Filed 6/25/20
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                      H047221
                                                (Santa Clara County
        Plaintiff and Respondent,                Super. Ct. No. CC438923)

        v.

MALIK ALAYBUE,

        Defendant and Appellant.



        In November 2006, appellant Malik Alaybue pleaded no contest to two counts of
second degree murder (Pen. Code, § 187)1 and two counts of attempted murder (§§ 187,
664, subd. (a)). He also admitted a gang allegation (§ 186.22, subd. (b)(1)(C)) for each
count. Appellant was sentenced to concurrent indeterminate terms of 15 years to life on
the second degree murder convictions, consecutive to concurrent five-year determinate
terms on the attempted murder convictions. In January 2019, appellant petitioned the
trial court to vacate his murder and attempted murder convictions under newly enacted
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court denied
the petition. It found that Senate Bill 1437 was unconstitutional because it impermissibly
amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) and
Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)). The
court also found that Senate Bill 1437 did not apply to the crime of attempted murder.




1       Subsequent references are to the Penal Code unless otherwise provided.
       On appeal, appellant argues that Senate Bill 1437 did not amend Propositions 7
and 115, that its provisions do not violate the separation of powers doctrine, that it
applies to attempted murder convictions, and that therefore he is entitled to resentencing
on his murder and attempted murder convictions. Respondent Attorney General takes the
position that Senate Bill 1437 is constitutional, but maintains that Senate Bill 1437
applies only to murder and does not apply to attempted murder. Amicus curiae District
Attorney for the County of Santa Clara (the District Attorney) contends that Senate Bill
1437 is unconstitutional, both because it amends Propositions 7 and 115 and because it
violates separation of powers principles.2
       We conclude that Senate Bill 1437 is constitutional, as it does not amend
Propositions 7 and 115 and it does not violate the separation of powers doctrine.
However, we also determine that Senate Bill 1437 does not apply to the offense of
attempted murder. Accordingly, we reverse the trial court’s order denying the petition so
that the court may reconsider appellant’s petition, but only as to the murder convictions.


                                  I. Procedural History
       In January 2019, appellant filed a petition seeking to vacate his murder and
attempted murder convictions under Senate Bill 1437. The District Attorney opposed the
petition, arguing that Senate Bill 1437: (1) unconstitutionally amended Proposition 7 and
Proposition 115; (2) did not apply to attempted murder; and (3) violated the separation of
powers doctrine. The parties stipulated that if Senate Bill 1437 was constitutional, then




2     The District Attorney has filed an unopposed motion for judicial notice of court
documents related to this case, and legislative history documents for Propositions 7 and
115. We grant that motion. (Evid. Code, § 452, subds. (c), (d).)

                                              2
“the petitioner in this case will be eligible [for] . . . re-sentencing” on his murder
convictions.3 As described above, the trial court denied the petition.


                                 II. Statutory Framework
                                      A. Proposition 7
       Proposition 7 was approved by voters in 1978. The initiative increased the
punishment for first and second degree murder by amending section 190. (People v. Cruz
(2020) 46 Cal.App.5th 740, 753 (Cruz).) It also “sought to strengthen and expand
California’s death penalty with amendments to sections 190.1 through 190.5.” (Id. at
pp. 753-754.)
       Prior to Proposition 7’s passage, “a first degree murder conviction was punishable
by life imprisonment with the possibility of parole after seven years,” and a second
degree murder conviction was punishable by a term of five, six, or seven years in prison.
(Cruz, supra, 46 Cal.App.5th at p. 754.) Proposition 7 increased the punishment for first
degree murder to life imprisonment with the possibility of parole after 25 years. The
penalty for second degree murder was increased to life imprisonment with the possibility
of parole after 15 years. (Cruz, at p. 754.)


                                     B. Proposition 115
       Proposition 115 was approved by voters in 1990. Pertinent here, it amended
section 189, which defines the degrees of murder and addresses felony-murder liability.
Proposition 115 added kidnapping, train wrecking, and certain sex offenses to the list of

3      After briefing was completed, the Attorney General submitted a letter to this court
stating that if the case is remanded, the District Attorney intends to “withdraw its
stipulation regarding appellant’s eligibility for relief under [Senate Bill] 1437 based on
new investigations.” The validity of the stipulation is not at issue in this appeal. We
express no opinion as to whether the trial court may or should allow the District Attorney
to withdraw his stipulation on remand.

