff
(2014) 58 Cal.4th 527, 568-569).

                                                12
              “Your YES vote on Proposition 7 will help law enforcement officials to
stop violent crime—NOW.” (Prop. 7 Pamphlet, supra, p. 34.)
              The voters’ stated intent in enacting Proposition 7 was to expand and
strengthen the death penalty. Does the language of Senate Bill No. 1437 modify or
amend this intent?
              Two cases, one in which the court concluded a later legislative action
unconstitutionally amended Proposition 7 and one concluding such an action did not, are
relevant to our decisionmaking process here. In In re Oluwa (1989) 207 Cal.App.3d 439,
445-446 (Oluwa), the court concluded that a legislative revision increasing the
availability of work time credits to reduce inmate sentences was an unconstitutional
amendment to Proposition 7. Proposition 7 specifically stated that then-existing custody
credit statutes applied to the fixed portion of a life term for murder. (Prop. 7 Pamphlet,
supra, text of Prop. 7, § 2, p. 33.) At the time, the Penal Code permitted prisoners to
reduce their sentences “by a maximum one-third for good behavior and participation in
prison programs.” (Oluwa, supra, at p. 442.) The Legislature later enacted sections 2933
and 2934, which allowed prisoners to earn a reduction of up to one-half their sentences
for work, training, and education programs. (Oluwa, supra, at p. 443.)
              The petitioner, who was serving a 15-years-to-life term, claimed he was
entitled to earn custody credits under the more generous terms of section 2933 and 2934.
The appellate court held that allowing the petitioner the credits he sought under the newly
enacted statutes “would permit the Legislature to amend the provisions of Proposition 7
by reducing the amount of time a second degree murderer must serve before being
eligible for a parole hearing without submitting that matter to the voters.” (Oluwa, supra,
207 Cal.App.3d at p. 446.) The court specifically noted that in passing Proposition 7, the
electorate intended that a person sentenced to 15 years to life would have to serve a
minimum of 10 years before becoming eligible for parole. (Oluwa, supra, at p. 445.)



                                             13
              In Cooper, supra, 27 Cal.4th at page 41, the defendant was convicted of
second degree murder and sentenced to 15 years to life. The trial court limited the
defendant’s presentence conduct credits to 15 percent of the actual time served, pursuant
to section 2933.1, subdivision (c), which was enacted by the Legislature after
Proposition 7. (Cooper, supra, at p. 41.) The defendant argued, and the court of appeal
agreed, the 15 percent limitation on custody credit was an unconstitutional amendment of
Proposition 7, despite the fact it “does not directly contradict the intention of the
electorate in approving [Proposition 7].” (Cooper, supra, at pp. 41, 45.) The Supreme
Court disagreed and held “because former section 190 [as amended by Proposition 7]
does not specifically authorize or prohibit presentence conduct credits, any limitation of
such credits against defendant’s sentence . . . is not an invalid modification of
[Proposition 7].” (Id. at p. 47.)
              Neither Oluwa nor Cooper involved the statutes directly addressed by
Proposition 7. In both cases, the courts therefore considered whether the later legislative
actions would indirectly amend Proposition 7 by being inconsistent with the voters’ intent
in approving Proposition 7. In Oluwa, the legislation was determined to be contrary to
the voters’ intent, while in Cooper it was not. The key factor was not whether defendants
must serve the greatest sentence possible; both involved statutes under which defendants
were entitled to accumulate credits that would apply against their total sentences. Rather,
the courts looked to whether the later legislation was “inconsistent” with the initiative or
“otherwise circumvent[ed] the intent of the electorate.” (Cooper, supra, 27 Cal.4th at
p. 48.)
              Proposition 7 provided greater penalties for those convicted of murder and
increased the number of special circumstances that could form the basis of a sentence of
death or life in prison without parole. In contrast, Senate Bill No. 1437 changed the
elements of murder by limiting the circumstances in which malice can be implied,
thereby restricting the application of the felony murder rule and the natural and probable

