Filed 4/27/20
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                             DIVISION SIX


THE PEOPLE,                                2d Crim. No. B299688
                                        (Super. Ct. No. 2008046598)
     Plaintiff and Respondent,               (Ventura County)

v.

MARIA LISSETTE URENA
BUCIO,

     Defendant and Appellant.


                Maria Lissette Urena Bucio appeals an order
dismissing her petition for resentencing pursuant to Penal Code1
section 1170.95. Bucio contends the trial court erred when it
found Senate Bill No. 1437 (SB 1437) unconstitutional. We agree
and reverse.
           FACTUAL AND PROCEDURAL HISTORY
             Bucio aided and abetted her nephew in a robbery
which resulted in the death of a person. The jury found her
guilty of robbery and first degree murder, and found true the
allegation that the murder occurred during the course of the

        1 Further   unspecified statutory references are to the Penal
Code.
robbery. (§§ 211, 187, 190.2, subd. (a)(17)(A).) The jury found not
true the allegation that Bucio aided and abetted the robbery with
reckless indifference to human life. (§ 190.2, subd. (d).) The trial
court sentenced her to 25 years to life on the murder conviction
and stayed the five-year sentence on the robbery conviction
pursuant to section 654. We affirmed the judgment in an
unpublished decision. (People v. Bucio (Apr. 25, 2013, B232504)
[nonpub. opn.].)
             Following enactment of SB 1437 in 2018, Bucio filed
a petition for resentencing pursuant to section 1170.95. She
declared she was convicted of first degree murder “pursuant to
the felony murder rule or the natural and probable consequences
doctrine” and “could not now be convicted because of the changes
to [section] 189” because she was “not the actual killer”; “did not,
with the intent to kill, aid, abet, . . . or assist the actual killer”;
and “was not a major participant in the felony or . . . did not act
with reckless indifference to human life.” The prosecution filed a
motion to dismiss the petition on the ground that SB 1437 is
unconstitutional.
             The trial court found that “SB 1437 is
unconstitutional in that it conflicts with . . . Propositions 7 and
115, and improperly invades the province of the executive branch
by effectively granting pardons to defendants who have been
convicted and sentenced for felony-murder.”
             After the trial court’s ruling, our colleagues in the
Fourth Appellate District upheld the constitutionality of SB 1437
in two companion cases: People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270 (Gooden) and People v. Lamoureux
(2019) 42 Cal.App.5th 241 (Lamoureux). We also conclude that
SB 1437 is constitutional.




                                  2
                            DISCUSSION
             The Legislature enacted SB 1437 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, subd. (f).) In so doing, the
Legislature sought to “limit convictions and subsequent
sentencing so that the law of California fairly addresses the
culpability of the individual and assists in the reduction of prison
overcrowding, which partially results from lengthy sentences that
are not commensurate with the culpability of the individual.”
(Stats. 2018, ch. 1015, § 1, subd. (e).)
             SB 1437 amended section 188, which defines malice.
Now, to be convicted of murder, a principal must act with malice
aforethought. Malice can no longer “be imputed to a person
based solely on [their] participation in a crime.” (§ 188, subd.
(a)(3).) SB 1437 also amended section 189 to restrict the
application of the felony-murder rule and the natural and
probable consequences doctrine. Now, to be convicted of felony
murder, the participant in a specified felony must be: (1) the
actual killer, (2) one who acted with the intent to aid, abet,
counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree, or (3) a
major participant in the underlying felony who acted with
reckless indifference to human life. (§ 189, subd. (e).) SB 1437
also added section 1170.95, which permits those convicted of
felony murder or murder under the natural and probable
consequences doctrine to file a petition with the sentencing court




                                 3
to vacate the murder conviction and resentence on any remaining
counts. (§ 1170.95, subd. (a).)
             If the petitioner is found eligible for relief, the
murder conviction must be vacated and the petitioner must be
resentenced “on any remaining counts in the same manner as if
the petitioner had not been previously . . . sentenced, provided
that the new sentence, if any, is not greater than the initial
sentence.” (§ 1170.95, subd. (d)(1).)
             Here, it is undisputed that Bucio is eligible for relief
if SB 1437 is constitutional. The Ventura County District
Attorney (District Attorney) contends SB 1437 is unconstitutional
because it (1) amends Propositions 7 and 115, (2) violates
separation of powers, and (3) amends the Victim Bill of Rights
Act of 2008 (Marsy’s Law). Whether legislative enactments are
constitutional presents a question of law which we review de
novo. (Vergara v. State of California (2016) 246 Cal.App.4th 619,
642.) Like our colleagues in the Fourth Appellate District, we
conclude that SB 1437 is constitutional.
                Proposition 7 and Proposition 115
             The Legislature may amend or repeal a statute
enacted by voter initiative only with the approval of the
electorate, unless the initiative statute provides otherwise. (Cal.
Const., art. II, § 10, subd. (c).) To determine whether legislation
amends a voter initiative, we must decide whether legislation
“prohibits what the initiative authorizes, or authorizes what the
initiative prohibits.” (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 571 (Pearson); see also Gooden, supra, 42
Cal.App.5th at pp. 279-280.) “But this 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