                                               3
predicate felony offenses in section 189 that qualify for first degree felony murder.
(People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 278 (Gooden).)
       “Proposition 115 also ‘revised the scope of capital liability for aiding and abetting
felony murders’ by amending section 190.2 to indicate that for first degree felony murder
‘ “every person, not the actual killer, who, with reckless indifference to human life and as
a major participant” aids or abets the crime may be convicted of special circumstance
murder.’ [Citation.]” (Cruz, supra, 46 Cal.App.5th at p. 759.)


                                   C. Senate Bill 1437
       Senate Bill 1437, which became effective January 1, 2019, was enacted based on
the Legislature’s express finding that “[i]t 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.) It did so by amending
section 188, which defines malice aforethought, and section 189, which addresses felony-
murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.)
       Section 187, which was not amended by Senate Bill 1437, defines murder as “the
unlawful killing of a human being, or a fetus, with malice aforethought.” Section 188
defines “malice” “[f]or purposes of Section 187.” Section 188 provides that “malice may
be express or implied. [¶] (1) Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice is implied
when no considerable provocation appears or when the circumstances attending the
killing show an abandoned and malignant heart.” (§ 188, subd. (a)(1)-(2).) Senate Bill
1437 added subdivision (a)(3) to section 188, which now provides: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime


                                             4
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” In so doing, the Legislature stated in the
uncodified statutory findings and declarations that it intended that “[a] person’s
culpability for murder must be premised upon that person’s own actions and subjective
mens rea.” (Stats. 2018, ch. 1015, § 1.)
       Senate Bill 1437 also added section 189, subdivision (e), which provides that “[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 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 Section 190.2.”
       Finally, Senate Bill 1437 added section 1170.95, which allows “[a] person
convicted of felony murder or murder under the natural and probable consequences
theory” to petition the sentencing court to vacate the murder conviction. To do so, all of
the following conditions must apply: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences doctrine. [¶] (2)
The petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[, and] [¶] (3) The petitioner could not be convicted of
first or second degree murder because of [the] changes to [s]ection 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
       If the petitioner is found eligible for relief, the conviction is vacated and the
petitioner is resentenced “on any remaining counts in the same manner as if the petitioner


                                               5
had not . . . previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) If “murder was charged
generically, and the target offense was not charged,” then the petitioner’s murder
conviction must be “redesignated as the target offense or underlying felony for
resentencing purposes.” (§ 1170.95, subd. (e).)


                                        III. Discussion
                          A. Constitutionality of Senate Bill 1437
       “We review de novo questions of interpretation and constitutionality of a statute.”
(Finberg v. Manset (2014) 223 Cal.App.4th 529, 532.)
       The California Constitution prohibits the Legislature from amending or repealing a
voter initiative, unless the initiative so 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.”
[Citations.]’ ” (People v. Kelly (2010) 47 Cal.4th 1008, 1025.)
       Our high court has “described an amendment” to an initiative “as ‘a legislative act
designed to change an existing initiative statute by adding or taking from it some
particular provision.’ [Citation.]” (People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 571 (Pearson).) The court has cautioned, however, that not all legislation
concerning “the same subject matter as an initiative . . . is necessarily an amendment” to
the initiative. (Ibid.) Rather, “ ‘[t]he Legislature remains free to address a “ ‘related but
distinct area’ ” [citations] or a matter that an initiative measure “does not specifically
authorize or prohibit.” ’ ” (Ibid.) Thus, in deciding whether certain legislative action
amends a voter initiative, a reviewing court must “ask whether it prohibits what the
initiative authorizes, or authorizes what the initiative prohibits.” (Ibid.) “In resolving


                                                6
[this] question, we must decide what the voters contemplated” in passing the initiative.
(Ibid.) “ ‘[T]he voters should get what they enacted, not more and not less.’ [Citation.]”
(Ibid.)
          Resolving this question of what the voters contemplated requires statutory
interpretation. “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
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.)
                     1. Senate Bill 1437 Did Not Amend Proposition 7
          The District Attorney contends that Senate Bill 1437 unconstitutionally amended
Proposition 7 by “redefining what constitutes the crime of first or second degree
murder . . . in a manner that reduces the sentences for the conduct incorporated by
Proposition 7.”
          To determine whether Senate Bill 1437 amended Proposition 7, we first must look
at the plain language of Proposition 7 to determine what the voters contemplated in
passing the initiative. In this respect, the language is unambiguous—Proposition 7
repealed section 190 and sections 190.1 through 190.5 and enacted new versions of those
statutes. The changes made by Proposition 7 lengthened prison sentences and expanded
the circumstances in which the death penalty applies.4 Thus, in passing Proposition 7, we