                                              14
consequences doctrine. Senate Bill No. 1437 is neither inconsistent with Proposition 7,
nor does it circumvent the electorate’s intent.
              The definition of a crime is distinct from the punishment for a crime.
(People v. Anderson (2009) 47 Cal.4th 92, 119 [a “penalty provision is not an element of
an offense under California law”].) Every crime consists of a group of essential
elements, known as the corpus delecti, that are created by statute or law. (Id. at p. 101.)
These elements define the crime, and each element must be proven to establish an
offense. (Ibid.) Punishment is not an element of a crime but is the penalty imposed by
judgment of a court of law on a person for committing a crime, which penalty may
include death, confinement, or a fine, among other things. (People v. Ruiz (2018)
4 Cal.5th 1100, 1107.)
              Proposition 7 unquestionably dealt with punishment for crime (specifically,
murder), while Senate Bill No. 1437 unquestionably addresses a factual element of crime
(specifically, the mens rea for murder). Senate Bill No. 1437 does not affect the goal of
increasing the use of the death penalty as a deterrent to violent crime. Senate Bill
No. 1437 uses the same criteria in determining that an individual may not be prosecuted
for felony murder as section 190.2 uses in determining whether a person convicted of
felony murder may be subject to the penalty of death. (Compare § 189, subd. (e) with
§ 190.2, subds. (c), (d).) In other words, individuals spared prosecution for felony
murder and murder based on the natural and probable consequences doctrine under
Senate Bill No. 1437 would not have been subject to the death penalty under
Proposition 7. Senate Bill No. 1437 has no effect on the imposition of the death penalty
and therefore does not unconstitutionally amend Proposition 7.
                                             V.
    SENATE BILL NO. 1437 DOES NOT UNCONSTITUTIONALLY AMEND PROPOSITION 115.
              Proposition 115 amended section 189 by adding more crimes to the list of
felonies that bring the felony murder rule into play. (Prop. 115 Pamphlet, supra, § 9,

                                             15
p. 66.) Senate Bill No. 1437 amended section 189 by adding subdivision (e), limiting
liability under the felony murder rule and the natural and probable consequences doctrine
by requiring proof of actual malice as an element of those crimes. Senate Bill No. 1437
also amended section 188 (which Proposition 115 had left untouched) by requiring proof
of malice aforethought to convict an individual of murder, and prohibiting the imputation
of malice based solely on an individual’s participation in a crime. (Stats. 2018, ch. 1015,
§ 2.) Because Senate Bill No. 1437 prohibits imputation of malice to those who are not
the actual killer, the District Attorney argues that it amends Proposition 115.
              Before the enactment of Proposition 115, section 189 read, in relevant part:
“All murder which is . . . committed in the perpetration of, or attempt to perpetrate, arson,
rape, carjacking, robbery, burglary, mayhem, or any act punishable under Section 288, is
murder of the first degree; and all other kinds of murders are of the second degree.”
(Former § 189, as amended by Stats. 1982, ch. 950, § 1.) Proposition 115 added
kidnapping (§ 207), train wrecking (§ 218), sodomy (§ 286), oral copulation (former
§ 288a), and penetration by a foreign object (§ 289) to the list of underlying crimes in
section 189 leading to criminal liability for first degree murder. (Prop. 115 Pamphlet,
supra, text of Prop. 115, § 9, p. 66.) Section 189 was subsequently amended to add other
underlying crimes to that list, including torture and discharging a firearm from inside a
vehicle at a person outside the vehicle. (See § 189, subd. (a).)
              Senate Bill No. 1437 added subdivision (e) to section 189, reading as
follows:
              “(e) A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if one of the
following is proven:
              “(1) The person was the actual killer.




                                             16
              “(2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree.
              “(3) The person was a major participant in the underlying felony and acted
with reckless indifference to human life.”
              Section 188 refers directly to section 189, subdivision (e): “Except as
stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
              Senate Bill No. 1437 therefore limits liability for felony murder and murder
under the natural and probable consequences doctrine to an individual who is the actual
killer, or who had the intent to kill and undertook specific actions to assist in the
commission of the murder, or who was a major participant in the underlying felony and
acted with reckless indifference to human life. These limitations do not directly modify
or amend the language of Proposition 115.
              The District Attorney argues that the goals of Proposition 115, as set forth
in the voter guide, show that Senate Bill No. 1437 amends Proposition 115. The District
Attorney quotes the following from section 1 of the text of Proposition 115:
              “(a) We the people of the State of California hereby find that the rights of
crime victims are too often ignored by our courts and by our State Legislature, that the
death penalty is a deterrent to murder, and that comprehensive reforms are needed in
order to restore balance and fairness to our criminal justice system.
              “(b) In order to address these concerns and to accomplish these goals, we
the people further find that is it necessary to reform the law as developed in numerous
California Supreme Court decisions and as set forth in the statutes of this state. These
decisions and statutes have unnecessarily expanded the rights of accused criminals far
beyond that which is required by the United States Constitution, thereby unnecessarily

