People v. Phung CA4/3

Filed 12/7/20 P. v. Phung 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G058301
v. (Super. Ct. No. 11WF0963)
TIEN PHUOC PHUNG, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Reversed and remanded.
Anthony J. Dain, 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.
* * *
In 2019, defendant Tien Phuoc Phung petitioned the superior court to
vacate his murder conviction and to resentence him pursuant to Penal Code section
1170.95.1 Section 1170.95 was enacted as part of Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Senate Bill 1437), which also amended sections 188 and 189 to limit accomplice
liability for murder under the natural and probable consequences doctrine and the felony-
murder rule. (Stats. 2018, ch. 1015.) Under section 1170.95, qualifying defendants can
petition the superior court to have their murder convictions vacated and to be
resentenced. (Stats. 2018, ch. 1015, § 4.) Here, the court did not determine whether
defendant qualified for such relief; instead, the court denied the petition on the ground
that Senate Bill 1437 unconstitutionally amends statutes approved by voters with
Proposition 7 in 1978 and Proposition 115 in 1990.
Appealing from the order denying his petition, defendant argues Senate Bill
1437 is constitutional as it does not amend either Proposition 7 or Proposition 115. The
California Attorney General filed an amicus curiae brief on behalf of defendant,
defending the constitutionality of Senate Bill 1437. The Orange County District
Attorney, representing the People in this appeal, maintains Senate Bill 1437
unconstitutionally amends both propositions and the court’s order should be affirmed.2
1 All further statutory references are to the Penal Code.
2 We grant the district attorney’s unopposed request for judicial notice of
legislative materials concerning Senate Bill 1437, ballot pamphlet materials for
Propositions 7 and 115, and former versions of sections 187 through 189.
2
Since the trial court’s ruling, Senate Bill 1437 has been upheld as
constitutional by panels of this court (People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz);
People v. Solis (2020) 46 Cal.App.5th 762 (Solis); People v. Prado (2020) 49
Cal.App.5th 480) and by our colleagues in Division One of this district (People v.
Superior Court (Gooden) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42
Cal.App.5th 241 (Lamoureux)) and Division Two (People v. Lippert (2020) 53
Cal.App.5th 304; People v. Johns (2020) 50 Cal.App.5th 46). Several other appellate
districts have concurred. (People v. Lombardo (2020) 54 Cal.App.5th 553, 560-561 [3d
App. Dist.]; People v. Murillo (2020) 54 Cal.App.5th 160, 166, fn. 3 [2d App. Dist., Div.
1]; People v. Nash (2020) 52 Cal.App.5th 1041, 1053 [5th App. Dist.]; People v.
Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 902, 917 [3d App. Dist.]; People v.
Lopez (2020) 51 Cal.App.5th 589, 601-602 [2d App. Dist., Div. 2]; People v. Alaybue
(2020) 51 Cal.App.5th 207, 211-222 [6th App. Dist.]; People v. Smith (2020) 49
Cal.App.5th 85, 91-92, rev. granted July 22, 2020, S262835 [2d App. Dist., Div. 5];3
People v. Bucio (2020) 48 Cal.App.5th 300, 306-312 [2d App. Dist., Div. 6].) We agree
with these well-reasoned decisions and conclude Senate Bill 1437 is constitutional. We
reverse the court’s order denying defendant’s petition and remand the matter for the court
to consider the petition on its merits.
FACTUAL AND PROCEDURAL HISTORY
Based on defendant’s involvement in a gang shooting, a jury convicted him
of first degree murder (§§ 187, subd. (a), 189; count 1); attempted murder (§§ 187, subd.
3 Review was granted in Smith, supra, 49 Cal.App.5th 85, S262835, on the
issues of (1) whether a superior court can consider the record of conviction in
determining whether a defendant made a prima facie showing of eligibility for relief
under section 1170.95 and (2) when the right to appointed counsel arises under section
1170.95, subdivision (c).
3
(a), 664; count 2); shooting at an occupied motor vehicle (§ 246; count 3); and
participation in a criminal street gang (§ 186.22, subd. (a); count 4). As to the first three
counts, the jury found defendant committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that
he vicariously discharged a firearm causing great bodily injury and death (§ 12022.53,
subds. (d), (e)(1)). The court sentenced defendant to 50 years to life in state prison.
Defendant appealed, and in an unpublished decision, we reversed his first degree murder
conviction based on People v. Chiu (2014) 59 Cal.4th 155. We remanded the matter,
giving the People the option of accepting a reduction to second degree murder or retrying
the greater offense. (People v. Phung (July 21, 2014, G048108) [nonpub. opn.].)