4      The version of section 190 enacted by Proposition 7 read: “Every person guilty of
murder in the first degree shall suffer death, confinement in state prison for life without
possibility of parole, or confinement in the state prison for a term of 25 years to life . . . .

                                               7
presume the voters intended to lengthen prison sentences and expand the use of the death
penalty.
       The crucial question, then, it whether Senate Bill 1437 prohibited what
Proposition 7 authorized, or authorized what it prohibited. We conclude that it did not.
Put simply, Senate Bill 1437 addressed the scope of accomplice liability for murder,
limiting application of the felony-murder rule and the natural and probable consequences
doctrine. In so doing, it altered the elements of first and second degree murder, not the
attendant punishment. The Legislature was free to address the scope of accomplice
liability for murder—a related but distinct area of the law—so long as it did not prohibit
what Proposition 7 authorized, or authorize what the initiative prohibited. Senate Bill
1437 did not change the punishment provisions authorized by Proposition 7, and thus it
did not unconstitutionally amend Proposition 7.
       Notwithstanding the plain language of Proposition 7, the District Attorney argues
that the voters intended to incorporate and fix the definitions of first and second degree
murder, as they existed in 1978, into the initiative. The District Attorney points to
Proposition 7’s use of the phrases “ ‘murder in the first degree’ and ‘murder in the second
degree’ ” as indicative of an intent to incorporate those definitions into the initiative. In
so arguing, the District Attorney relies on a statutory construction principle articulated in
Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 (Palermo).
       “ ‘It is a well established principle of statutory law that, where a statute adopts by
specific reference the provisions of another statute, regulation, or ordinance, such
provisions are incorporated in the form in which they exist at the time of the reference


[¶] Every person guilty of murder in the second degree shall suffer confinement in the
state prison for a term of 15 years to life.” Proposition 7 also enacted new versions of
sections 190.1 through 190.5, which set forth the procedures for dealing with special
circumstance allegations and for determining the penalty after a true finding on a special
circumstance allegation.

                                               8
and not as subsequently modified . . . .’ ” (Palermo, supra, 32 Cal.2d at pp. 58-59.)
“ ‘[W]here 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 . . . .’ ” (Id. at p. 59.) “Moreover, where the words of
an incorporating statute do not make clear whether it contemplates only a time-specific
incorporation, ‘the determining factor will be . . . legislative intent . . . .’ ” (In re Jovan B.
(1993) 6 Cal.4th 801, 816.)
          In People v. Hernandez (2003) 30 Cal.4th 835 (Hernandez), disapproved on
another point by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32, the court
considered whether the phrase, “ ‘the punishment shall be that prescribed for murder in
the first degree,’ ” was intended “to fix the penalty permanently at the punishment for first
degree murder as it existed” when the statute was passed. (Hernandez, at pp. 864-865.)
Applying the Palermo rule, the court concluded that the Legislature did not intend to
permanently fix the punishment for first degree murder because the reference was
general, not specific. (Hernandez, at p. 865.) “Because [the statute] refers generally to
the punishment prescribed for murder in the first degree, it incorporates whatever
punishment the law prescribed for first degree murder” when the statute was violated.
(Ibid.)
          In this case, the District Attorney identifies Proposition 7’s references to “murder
in the first degree” and “murder in the second degree” as incorporating those definitions
into the initiative. This language, however, is nearly indistinguishable from the language
that the Hernandez court concluded did not incorporate the definition into the statute.
Applying the Palermo rule, we conclude that the references to “murder in the first
degree” and “murder in the second degree” were general and not specific. Thus, they did
not incorporate those definitions, as they existed in 1978, into Proposition 7. Because