                                              17
adding to the costs of criminal cases, and diverting the judicial process from its function
as a quest for truth.
               “(c) The goals of the people in enacting this measure are to restore balance
to our criminal justice system, to create a system in which violent criminals receive just
punishment, in which crime victims and witnesses are treated with care and respect, and
in which society as a whole can be free from the fear of crime in our homes,
neighborhoods, and schools.” (Prop. 115 Pamphlet, supra, text of Prop. 115, § 1(a)-(c),
p. 33.)
               The modifications to the statutes by Senate Bill No. 1437 apply only to a
defendant who is not the actual killer of a murder victim, did not act with the intent to
kill, and did not act with reckless indifference to human life while committing one of the
specified felonies, resulting in death to the victim. The legislation does not prevent
violent criminals from receiving justice. It does not disrespect the victims of crime or
witnesses to crime. It does, however, seek to restore balance to the justice system by
ensuring that those who commit crimes are punished according to their own culpability.
Therefore, Senate Bill No. 1437 is consistent with Proposition 115, and does not
unconstitutionally amend it.
               The District Attorney points out that Proposition 115 added section 190.2,
subdivisions (c) and (d), which collectively impose the penalty of death or life
imprisonment without the possibility of parole on those who are accomplices to first
degree murder if one or more specific elements are found to be true. (As noted ante,
those elements are that the accomplice act with the intent to kill, or act with reckless
indifference to human life while being a major participant in the crime.) According to the
District Attorney, Senate Bill No. 1437 unconstitutionally amends Proposition 115 by
requiring one or more of those same elements to be found true simply to find an
accomplice guilty of murder.



                                             18
               The District Attorney’s argument is without merit. First, it would forever
limit the use of specific language in any statute after its use in an initiative, in
contravention of existing California law. (People v. Cooper, supra, 27 Cal.4th at p. 44
[“‘“[T]here is a cognate rule, recognized as applicable to many cases, to the effect that
where the reference is general instead of specific, such as a reference to a system or body
of laws or to the general law relating to the subject in hand, the referring statute takes the
law or laws referred to not only in their contemporary form, but also as they may be
changed from time to time, and . . . as they may be subjected to elimination altogether by
repeal.”’”].) Second, as addressed fully ante, the definition of a crime and the
punishment for a crime are separate and distinct matters.
               The District Attorney also argues that because Proposition 115 reenacted
section 189 in full, the Legislature was prohibited from later amending any portion of that
statute by simple majority. If any part of a statute is amended, the entire statute must be
reenacted by law. (Cal. Const., art. IV, § 9; County of San Diego v. Commission on State
Mandates (2018) 6 Cal.5th 196, 206.) “When technical reenactments are required under
article IV, section 9 of the Constitution—yet involve no substantive change in a given
statutory provision—the Legislature in most cases retains the power to amend the restated
provision through the ordinary legislative process. This conclusion applies unless the
provision is integral to accomplishing the electorate’s goals in enacting the initiative or
other indicia support the conclusion that voters reasonably intended to limit the
Legislature’s ability to amend that part of the statute. This interpretation of article II of
the Constitution is consistent with the people’s precious right to exercise the initiative
power. [Citation.] It also comports with the Legislature’s ability to change statutory
provisions outside the scope of the existing provisions voters plausibly had a purpose to
supplant through an initiative. [Citation.] We therefore hold that where a statutory
provision was only technically reenacted as part of other changes made by a voter
initiative and the Legislature has retained the power to amend the provision through the

                                               19
ordinary legislative process, the provision cannot fairly be considered ‘expressly included
in . . . a ballot measure’ . . . .” (County of San Diego v. Commission on States Mandates,
supra, 6 Cal.5th at p. 214.) Therefore, reenactment of section 189 in full by Proposition
115 did not affect the Legislature’s ability to revise any portion of section 189 not
directly addressed by the initiative.
              The Legislative Counsel’s Digest for Senate Bill No. 1437 supports our
determination that the legislation did not unconstitutionally amend Propositions 7 and
115. “The Legislative Counsel’s Digest is the official summary of the legal effect of a
bill and is relied upon by the Legislature throughout the legislative process. Although it
is not binding, the digest is entitled to great weight.” (Madrigal v. California Victim
Comp. & Government Claims Bd. (2016) 6 Cal.App.5th 1108, 1117.)
              In 1999, Assembly Bill No. 1574 amended Penal Code section 189 to
expand the felony murder rule to include torture. (Stats. 1999, ch. 694, § 1.) The
Legislative Counsel’s Digest for that legislation states, in part: “Because it would amend
an initiative statute, the bill would require a 2/3 vote of the membership of each house of
the Legislature.” (Legis. Counsel’s Dig., Assem. Bill No. 1574 (1999-2000 Reg. Sess.)
5 Stats. 1999, Summary Dig., p. 315.) The Legislative Counsel’s Digest for Assembly
Bill No. 1838, enacted a few years later, which added murder perpetrated by means of a
weapon of mass destruction to section 189, subdivision (a), includes the same proviso
regarding the need for a 2/3 vote by the Legislature. (Legis. Counsel’s Dig., Assem. Bill
No. 1838 (2001-2002 Reg. Sess.) 6 Stats. 2002, Summary Dig., pp. 250-251.)
              Notably, the Legislative Counsel’s Digest for Senate Bill No. 1437 does not
include a proviso regarding the need for a two-thirds vote. The lack of such language,
though not conclusive, is evidence that the Legislative Counsel, and therefore the




