People v. Hunter CA4/3 ( 2020 )

Filed 11/12/20 P. v. Hunter CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058570
v. (Super. Ct. No. 95WF2035)
TREMAINE HUNTER, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Reversed.
Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
Tremaine Hunter appeals from a postjudgment order after the trial court
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denied his petition pursuant to Penal Code section 1170.95, which the Legislature
enacted in Senate Bill No. 1437 (S.B. 1437). Hunter argues the trial court erred by
concluding S.B. 1437 was unconstitutional because it impermissibly amended two voter
initiatives. We agree and reverse the order.
FACTS
In 1998, a jury convicted Hunter of first degree murder (§ 187, subd. (a)),
and second degree robbery (§§ 211, 212.5, subd. (b), 213, subd. (a)(2)). The trial court
sentenced Hunter to 25 years to life in prison. We affirmed the judgment but modified it
to stay the sentence for the robbery conviction pursuant to section 654. (People v. Hunter
(Mar. 30, 2000, G023774) [nonpub. opn.].)
In 2019, Hunter filed a section 1170.95 petition to vacate his murder
conviction and be resentenced. The Orange County District Attorney filed an opposition,
and Hunter filed a reply brief. The trial court denied the petition, concluding S.B. 1437
(Stats. 2018, ch. 1015, §§ 2-4), was unconstitutional because it impermissibly amended
Propositions 7 and 115.
DISCUSSION
“Legislation unconstitutionally amends an initiative statute if it changes
that statute ‘“‘by adding or taking from it some particular provision.’”’ [Citations.]
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.”’ [Citation.]” (People v. Solis (2020)
46 Cal. App. 5th 762, 769 (Solis).) Although our review is de novo, we presume the
Legislature acted within its authority. (Id. at p. 771.)
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All further statutory references are to the Penal Code, unless otherwise
indicated.
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An actual killer may be convicted of murder. (People v. Cruz (2020)
46 Cal. App. 5th 740, 751 (Cruz).) Additionally, an accomplice of the actual killer can be
convicted of murder pursuant to vicarious liability theories, including the natural and
probable consequences doctrine and the felony-murder rule. (Id. at pp. 751-752.) Under
both theories, the accomplice’s intent to kill is irrelevant. (Id. at p. 752.)
In 1978, the electorate adopted Proposition 7 (Prop. 7, as approved by
voters, Gen. Elec. (Nov. 7, 1978)), which increased the penalties for first and second
degree murder and strengthened California’s death penalty law. (Solis, supra,
46 Cal.App.5th at pp. 772-773.) In 1990, the electorate adopted Proposition 115 (Prop.
115, as approved by voters, Primary Elec. (June 5, 1990)), which as relevant here, added
five felonies to the list of felonies for the felony-murder rule and revised the scope of
capital liability. (Solis, supra, 46 Cal.App.5th at p. 773.)
In 2018, S.B. 1437 amended the natural and probable consequences
doctrine and the felony-murder rule to ensure “‘[a] person’s culpability for murder [is]
premised upon that person’s own actions and subjective mens rea.’ [Citation.]” (Cruz,
supra, 46 Cal.App.5th at p. 752.) S.B. 1437 amended sections 188 and 189. Specifically,
section 188, subdivision (a)(3), now states that “to be convicted of murder, a principal in
a crime shall act with malice aforethought[]” and “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” Section 189 now provides
that a person can only be found guilty of murder if that person (1) was the actual killer, or
(2) aided, abetted, or otherwise assisted the actual killer and had the intent to kill, or
(3) was a major participant in an underlying felony and acted with reckless indifference
to human life. (§ 189, subd. (e).)
Additionally, S.B. 1437 added section 1170.95, which allows defendants
previously convicted of murder under a natural and probable consequences or felony
murder theory to petition the trial court to vacate their murder convictions. Section
1170.95 also allows for resentencing if defendants could not be convicted of murder now
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based on the amendments to sections 188 and 189. The court reviews the petition and if
it determines the petitioner made a prima facie showing he or she is entitled to relief, the
court must issue an order to show cause. (§ 1170.95, subd. (c).) The court next holds a
hearing to determine whether to vacate the petitioner’s murder conviction and resentence
the petitioner. (§ 1170.95, subd. (d)(1).) If the court determines the petitioner is entitled
to relief, his or her murder conviction “shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subd. (e).)
Hunter contends S.B. 1437 did not amend Propositions 7 and 115. All
published opinions addressing this issue, from appellate courts throughout the state, have
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concluded that S.B. 1437 did not unconstitutionally amend either initiative. This long
list of cases includes two published opinions from this court (Solis, supra, 46 Cal.App.5th
at p. 769; Cruz, supra, 46 Cal.App.5th at p. 747). We find the reasoning in these cases
persuasive and follow them here. In light of the district attorney’s decision not to file a
respondent’s brief, and the growing body of comprehensive case authority analyzing the
arguments raised, we need not belabor the contentions asserted in this appeal. Consistent
with the decisions of the preceding cases, we conclude S.B. 1437 did not
unconstitutionally amend Proposition 7 or Proposition 115. (Solis, supra, 46 Cal.App.5th
at pp. 779, 781; Cruz, supra, 46 Cal.App.5th at pp. 747, 754, 757-760.) Thus, the trial
court erred by concluding S.B. 1437 was unconstitutional and denying the petition.
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Published opinions include People v. Lippert (2020) 53 Cal. App. 5th 304;
People v. Lopez (2020) 51 Cal. App. 5th 589, People v. Alaybue (2020) 51 Cal. App. 5th
207, People v. Johns (2020) 50 Cal. App. 5th 46, and People v. Bucio (2020)
48 Cal. App. 5th 300. Previously, Division One of this court in People v. Lamoureux
(2019) 42 Cal. App. 5th 241, review denied February 19, 2020, S259835, and People v.
Superior Court (Gooden) (2019) 42 Cal. App. 5th 270, review denied February 19, 2020,
S259700, concluded S.B. 1437 did not invalidly amend Proposition 7 and/or Proposition
115.
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DISPOSITION
The postjudgment order is reversed and the matter is remanded for further
proceedings on the merits of Hunter’s petition.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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