                                                9
those definitions were not incorporated by reference into Proposition 7, Senate Bill 1437
did not unconstitutionally amend the initiative.
                  2. Senate Bill 1437 Did Not Amend Proposition 115
       The District Attorney argues that Senate Bill 1437 unconstitutionally amended
Proposition 115. He argues it did so by adding subdivision (e) to section 189, which he
contends had the effect of “requiring additional elements for a first degree felony murder
conviction not previously present for” the predicate felony crimes that were “added by
Proposition 115.”
       As with Proposition 7, we conclude that Senate Bill 1437 did not
unconstitutionally amend Proposition 115. Proposition 115 amended section 189 to add
five additional serious felonies (kidnapping, train wrecking, sodomy, oral copulation, and
sexual penetration) to the list of predicate felonies for first degree felony murder.5 Senate
Bill 1437, on the other hand, amended section 189 by adding subdivision (e), which
imposed a mens rea and actus reus requirement for accomplice liability for first degree
felony murder. While Senate Bill 1437 undoubtedly concerned the same subject matter
as Proposition 115—namely felony murder under section 189—the pertinent question is
whether Senate Bill 1437 prohibited what Proposition 115 authorized, or authorized what
the initiative prohibited. In this case, Senate Bill 1437 clearly did not add to or otherwise
modify the list of predicate felonies leading to felony murder liability. Rather, it
addressed accomplice liability for felony murder, a related but distinct area of the law
that the Legislature was undoubtedly free to address.

5       Proposition 115 amended section 189 to add the language that we set forth in
italics: “All murder which is perpetrated by means of a destructive device or explosive,
knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying
in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or
which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 286,
288, 288a, or 289, is murder of the first degree and all other kinds of murders are of the
second degree.”

                                             10
       The District Attorney also argues that Senate Bill 1437 contradicts the implied
intent of the voters who approved Proposition 115. The District Attorney notes that
Proposition 115 amended section 190.2 to extend death penalty eligibility to aiders and
abettors of first degree felony murder in specified circumstances. As amended by
Proposition 115, section 190.2 provides that “every person, not the actual killer, who,
with reckless indifference to human life and as a major participant” aids or abets the
felony murder may be subject to a capital murder special circumstance. (§190.2,
subd. (d).) The District Attorney observes that this language is “nearly identical” to the
language added to section 189, subdivision (e) by Senate Bill 1437. Thus, he argues that
“[t]he voters’ addition of the major participant/reckless indifference language to . . .
section 190.2, subdivision (d), without a similar reference in section 189, was
intentional,” and that by later amending section 189 to add the major participant/reckless
indifference requirement, the Legislature contravened the voters’ implied intent.
       In making this argument, the District Attorney relies on a maxim of statutory
construction, expressio unius est exclusio alterius—meaning, “the expression of one
thing in a statute ordinarily implies the exclusion of other things.” (In re J.W. (2002) 29
Cal.4th 200, 209.) His reliance on this maxim is misplaced. The principle is not applied
in isolation, without regard to “legislative history or other evidence of legislative intent,”
but rather must be considered with regard to “other indicia of legislative intent.” (Ibid.)
Indeed, courts should “not apply the expressio unius est exclusio alterius principle ‘if its
operation would contradict a discernable and contrary legislative intent.’ [Citations.]”
(Id. at pp. 209-210.)
       Here, the ballot materials reflect that the stated purpose of changing section 190.2
was to “improve [California’s] death penalty law and overturn decisions by Rose Bird
and her allies which made it nearly inoperative.” (Ballot Pamp., Primary Elec. (June 5,
1990) argument in favor of Prop. 115, p. 34; see People v. Banks (2015) 61 Cal.4th 788,