                                             20
Legislature, did not intend the new legislation to amend either of those voter-approved
               5
initiatives.
                   The only two published appellate cases addressing this issue before today—
Gooden, supra, 42 Cal.App.5th 270 and People v. Lamoureux (2019) 42 Cal.App.5th 241
(Lamoureux)—are consistent with our conclusion that Senate Bill No. 1437 does not
unconstitutionally amend Proposition 7 or Proposition 115. In both cases, the defendants
had filed petitions to vacate their murder convictions and obtain resentencing pursuant to
the procedures set forth in section 1170.95. (Gooden, supra, at p. 274; Lamoureux,
supra, at p. 246.) The trial court in Lamoureux denied the defendant’s petition on the
ground Senate Bill No. 1437 was unconstitutional (Lamoureux, supra, at p. 246), while
the trial court in Gooden concluded Senate Bill No. 1437 was constitutional and denied
the district attorney’s motion to dismiss the defendant’s petition (Gooden, supra, at
p. 274).
                   In Gooden, the appellate court concluded “Senate Bill 1437 was not an
invalid amendment to Proposition 7 or Proposition 115 because it neither added to, nor
took away from, the initiatives.” (Gooden, supra, 42 Cal.App.5th at p. 275.) In
Lamoureux, the same appellate court used the same analysis as it had in Gooden to again
conclude Senate Bill No. 1437 did not unconstitutionally amend the earlier enacted


5
  In denying defendant’s petition for resentencing, the trial court relied in part on the
Legislative Counsel’s opinion that a previous piece of proposed legislation limiting the
felony murder rule and the natural and probable consequences doctrine would have
unconstitutionally amended Propositions 7 and 115. That the Legislative Counsel
concluded a previous proposal would have unconstitutionally amended those initiatives,
while not making a similar conclusion regarding Senate Bill No. 1437, strengthens our
conclusion that Senate Bill No. 1437 does not unconstitutionally amend them. Our
conclusion is also supported by the legislative history of Senate Bill No. 1437, in which
the principal consultant of the Senate Public Safety Committee concluded the legislation
did not amend Proposition 7 or Proposition 115, or any of several other initiatives.
(Gabriel Caswell, Consultant to Sen. Public Safety Com., mem. to Sen. Public Safety File
for Sen. Bill No. 1437 (2017-2018 Reg. Sess.) pp. 12-15.)

                                                21
                                                           6
initiatives. (Lamoureux, supra, 42 Cal.App.5th at p. 246.) The Lamoureux court further
concluded that “the resentencing provision of Senate Bill 1437 does not contravene
                                                                               7
separation of powers principles or violate the rights of crime victims.” (Ibid.)
                                       DISPOSITION
              The postjudgment order is reversed and the matter is remanded to the trial
court with directions to consider the merits of defendant’s petition under Penal Code
section 1170.95.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




6
  The appellate court in Lamoureux also concluded that Senate Bill No. 1437 did not
improperly encroach on core executive branch functions, violate the separation of
powers, or violate the rights of crime victims under Marsy’s Law. (Lamoureux, supra, 42
Cal.App.5th at pp. 256, 264-265; see (Ballot Pamp., Gen. Elec. (Nov. 4, 2008), text of
Prop. 9, § 1 [“This act shall be known, and may be cited as, the ‘Victims’ Bill of Rights
Act of 2008: Marsy’s Law”].) None of these issues is raised here.
7
  On the day this court heard oral argument in the present case, the California Supreme
Court denied petitions for review and petitions to depublish both Gooden and
Lamoureux.

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