Upon remand, the prosecution accepted the reduction of defendant’s
conviction to second degree murder, and the court imposed a total prison term of 40 years
to life. We affirmed the judgment in defendant’s second appeal. (People v. Phung (Jan.
7, 2016, G052035) [nonpub. opn.].)
In 2019, following the enactment of Senate Bill 1437, defendant petitioned
the superior court to vacate his murder conviction and resentence him under section
1170.95. The district attorney opposed the petition on two grounds: (1) Senate Bill 1437
is unconstitutional; and (2) defendant is statutorily ineligible for relief because he “aided
and abetted the murder and acted with implied malice.”4 The court denied defendant’s
petition, concluding Senate Bill 1437 violates the state constitution because it “materially
amends” section 190, as enacted by the voters in Proposition 7, and sections 189 and
4 In the trial court, defendant contended the district attorney’s response was
untimely filed because it was not filed within 60 days of service of his petition as
required by section 1170.95, subdivision (c). He requested the court issue an order to
show cause and set the matter for a hearing to determine whether to vacate his murder
conviction and resentence him pursuant to subdivision (d). After concluding Senate Bill
1437 was unconstitutional, the court found moot the issue of whether the prosecution
failed to timely file their response.
4
190.2, as amended by the voters in Proposition 115. Defendant appeals from the court’s
order.
DISCUSSION
Senate Bill 1437 eliminated liability for murder under the natural and
probable consequences doctrine by amending section 188 to prohibit malice from being
imputed to a defendant based only on his or her participation in a crime. (§ 188, subd.
(a)(3), as amended by Stats. 2018, ch. 1015, § 2.) It also limited application of the
felony-murder rule by amending section 189 to provide that a defendant can only be
convicted of first degree felony-murder if the defendant 1) was the actual killer; or 2) was
not the killer but with the intent to kill, aided, abetted, induced or otherwise assisted the
actual killer in the commission of first degree murder; or 3) “was a major participant in
the underlying felony and acted with reckless indifference to human life . . . .” (§ 189,
subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)5 In section 1170.95, the Legislature
created a process for the retroactive application of these statutory changes. Pursuant to
section 1170.95, a defendant previously convicted of murder under either the natural and
probable consequences doctrine or the felony-murder rule, who could not be convicted of
murder now under the amended statutes, can petition the court for vacatur of the murder
conviction and resentencing. (Stats. 2018, ch. 1015, § 4.)
Here, the court denied defendant’s section 1170.95 petition on the ground
that Senate Bill 1437 violates article II, section 10, subdivision (c) of the California
Constitution by amending Propositions 7 and 115. This constitutional provision prohibits
5 These limitations on the felony-murder rule do not apply when the victim is
a peace officer killed in the course of the officer’s duties and the defendant knew or
reasonably should have known that the victim was a peace officer engaged in the
performance of his/her duties. (§ 189, subd. (f).)
5
the Legislature from amending a statute enacted through a voter initiative unless the
amendment is approved by the voters or “the initiative measure itself permits amendment
or repeal without voter approval.” (People v. Cooper (2002) 27 Cal.4th 38, 44.)
However, our Supreme Court has explained, “[T]he Legislature remains free to enact
laws addressing the general subject matter of an initiative, or a ‘related but distinct area’
of law that an initiative measure ‘does not specifically authorize or prohibit.’” (People v.
Kelly (2010) 47 Cal.4th 1008, 1026, fn. 19; accord, People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 571.)
We previously considered whether Senate Bill 1437 constitutes an
unconstitutional amendment of Propositions 7 and 115 in Cruz, supra, 46
Cal.App.5th 740 and Solis, supra, 46 Cal.App.5th 762. In these decisions, we concluded
Senate Bill 1437 amends neither initiative and is constitutional.6 The arguments raised
by the district attorney here are the same ones we rejected in Cruz and Solis. We see no
reason to depart from our analysis and conclusions in our prior cases.
In Cruz, we rejected the district attorney’s assertion that Senate Bill 1437’s
amendments to sections 188 and 189 altered the punishment for murder in section 190,
which was approved by the voters in Proposition 7. (Cruz, supra, 46 Cal.App.5th at p.
754.) We explained, “After the enactment of Senate Bill 1437, a first degree murder
conviction still results in a penalty of life imprisonment with the possibility of parole
after 25 years and a second degree murder conviction results in a penalty of life
imprisonment with the possibility of parole after 15 years, as required by Proposition 7.