                                              11
798 (Banks).) Prior to Proposition 115, “state law made only those felony-murder aiders
and abettors who intended to kill eligible for a death sentence.” (Banks, at p. 798.)
“Proposition 115 revised the scope of capital liability for aiding and abetting felony
murders by” referencing federal law, from which the term “ ‘major participant’ ” was
borrowed. (Ibid.) Section 190.2 thus imposed “both a special actus reus requirement,
major participation in the crime, and a specific mens rea requirement, reckless
indifference to human life.” (Banks, at p. 798.) The clear intent of voters in amending
section 190.2 was to expand the scope of capital liability in certain felony-murder cases
to the extent permissible under federal law. There is no basis for, as the District Attorney
contends, concluding that the voters also intended that the same “major participant” and
“reckless indifference” language for accomplice liability could never be added to
section 189.
        3. Senate Bill 1437 Does Not Violate Separation of Powers Principles
       The District Attorney argues that Senate Bill 1437 violates separation of powers
principles by interfering with the executive’s prosecutorial functions and the finality of
judgment. As to prosecutorial functions, the District Attorney points to section 1170.95’s
provision requiring the sentencing court to “redesignate [the murder conviction] as the
target offense or underlying felony for resentencing purposes.” He contends that “[t]o
permit the judiciary to select from an array of possible crimes is not authorized” and thus
violative of the separation of powers doctrine.
       “[T]he powers of state government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of the others except as
permitted by [the state] Constitution.” (People v. Birks (1998) 19 Cal.4th 108, 134.)
“[T]he prosecution of crimes is recognized as an executive function, vesting in our state’s
prosecutors the discretion to control and determine whom to charge and what charges to
bring. [Citation.] Thus, under the separation of powers doctrine, our state’s courts must


                                             12
avoid interfering with the executive’s prosecutorial functions, including the exercise of its
broad charging discretion.” (People v. Solis (2015) 232 Cal.App.4th 1108, 1122.)
       Here, section 1170.95’s resentencing procedure does not interfere with the
executive’s prosecutorial functions. The plain language of section 1170.95,
subdivision (e) permits the trial court to redesignate the vacated conviction as either “the
target offense,” in cases involving the natural and probable consequences doctrine, or
“the underlying felony,” in cases involving the felony-murder rule. In both instances, a
prosecutor has already exercised his or her discretion to “control and determine whom to
charge and what charges to bring,” because the prosecutor necessarily identified the
target offense or predicate felony in the underlying prosecution. (People v. Prettyman
(1996) 14 Cal.4th 248, 254, 269 & fn. 9.) Thus, section 1170.95’s resentencing
procedure, by its own terms, is limited to offenses that the prosecutor already determined
should be presented to the fact finder, either as a predicate felony or as a target offense.
Because of this, section 1170.95 does not violate separation of powers principles with
regard to the executive’s prosecutorial functions.
       The District Attorney also argues that section 1170.95 interferes with the finality
of judgment. He principally relies on People v. Bunn (2002) 27 Cal.4th 1, 14 (Bunn), its
companion case People v. King (2002) 27 Cal.4th 29 (King), and Plaut v. Spendthrift
Farm, Inc. (1995) 514 U.S. 211 (Plaut), a case on which both Bunn and King relied. His
reliance on these cases is misplaced.
       “At issue in Bunn and King were statutory amendments reviving certain child
molestation prosecutions that had been dismissed as time-barred by the then existing
statute of limitations. [Citation.] The new law not only revived time-barred cases that
had never been prosecuted, it also applied to prosecutions that had been dismissed
pursuant to the previous limitations period.” (Perez v. Roe 1 (2006) 146 Cal.App.4th
171, 180 (Perez).) The issue as framed by the California Supreme Court was as follows:


                                              13
“[The Legislature] authorize[d] . . . the filing of a molestation charge even where an
accusatory pleading involving the same offense was previously dismissed as time-barred
by the courts. The question is whether, and to what extent, the separation of powers
clause of the California Constitution (art. III, § 3) precludes application of such a refiling
provision.” (Bunn, supra, 27 Cal.4th at p. 5.) Our high court held that such refiling
provisions “cannot be retroactively applied to subvert judgments that became final before
the provision took effect . . . .” (Id. at p. 24.) Thus, the rule in Bunn and King focused
solely on the Legislature’s ability to revive causes of action that had been dismissed as
time-barred by enacting a new limitations period. (Perez, at p. 177 [summarizing Bunn
and King]; People v. Lamoureux (2019) 42 Cal.App.5th 241, 260 [“[T]he matter at hand
was whether the People could rely on refiling legislation to reprosecute a defendant who
obtained a judgment of dismissal that became final prior to the effective date of the
refiling legislation.”] (Lamoureux).)
       “In Plaut, plaintiffs filed a fraud action in federal court based on alleged violations
of the federal securities laws. [Citation.] At the time, federal courts were required to
‘ “borrow[ ]” ’ the analogous state statute of limitations in the jurisdiction in which the
action was pending. [Citation.] However, after the plaintiffs filed their case, the United
States Supreme Court issued” a pair of decisions that “adopted a uniform federal
limitations rule shorter than the one on which the plaintiffs relied and applied the new
statute of limitations retroactively. [Citation.]” (Lamoureux, supra, 42 Cal.App.5th at
p. 257.) Based on those decisions, the district court dismissed the plaintiffs’ case as
untimely and the judgment became final. (Ibid.) Congress thereafter passed legislation
“repudiating the retroactive effect of the new limitations period” and restoring the prior
limitations period. (Ibid.) The legislation also provided for reinstatement of dismissed
actions. The plaintiffs sought reinstatement, but the district court dismissed the case on