                                 4
amendment . . . . ‘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.]” (Pearson, at p. 571, original italics.)
             The District Attorney contends SB 1437
unconstitutionally amends Proposition 7 without the electorate’s
approval. Proposition 7, also known as the Briggs Initiative, was
adopted by voters in 1978. It amended section 190 to increase
the punishment for first degree murder from a term of life
imprisonment with parole eligibility after seven years to a term
of 25 years to life, and it increased the punishment for second
degree murder from a term of five, six, or seven years to a term of
15 years to life. (Prop. 7, as approved by voters, Gen. Elec. (Nov.
7, 1978), §§ 1-2.) The initiative also expanded the special
circumstances in which a person would be eligible for the death
penalty or life without parole. (Id. at §§ 6-7.)
             The District Attorney argues SB 1437
unconstitutionally amends Proposition 7 by changing the penalty
for murder through indirect means, i.e., by reclassifying murders
as lesser crimes. By doing so, the argument goes, the Legislature
is attempting to do indirectly that which it cannot do directly. (In
re Oluwa (1989) 207 Cal.App.3d 439, 446.) We are not persuaded
by this argument.
             Whether SB 1437 amends Proposition 7 is a question
of statutory interpretation. (Pearson, supra, 48 Cal.4th at p.
571.) We must “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




                                 5
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 voter’s intent and understanding of a ballot
measure.” (Ibid.)
              In Pearson, supra, 48 Cal.4th at page 573, our
Supreme Court considered whether section 1054.9, which
provided for postconviction discovery in writ of habeas corpus
proceedings, constituted an amendment of Proposition 115, which
provided that “[n]o order requiring discovery shall be made in
criminal cases” (§ 1054.5, subd. (a), italics added). The court
interpreted the language of Proposition 115, including the phrase
“criminal cases,” to apply to criminal trial proceedings, and not
habeas corpus proceedings. (Pearson, at pp. 571-572.) The court
observed that a “habeas corpus matter has long been considered a
separate matter from the criminal case itself,” and it noted
several distinctions between the purpose of discovery in a
criminal trial and in a habeas corpus proceeding. (Id. at p. 572.)
Section 1054.9 was not an amendment because it addressed “an
area that is related to Proposition 115’s discovery provisions but,
crucially, it is also a distinct area.” (Id. at p. 573.)
              In People v. Cooper (2002) 27 Cal.4th 38 (Cooper), our
Supreme Court considered whether section 2933.1, subdivision (c)
amended Proposition 7. As enacted by the voters, Proposition 7
provided for conduct credits that would reduce a sentence
pursuant to article 2.5 of the Penal Code. (Cooper, at p. 45.)
Section 2933.1, subdivision (c), subsequently enacted by the
Legislature, limited the presentence conduct credits for felons
convicted of murder. The Cooper defendant argued that section
2933.1 was an “invalid modification” of Proposition 7 because it




                                 6
limited his presentence conduct credits. (Cooper, at p. 41.) The
court disagreed. Article 2.5 of the Penal Code only cited to
provisions that authorized awards of postsentence conduct credits;
it did not cite to provisions limiting presentence conduct credits.
(Cooper, at p. 46.) Accordingly, legislative modification of
presentence credits was “not an invalid modification of
[Proposition 7].” (Id. at p. 47.)
               As relevant here, the language of Proposition 7 deals
with the penalties for murder, mandating increased minimum
terms of incarceration for murders. In contrast, SB 1437 deals
with the related but “distinct” subject matter of the elements of
murder. (Gooden, supra, 42 Cal.App.5th at p. 281; Pearson,
supra, 48 Cal.4th at p. 573.) In particular, it is designed to
reserve the harshest penalties for persons with the greatest
culpability. Thus, it draws a distinction between those who act
with intent to kill (or as a “major participant” in a felony or with
“reckless indifference to human life”) and those who do not.
Moreover, SB 1437 “did not prohibit what Proposition 7
authorizes by, for example, prohibiting a punishment of 25 years
to life for first degree murder or 15 years to life for second degree
murder. Nor did it authorize what Proposition 7 prohibits by, for
instance, permitting a punishment of less than 25 years for first
degree murder or less than 15 years for second degree murder.
In short [SB 1437], did not address punishment at all. Instead, it
amended the mental state requirements for murder.” (Gooden, at
p. 282.)
               The District Attorney relies on People v. Kelly (2010)
47 Cal.4th 1008, 1012 (Kelly), in which our Supreme Court
considered whether Health and Safety Code section 11362.77 of
the Medical Marijuana Program unlawfully amended the voter-




