Filed 8/19/20 P. v. Jackson CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B301919
                                                          (Super. Ct. No. CR34092)
     Plaintiff and Respondent,                                (Ventura County)

v.

FREDERICK LEE JACKSON,

     Defendant and Appellant.



       Frederick Lee Jackson appeals from an order denying his
petition to vacate his first degree murder conviction and obtain
resentencing under Senate Bill No. 1437 (S.B. 1437), which went
into effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.)
S.B. 1437 amended the felony-murder rule and the natural and
probable consequences doctrine insofar as it applies to murder. It
also added section 1170.95 to the Penal Code.1 If a defendant has
previously been convicted of murder under the felony-murder
rule or the natural and probable consequences doctrine and

         1   All further statutory references are to the Penal Code.
qualifies for relief under section 1170.95, the statute permits the
defendant to petition to vacate the conviction and obtain
resentencing on any remaining counts.
       Section 1170.95, subdivision (c) provides, “If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” The trial court
issued an order to show cause and conducted a hearing on the
petition. The court ruled that, insofar as S.B. 1437 modified the
felony-murder rule (§ 189), it unconstitutionally amended
Proposition 115 because the Assembly had not passed it by a two-
thirds margin. Therefore, without deciding whether appellant is
entitled to relief under section 1170.95, the trial court denied his
petition.
       We conclude that S.B. 1437 passes constitutional muster.
We reverse and remand the matter for further proceedings in
accordance with section 1170.95.
                                 Facts
       Since the trial court’s ruling and the arguments in the
briefs are limited to the constitutionality of S.B. 1437, we omit a
statement of facts underlying the murder conviction. A brief
recitation of the facts appears at pages 2-4 of our nonpublished
opinion affirming the 2005 judgment of conviction. (People v.
Jackson (Mar. 18, 2008, B186302).)
                         Procedural History
       In 2005 appellant was convicted by a jury of first degree
murder after a retrial on that charge. In the original trial in
1995, he had been convicted of first degree murder and rape. In
2004 the Ninth Circuit Court of Appeals vacated the murder
conviction. At the retrial of the murder charge, the jury found
true an allegation that a principal in the commission of the




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murder had been armed with a firearm. Appellant was
sentenced to prison for 26 years to life.
       In January 2019 appellant filed a petition for relief
pursuant to section 1170.95. Appellant alleged, “I was convicted
of 1st degree felony murder and I could not now be convicted
because of changes to Penal Code § 189, effective January 1,
2019 . . . .”2
                               S.B. 1437
       “Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state. [Citation.] . . . [¶] Independent of the felony-
murder rule, the natural and probable consequences doctrine
rendered a defendant liable for murder if he or she aided and
abetted the commission of a criminal act (a target offense), and a
principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable
consequence of the target offense. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248 (Lamoureux).)
       In S.B. 1437 the legislature stated, “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

      2 We do not consider whether appellant was in fact
convicted of felony murder. This issue is not before us. The trial
court noted that, at the original trial in 1995, appellant was
acquitted of kidnapping the victim. At the retrial in 2005, “[t]he
jury found not true a special circumstances allegation that the
murder had been committed during the commission of rape.”
(People v. Jackson, supra, [nonpub. opn.] at p. 1.)


                                 3
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).)
To achieve this goal, S.B. 1437 amended section 189, insofar as it
pertains to the felony-murder rule, to add subdivision (e), which
provides: “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.” (Stats. 2018, ch. 1015, § 3,
subd. (e).) S.B. 1437 also amended section 188, which defines
“malice,” to provide, “Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3); see Stats. 2018, ch. 1015, § 2.)
       Section 1170.95, added by S.B. 1437, provides in
subdivision (a), “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” certain conditions apply. One of the
conditions is that “[t]he petitioner could not be convicted of first
or second degree murder because of changes to Section 188 or 189
made [by S.B. 1437] effective January 1, 2019.”




                                  4
             We Agree with Appellate Courts that Have
             Upheld the Constitutionality of S.B. 1437
      The People argue, “S.B. 1437 is plagued by constitutional
infirmity.” They claim that it (1) unconstitutionally amends both
Proposition 115 and Proposition 7, (2) “violates the separation of
powers [doctrine] by infringing upon the function of the judiciary
and the governor’s exclusive power of clemency [capitalization
omitted],” and (3) conflicts with victims’ rights established by
Proposition 9, “the Victims’ Bill of Rights Act of 2008, also known
as Marsy’s law.”
      In November 2019, after the trial court’s ruling that S.B.
1437 is unconstitutional, the Fourth District, Division One, of the
Court of Appeal upheld the constitutionality of S.B. 1437 in two
cases: Lamoureux, supra, 42 Cal.App.5th 241, and People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden).3 In
March 2020 the Fourth District, Division Three, upheld its
constitutionality in two cases: People v. Cruz (2020) 46
Cal.App.5th 740, and People v. Solis (2020) 46 Cal.App.5th 762.
Finally, in April 2020 this court upheld its constitutionality in
People v. Bucio (2020) 48 Cal.App.5th 300. There is no published
appellate court opinion concluding that S.B. 1437 is
unconstitutional.
      In the five published opinions listed above, the appellate
courts considered and rejected the same arguments made by the
People in the present case. We disagree with the People’s claim
that these “opinions are wrongly decided.” For the reasons



      3On February 19, 2020, the California Supreme Court
denied review in both cases.



                                 5
explained in these opinions, we reject the People’s arguments
that S.B. 1437 is unconstitutional.
       We add an additional comment as to the People’s claim that
S.B. 1437 violates “the right to truth in sentencing which
provides that criminal sentences ‘shall not be substantially
diminished by early release policies intended to alleviate
overcrowding in custodial facilities.’ (Cal. Const., art. I, § 28,
subd. (f), par. (5).)” S.B. 1437 is not an “early release polic[y].” It
is a penal reform measure designed “to more equitably sentence
offenders in accordance with their involvement in homicides.”
(Stats. 2018, ch. 1015, § 1, subd. (b).) The legislature wanted to
avoid “lengthy sentences that are not commensurate with the
culpability of the individual.” (Id., § 1, subd. (e).)
       Accordingly, the trial court erroneously denied appellant’s
section 1170.95 petition on constitutional grounds.
                              Disposition
       The order denying appellant’s section 1170.95 petition on
constitutional grounds is reversed. The matter is remanded to
the trial court with directions to conduct further proceedings
pursuant to section 1170.95 and determine whether appellant is
entitled to the relief for which he has petitioned. We express no
opinion on how the trial court should rule.
       NOT TO BE PUBLISHED.

                                                   YEGAN, J.

We concur:


             GILBERT, P. J.                        PERREN, J.




                                  6
                      Derek Malan, Judge

               Superior Court County of Ventura

                ______________________________

     Law Offices of Allen g. Weinberg and Allen G. Weinberg,
under appointment by the Court of Appeal for Defendant and
Appellant.

     Gregory D. Totten, District Attorney, Michelle J. Contois,
Deputy District Attorney for Plaintiff and Respondent.




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