                                              14
the grounds that the refiling provision violated the separation of powers doctrine. (Id. at
p. 258.)
       The United States Supreme Court affirmed the dismissal. The Plaut court found
the reinstatement legislation to be “a clear violation” of federal separation of powers
principles: “It is, of course, retroactive legislation, that is, legislation that prescribes what
the law was at an earlier time, when the act whose effect is controlled by the legislation
occurred . . . . When retroactive legislation requires its own application in a case already
finally adjudicated, it does no more and no less than ‘reverse a determination once made,
in a particular case.’ ” (Plaut, supra, 514 U.S. at p. 225, second italics added.) According
to the court, the retroactive legislation at issue upset “[t]he rules of finality, both statutory
and judge made,” which the court listed by way of example: “a dismissal on statute-of-
limitations grounds,” or “a dismissal for failure to state a claim, for failure to prove
substantive liability, or for failure to prosecute . . . .” (Id. at p. 228.)
       This case, unlike Bunn, King, and Plaut, does not involve legislative action to
revive causes of action that were previously dismissed, nor does it require its own
application in a case. Rather, section 1170.95 merely provides that petitioners whose
convictions were based on the felony-murder rule or the natural and probable
consequences doctrine “may” petition the trial court for sentencing relief. It does not
provide for automatic relief from any previously adjudicated murder conviction, and
grants sole power to the judiciary to determine whether such petitioners are entitled to
relief under the law. In addition, unlike Bunn, King, and Plaut, section 1170.95 is an
exercise of legislative lenity, rather than an attempt to reinstate causes of action that had
previously been dismissed. (Lamoureux, supra, 42 Cal.App.5th at pp. 258-261.) In
short, section 1170.95 represents an appropriate exercise of the Legislature’s power to
permit judicial revision of final judgments to reduce punishment for those convicted of




                                                15
murder offenses under the felony-murder rule or natural and probable consequences
doctrine.
       Such legislation is not uncommon. Indeed, it “appears settled that a final
judgment is not immune from the Legislature’s power to adjust prison sentences for a
legitimate public purpose.” (In re Chavez (2004) 114 Cal.App.4th 989, 1000; People v.
Community Release Bd. (1979) 96 Cal.App.3d 792, 800 [it is “settled that legislation
reducing punishment for crime may constitutionally be applied to prisoners whose
judgments have become final”]; see also Way v. Superior Court (1977) 74 Cal.App.3d
165, 177 [upholding retroactive application of reduced punishments under Uniform
Determinate Sentencing Act to final judgments].) “[T]here is substantial precedent for
remedial legislation authorizing the ameliorative reopening of final judgments of
conviction to benefit criminal defendants.” (Lamoureaux, supra, 42 Cal.App.5th at
pp. 262-263 [summarizing such legislation].) The prevalence of such legislation all but
“confirms there is nothing especially unique about section 1170.95,” as it represents “a
legitimate and ordinary exercise of legislative authority.” (Id. at p. 263.) Thus, we
conclude that section 1170.95 does not violate separation of powers principles.
       In summary, we find Senate Bill 1437 to be constitutional. Because the trial court
found that Senate Bill 1437 was unconstitutional, the court erred in rejecting appellant’s
section 1170.95 petition for resentencing of his murder convictions on that basis.