                                 7
enacted Compassionate Use Act of 1996 (CUA; Proposition 215).
The CUA provided an affirmative defense for possession and
cultivation of marijuana for personal medical purposes. It did not
specify the amount of marijuana that a patient or caregiver may
possess or cultivate. (Kelly, at p. 1013.) The Legislature
subsequently enacted Health and Safety Code section 11362.77 to
resolve the resulting uncertainty by defining the specific
quantities of marijuana that a “‘qualified patient’” or primary
caregiver may possess or cultivate. (Kelly, at p. 1014.)
             The court held that Health and Safety Code section
11362.77 was unconstitutional as applied to CUA because it
“burdens a defense” by imposing specific quantity limitations
where none had existed before. (Kelly, supra, 47 Cal.4th at p.
1024.) By imposing these limitations upon “‘qualified patients’”
and caregivers, Health and Safety Code section 11362.77
unlawfully amended the CUA, under which “these individuals
are not subject to any specific limits” and “may possess an
amount of medical marijuana reasonably necessary” for medical
purposes. (Kelly, at p. 1043.) Thus, the limitations “effectuate[d]
a change in the CUA that takes away from the rights granted by
the initiative statute.” (Ibid.; see also Cooper, supra, 27 Cal.4th
at p. 44 [an amendment includes a legislative act that takes away
from an existing initiative].)
             It is significant that our Supreme Court held that
notwithstanding the invalidity of Health and Safety Code section
11362.77 insofar as it burdened a defense under the CUA, the
statute should not be voided in its entirety. (Kelly, supra, 47
Cal.4th at p. 1047.) A “fundamental proposition” in resolving a
legal claim, said the court, is to “speak as narrowly as possible
and resort to invalidation of a statute only if doing so is




                                8
necessary.” (Ibid.) In particular, courts should presume in favor
of the constitutionality of legislation, and “‘the invalidity of the
legislation must be clear before it can be declared
unconstitutional.’” (Ibid.; see Dittus v. Cranston (1959) 53 Cal.2d
284, 286.)
             Unlike Kelly, SB 1437 does not “take away” from
Proposition 7’s provisions that establish minimum punishments
for first degree and second degree murder. (Kelly, supra, 47
Cal.4th at p. 1043.) The punishment for murder remains the
same. Penalties and elements of a crime are different.
Furthermore, it is not clear that SB 1437 is invalid. We must
therefore presume its constitutionality. (Id. at p. 1047.)
             Acknowledging the distinction between penalties and
elements of a crime, the District Attorney argues that when the
Legislature enacted Proposition 7, the voters intended to “freeze”
the definition of murder as it existed at that time, thereby
prohibiting subsequent legislative enactments modifying the
elements of murder. We are not persuaded.
             “‘“[W]here a statute adopts by specific reference the
provisions of another statute . . . such provisions are incorporated
in the form in which they exist at the time of the reference and
not as subsequently modified . . . . [Citations.] [¶] . . . [¶] . . . [but]
where the reference is general instead of specific, . . . 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 . . . as they may be subjected to elimination
altogether by repeal. [Citations.]”’ [Citation.]” (Cooper, supra,
27 Cal.4th at p. 44.)
             Here, Proposition 7’s lack of specific reference to the
elements of murder shows the voters did not intend to “freeze”