Senate Bill 1437 does not authorize reduced sentences for such convictions. Thus,
Senate Bill 1437’s amendments do not take away from Proposition 7’s provisions.”
(Ibid.)
6 We reached the same conclusion in People v. Prado, supra, 49 Cal.App.5th
480, albeit through a different analysis.
6
The district attorney contends the Legislature cannot alter the elements of
murder without voter approval because the punishment for murder approved by voters in
Proposition 7 necessarily incorporated the definition of murder at that time. We rejected
this contention in Cruz and explained the Legislature was free to amend sections 188 and
189 because the elements of murder are related to but distinct from the punishment for
murder set by Proposition 7. (Cruz, supra, 46 Cal.App.5th at pp. 755-757.) We similarly
rejected the district attorney’s contention in Solis, supra, 46 Cal.App.5th at page 779. In
Solis, we reviewed the ballot materials for Proposition 7 and concluded Senate Bill 1437
does not circumvent the voter’s intent. (Solis, at pp. 776-779.)
In Cruz and Solis, we also rejected the district attorney’s assertion that
Senate Bill 1437 unconstitutionally amends Proposition 115. (Cruz, supra, 46
Cal.App.5th at pp. 759-761; Solis, supra, 46 Cal.App.5th at pp. 780-783.) Proposition
115 amended section 189 by adding five serious felonies to the list of predicate offenses
for first degree felony-murder. (Cruz, at p. 759.) We found unpersuasive the district
attorney’s contention that Senate Bill 1437 “substantially changes” section 189 “by
requiring additional elements be proved for accomplices.” In Cruz, we concluded: “The
only change made to section 189 by Proposition 115 was the addition of five serious
felonies to the list of predicate felonies for first degree felony-murder liability. That is all
the electorate voted on in this regard. The voters were not asked to consider the
circumstances under which an aider and abettor should be liable for first degree felony
murder. While the Legislature cannot remove Proposition 115’s five felonies from the
list for first degree felony-murder liability, it can limit liability for accomplices under the
felony-murder rule.” (Cruz, at p. 760.)
We also rejected the district attorney’s argument that the Legislature was
prohibited from addressing accomplice liability for felony murder in Senate Bill 1437
because accomplice liability in death penalty cases was addressed in Proposition 115.
(Cruz, supra, 46 Cal.App.5th at p. 760.) We explained Senate Bill 1437’s limitations on
7
accomplice liability “in section 189 is an area of law related to but distinct from
accomplice liability in special circumstance murder in section 190.2” and “Senate Bill
1437 did not improperly amend Proposition 115 by adding such restrictions to felony
murder in section 189.” (Cruz, at p. 760.)
In Solis, we rejected the district attorney’s assertion that the Legislature was
prohibited from amending any portion of section 189 by a simple majority “because
Proposition 115 reenacted section 189 in full.” (Solis, supra, 46 Cal.App.5th at p. 782.)
Based on relevant case law, we concluded “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.” (Id. at p. 783.)
In Cruz and Solis, we found ourselves in agreement with our Division One
colleagues in Gooden, supra, 42 Cal.App.5th 270 and Lamoureux, supra, 42 Cal.App.5th
241, who concluded that Senate Bill 1437 does not amend either “Proposition 7 or
Proposition 115 because it neither added to, nor took away from, the initiatives.”
(Gooden, at p. 275; accord, Lamoureux, supra, at p. 251.) In Gooden, the court
explained, “Senate Bill 1437 presents a classic example of legislation that addresses a
subject related to, but distinct from, an area addressed by an initiative.” (Gooden, supra,
42 Cal.App.5th at p. 282; accord, Cruz, supra, 46 Cal.App.5th at p. 756.) “[T]he voters
who approved Proposition 7 and Proposition 115 got, and still have, precisely what they
enacted—stronger sentences for persons convicted of murder and first degree felony-
murder liability for deaths occurring during the commission or attempted commission of
specified felony offenses. By enacting Senate Bill 1437, the Legislature has neither
undermined these initiatives nor impinged upon the will of the voters who passed them.”
(Gooden, at p. 289.)
8
In conclusion, Senate Bill 1437 amends neither Proposition 7 nor
Proposition 115 within the meaning of article II, section 10, subdivision (c) of the
California Constitution. We reverse the court’s order denying defendant’s section
1170.95 petition and remand for further proceedings on the merits of defendant’s petition.
DISPOSITION
The postjudgment order denying defendant’s petition for resentencing
under section 1170.95 is reversed and the matter is remanded for further proceedings on
the merits of defendant’s petition.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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