              B. Senate Bill 1437 Does Not Apply to Attempted Murder
       At issue here is whether Senate Bill 1437’s abrogation of the use of the natural and
probable consequences theory in murder prosecutions also applies to attempted murder.
The question of whether Senate Bill 1437 applies to the crime of attempted murder has
divided the Courts of Appeal. (People v. Munoz (2019) 39 Cal.App.5th 738, 753, review
granted Nov. 26, 2019, S258234 [does not apply]; People v. Lopez (2019) 38 Cal.App.5th


                                            16
1087, 1103, review granted Nov. 13, 2019, S258175 [does not apply]; People v. Dennis
(2020) 47 Cal.App.5th 838, 844-847 [does not apply]; People v. Larios (2019) 42
Cal.App.5th 956, 964-968, review granted Feb. 26, 2020, S259983 [does apply]; People
v. Medrano (2019) 42 Cal.App.5th 1001, 1013-1016, review granted March 11, 2020,
S259948 [does apply]; People v. Sanchez (2020) 46 Cal.App.5th 637, 642-644, review
granted June 10, 2020, S261768 [does apply].) As we explain, we conclude that Senate
Bill 1437 does not apply to attempted murder.
       “We exercise de novo review when we engage in statutory construction.” (People
v. Brackins (2019) 37 Cal.App.5th 56, 65.) “Statutory construction begins with the plain,
commonsense meaning of the words in the statute, ‘ “because it is generally the most
reliable indicator of legislative intent and purpose.” ’ [Citation.] ‘When the language of a
statute is clear, we need go no further.’ ” (People v. Manzo (2012) 53 Cal.4th 880, 885.)
Where the language of the statute is potentially ambiguous, “ ‘[i]t is appropriate to
consider evidence of the intent of the enacting body in addition to the words of the
measure, and to examine the history and background of the provision, in an attempt to
ascertain the most reasonable interpretation.’ [Citation.]” (Id. at p. 886.)
       Here, the language of Senate Bill 1437 is clear and unambiguous. Senate
Bill 1437 amended section 188, the definition of malice for purposes of first and second
degree murder, to provide: “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), italics added.) The second sentence, that “[m]alice shall not
be imputed to a person based solely on his or her participation in a crime,” is expressly
limited by the preceding language, which limits this new rule to murder convictions. It is
well established that “ ‘[a]n attempt is an offense “separate” and “distinct” from the
completed crime.’ ” (People v. Lewis (2006) 146 Cal.App.4th 294, 298.) A statute that


                                             17
“expressly identifies the offenses within its scope, all of which are completed offenses,”
is not ambiguous; “[h]ad the Legislature meant to include attempts among the covered
offenses, it could easily have done so as it has done in other instances.” (People v. Jillie
(1992) 8 Cal.App.4th 960, 963.)
       Further confirmation that Senate Bill 1437 does not apply to attempted murder is
found in section 1170.95, which was added by Senate Bill 1437 and sets forth the
resentencing procedure for persons who “could not be convicted of first or second degree
murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a), italics added.) By its plain terms, only persons “convicted of
felony murder or murder under a natural and probable consequences theory may file a
petition . . . .” (Ibid., italics added.) Further, the statute allows the petitioner to seek only
to “have [his or her] murder conviction vacated and to be resentenced on any remaining
counts . . . .” (Ibid., italics added.) Similarly, subdivision (d)(1) of section 1170.95
permits the trial court to conduct a hearing “to determine whether to vacate the murder
conviction,” (italics added), while subdivision (d)(2) permits the parties to “stipulate that
the petitioner is eligible to have his or her murder conviction vacated . . . .” (Italics
added.) The repeated references to murder convictions in section 1170.95, as opposed to
attempted murder convictions, make clear that Senate Bill 1437’s ameliorative benefit
was meant to reach only the completed offense of murder, not the distinct offense of
attempted murder.
       As the plain language of the statute is clear, we need not look at the legislative
history. But even if we did proceed to inquire further, the legislative history of Senate
Bill 1437 confirms that the statute was not intended to reach attempted murder. In the
uncodified findings and declarations, the Legislature stated, in relevant part, that “[i]t 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