                                     9
the definition of murder as it existed when Proposition 7 was
enacted. (Gooden, supra, 42 Cal.App.5th at p. 283.) Proposition
7 did not identify Penal Code provisions defining the offense of
murder; instead, it pertained only to the punishment for murder.
(Gooden, at p. 283.) If the drafters had intended to preclude
future revisions to the elements of murder, Proposition 7 could
have done so by referring to section 187, which defines murder.
(Compare Gooden, at p. 283 with In re Oluwa, supra, 207
Cal.App.3d at pp. 445-446 [statute adopted another provision by
“specific reference” such that the other provision is incorporated
in the form in which it existed at the time of the reference].) But
there is nothing in Proposition 7 that limits the rights of the
Legislature to define crimes, including the various degrees of a
crime, based on current considerations of culpability. (Gooden, at
p. 283.) Just as societal norms have evolved so that, for example,
fatalities caused by drunk drivers can, under some
circumstances, be defined as second degree murder (rather than
manslaughter) (see People v. Watson (1981) 30 Cal.3d 290, 297-
298), so too can evolving societal norms be relied upon to
distinguish between different levels of culpability arising out of
intentional and unintentional homicides.
              The District Attorney also contends SB 1437
unconstitutionally amended Proposition 115 without a two-thirds
majority (as required by Proposition 115). We again disagree.
              As relevant here, Proposition 115 amended section
189 to add select crimes to the list of predicate offenses for first
degree felony-murder liability. (Prop. 115, as approved by voters,
Prim. Elec. (June 5, 1990), § 9.) It did not otherwise modify the
definition, or the elements, of murder.




                                10
              SB 1437 did not amend Proposition 115. (Gooden,
supra, 42 Cal.App.5th at p. 280; Lamoureux, supra, 42
Cal.App.5th at p. 251) SB 1437 did not address “a matter that
[Proposition 115] specifically authorizes or prohibits.” (Gooden,
at p. 287.) In particular, SB 1437 did not augment or restrict the
list of predicate felonies on which felony murder may be based.
Rather, it amended the mental state necessary for murder, which
is “a distinct topic not addressed by Proposition 115’s text or
ballot materials.” (Ibid.)
              The District Attorney also argues Proposition 115
reenacted all of section 189 pursuant to article IV, section 9 of the
California Constitution, including the portions that were not
expressly modified by the proposition. It asserts that when
section 189 was reenacted, the Legislature was thereafter
precluded from amending the definitions of murder without a
two-thirds majority. But the definition of murder was not
modified in, or integral to, Proposition 115. Like Proposition 7,
Proposition 115 does not include a specific reference to the
definition of murder. (Gooden, supra, 42 Cal.App.5th at p. 283.)
              Moreover, when technical reenactments are required,
but involve “no substantive change” in the affected statutory
provision, the Legislature “retains the power to amend the
restated provision through the ordinary legislative process.”
(County of San Diego v. Commission on State Mandates (2018)
6 Cal.5th 196, 214.) Here, neither the language of Proposition
115 nor its ballot materials indicate the voters’ intent to address
any provision of section 189 other than the list of predicate
felonies for the felony-murder rule. Therefore, Proposition 115
“does not preclude the Legislature from amending provisions of
the reenacted statute that were subject to technical restatement




                                 11
to ensure compliance with article IV, section 9 of the California
Constitution.” (Gooden, supra, 42 Cal.App.5th at p. 288.)
                              Marsy’s Law
              The District Attorney next contends section 1170.95
conflicts with Marsy’s Law’s intent to expand and protect victims’
rights. (Cal. Const., art. I, § 28, subd. (a)(6).) This contention
lacks merit.
              Article I, section 28, subdivision (a)(6) of the
California Constitution, provides that “[v]ictims of crime are
entitled to finality in their criminal cases. Lengthy appeals and
other [postjudgment] proceedings that challenge criminal
convictions . . . and the ongoing threat that the sentences of
criminal wrongdoers will be reduced, prolong the suffering of
crime victims for many years after the crimes themselves have
been perpetrated. This prolonged suffering . . . must come to an
end.”
              The District Attorney argues that section 1170.95
violates a victim’s right to finality and the right to “Truth in
Sentencing,” which provides that the sentence served will comply
with the sentencing order, and “shall not be substantially
diminished by early release policies.” (Cal. Const., art. I, § 28,
subd. (f)(5).) But Marsy’s Law “did not foreclose [postjudgment]
proceedings altogether. On the contrary, it expressly
contemplated the availability of such postjudgment proceedings,
including in [article I,] section 28, subdivision (b)(7) of the
[California] Constitution, which affords victims a right to
reasonable notice of ‘parole [and] other [postconviction] release
proceedings,’ and in subdivision (b)(8), which grants victims a
right to be heard at ‘post-conviction release decision[s] . . . .’”
(Lamoureux, supra, 42 Cal.App.5th at pp. 264-265.) Nothing in