                                               18
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.”
(Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 1, italics added.) In discussing the
potential number of persons who may petition for relief, the Senate Committee on
Appropriations indicated that it would be difficult to determine the basis for a murder
conviction, “[a]s the abstract of judgment reflects only the degree of conviction for
murder . . . .” (Sen. Com. on Appropriations, May 14, 2018 Report on Sen. Bill No. 1437
(2017-2018 Reg. Sess.), as introduced February 16, 2018, p. 3, italics added.) The report
went on to describe the “overall population in state prison for a murder conviction,” and
did so by tallying up “inmates [who] were serving a term for the princip[al] offense of
first-degree murder” and “second-degree murder.” (Ibid., italics added.)
       An amendment to Senate Bill 1437 that was made during the legislative process
further makes clear that the law was intended to apply only to those convicted of murder.
As originally introduced, Senate Bill 1437 stated that “[a] defendant may submit a
request for resentencing when all of the following conditions apply,” and then listed the
three necessary conditions that were later codified in section 1170.95. (Sen. Bill
No. 1437 (2017-2018 Reg. Sess.), as introduced on February 16, 2018.) The bill was
later amended to replace the phrase beginning with “a defendant” with the phrase instead
beginning with “a person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” when the three necessary conditions were met. (Sen. Bill. No.
1437 (2017-2018 Reg. Sess.), as amended on August 20, 2018, § 4, italics added.) This
amended language, expressly referring to “murder” convictions, is what was ultimately
enacted. In addition, the original version of Senate Bill 1437 did not include the
prefatory language now included in section 188, subdivision (a)(3), that “in order to be


                                              19
convicted of murder, a principal in a crime shall act with malice aforethought.” (Sen. Bill
No. 1437 (2017-2018 Reg. Sess.), as introduced on February 16, 2018, § 1.) This
language was added by amendment. This change too confirms that the prohibition on the
imputation of malice was meant to reach only the completed offense of murder.
       Appellant argues that “not applying [Senate Bill] 1437 to attempted murder would
lead to absurd results.” We disagree. While the literal meaning of the words in a statute
“ ‘ “ ‘ “may be disregarded to avoid absurd results,” ’ ” ’ ” courts should do so only “ ‘in
“ ‘extreme cases . . . .’ ” ’ [Citation.]” (People v. Morales (2019) 33 Cal.App.5th 800,
806.) “To justify departing from a literal reading of a clearly worded statute, the results
produced must be so unreasonable that the Legislature could not have intended them.”
(In re. D.B. (2014) 58 Cal.4th 941, 948.) Such is not the case here. In deciding to omit
attempted murder from the ambit of Senate Bill 1437, the Legislature could have
reasonably concluded that the need to address sentencing reform was more appropriately
directed at persons convicted of murder as opposed to attempted murder. This is so
because the punishment for attempted murder is generally far less than the punishment
imposed for murder.
       The punishment for first degree murder is either death, life in prison without the
possibility of parole, or an indeterminate term of 25 years to life. (§ 190, subds. (a), (e).)
The punishment for second degree murder is an indeterminate term of 15 years to life.
(§ 190, subds. (a), (e).) In contrast, attempted murder is punishable by a determinate term
of five, seven, or nine years in prison. (§ 664, subd. (a).) And even premeditated
attempted murder is punishable only by a sentence of life with the possibility of parole
after seven years. (§§ 664, subd. (a), 3046, subd. (a)(1).)
       Because the punishment for murder is so much more severe than the punishment
for attempted murder, the Legislature may have wished to limit Senate Bill 1437’s
ameliorative reforms to those instances where it perceived the disconnect between


                                               20
culpability and punishment to be most glaring. It is not our place to judge the wisdom,
fairness, or logic of the Legislature’s decision to omit attempted murder from Senate Bill
1437’s ambit. We do not find the plain meaning of Senate Bill 1437 to be absurd, much
less so absurd in its results that we would be permitted to disregard the literal language
used in the statute.


                                      IV. Disposition
       The superior court’s order is reversed, and the matter is remanded with directions
to consider appellant’s section 1170.95 petition as to his murder convictions.




                                             21
                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




People v. Alaybue
H047221


                                 22
Trial Court:                              Santa Clara County Superior Court


Trial Judge:                              Honorable Griffin M.J. Bonini


Attorney for Defendant and Appellant:     Michael C. Sampson
                                          Under Appointment by the Sixth District
                                          Appellate Program


Attorneys for Plaintiff and Respondent:   Xavier Becerra
                                          Attorney General of California

                                          Lance E. Winters
                                          Chief Assistant Attorney General

                                          Jeffrey M. Laurence
                                          Senior Assistant Attorney General

                                          Eric D. Share
                                          Supervising Deputy Attorney General

                                          Leif M. Dautch
                                          Deputy Attorney General


Attorneys for Amicus Curiae:              Jeffrey F. Rosen
                                          District Attorney, County of Santa Clara

                                          David R. Boyd
                                          Deputy District Attorney




People v. Alaybue
H047221