                                12
Marsy’s Law restricts the Legislature from creating new
postconviction procedures, such as section 1170.95. (See Santos
v. Brown (2015) 238 Cal.App.4th 398, 404.)
             The District Attorney also argues that section
1170.95 violates a victim’s right to have the safety of the victims,
the victim’s family, and the general public considered before any
postjudgment release decision is made. (Cal. Const., art. I, § 28,
subd. (b).) We disagree. If a court rules that a petitioner is
entitled to relief under section 1170.95, it must then resentence
the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).)
Upon resentencing, the court may weigh the same sentencing
factors it considers when initially sentencing a defendant,
including whether the defendant presents “‘a serious danger to
society’ and ‘[a]ny other factors [that] reasonably relate to the
defendant or the circumstances under which the crime was
committed.’ [Citation.]” (Lamoureux, supra, 42 Cal.App.5th at p.
266; see Cal. Rules of Court, rule 4.421(b)(1), (c).) The trial
court’s ability to consider these factors “ensures the safety of the
victim, the victim’s family, and the general public are
‘considered,’ as required by Marsy’s Law.” (Ibid.)
                       Separation of Powers
             Lastly, the District Attorney contends section
1170.95 violates the separation of powers doctrine by infringing
upon (1) the governor’s exclusive power of clemency and (2) the
judiciary’s power to resolve specific controversies. We reject both
contentions.
             First, section 1170.95 does not infringe upon the
governor’s commutation power. (Lamoureux, supra, 42
Cal.App.5th at p. 256.) Although section 1170.95 “can produce
outcomes resembling the consequences of an executive




                                13
commutation . . . [¶] . . . the objective of the Legislature in
approving section 1170.95 . . . was not to extend ‘an act of grace’
to petitioners.” (Id. at p. 255.) Rather, the purpose of SB 1437
was, first, to ensure that California fairly addresses the
culpability of the individual, and second, to assist in the
reduction of prison overcrowding. (Id. at p. 256; see also Younger
v. Superior Court (1978) 21 Cal.3d 102, 117-118; Way v. Superior
Court (1977) 74 Cal.App.3d 165, 176-177 [application of the
determinate sentencing law would not usurp the governor’s
clemency power, even though it would incidentally have the effect
of commutation in certain instances].)
              Moreover, granting a section 1170.95 petition is “not
merely an act of grace akin to an exercise of executive clemency.”
(Lamoureux, supra, 42 Cal.App.5th at p. 256.) The successful
petitioner will have their “murder conviction vacated and . . . be
resentenced on any remaining counts.” (§ 1170.95, subd. (a).)
“Thus, while some qualifying petitioners certainly may obtain
reduced prison sentences under section 1170.95, there is no
guarantee of such an outcome.” (Lamoureux, at p. 256.)
              Second, section 1170.95 does not infringe upon the
judiciary’s power to resolve specific controversies. (Lamoureux,
supra, 42 Cal.App.5th at p. 261.) The District Attorney argues
the Legislature may not reopen a judgment of conviction once the
case has become final. But where legislation reopening a final
judgment of conviction is no “risk to individual liberty interests”
and provides “potentially ameliorative benefits to the only
individuals whose individual liberty interests are at stake in a
criminal prosecution,” such legislation is permissible. (Ibid.
[citing to several cases recognizing that reopening of final
judgments do not violate the separation of powers]; compare ibid.




                                14
with People v. Bunn (2002) 27 Cal.4th 1 and People v. King (2002)
27 Cal.4th 29 [where legislation authorized the refiling of charges
against a previously acquitted defendant].) In fact, there are
several examples of remedial legislation authorizing the
“ameliorative” reopening of final judgments of conviction, such as
Propositions 36 and 47. (Prop. 36, as approved by voters, Gen.
Elec. (Nov. 6, 2012), Prop. 47, as approved by voters, Gen. Elec.
(Nov. 4, 2014).) The “prevalence of such legislation . . . confirms
there is nothing especially unique about section 1170.95, which
appears . . . to constitute a legitimate and ordinary exercise of
legislative authority.” (Lamoureux, at p. 263.)
                           DISPOSITION
              The order dismissing the petition for resentencing is
reversed, and the matter is remanded to the trial court with
directions to grant the petition and resentence Bucio on the
remaining counts. (§ 1170.95, subd. (e).)
              CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:



             GILBERT, P. J.



             PERREN, J.




                                15
                    Kevin G. DeNoce, Judge

               Superior Court County of Ventura

                ______________________________

            Jennifer Hansen, 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 Amici Curiae
on behalf of Defendant and Appellant.

           Gregory D. Totten, District Attorney, Lisa O.
Lyytikainen, Senior Deputy District Attorney, for Plaintiff and
Respondent.
