Filed 9/22/20 P. v. Mo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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,

v. TIEN HSIANG MO, Defendant and Appellant. G058591
(Super. Ct. No. 00HF0111)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Reversed and remanded.

Joshua L. Siegel, under appointme nt by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 This is an appeal from an order summarily denying defendant’s petition to dismiss his murder conviction. (Pen. Code, § 1170.95.) 1 The trial court denied the petition because it found that the enabling legislation violates the California Constitution. (Senate Bill No. 1437 (2017

- 2018 Reg. Sess.); Senate Bill 1437.) We disagree.

Senate Bill 1437 did not directly amend any initiative statutes. Senate Bill
1437 also did not indirectly amend any initiative measures. We therefore reverse and remand so that defendant’s section 1170.95 petition can be considered on its merits.

I
PROCEDURAL BACKGROUND In 2001, a jur y found defendant Tien Hsiang Mo guilty of first degree murder and found true a lying in wait special circumstance. T he trial court sentenced
defendant to life without the possibility of parole

.

In 2019, defendant filed a section 1170.95 petition. Defen dant averred,
“I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and “I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§188 and 189, e ffective January 1, 2019.” The prosecution argued “Senate Bill 1437 violates the California
Constitution.” In the alternative, the prosecution argued under section 1170.95,
defendant “ is statutorily ine lig ible. ” 2 The trial court found Senate Bill 1437 to be
unconstitutional.

1 Further undesignated statutory references are to the Penal Code.

2 The prosecution did not file a respondent’s brief. In these circumstances we “may decide the appeal on the record, the opening brief, and any oral argument by the appellant.” (Cal. Rule s of Court, rule 8.220(a)(2).)3 II
DISCUSSION Every published opinion on this issue has held that Senate Bill 1437 did not
violate the California Constitution. ( See, e.g., People v. Lippert (2020) 53 Cal.App.5th 304, 313

- 314; People v. Nash (2020) 52 Cal.App.5 th 1041, 1053; People v. Johns (2020) 50 Cal.App.5th 46, 63; People v. Lopez (2020) 51 Cal.App.5th 589, 602; People v. Prado (2020) 49 Cal.App.5th 480, 483 ( Prado ); People v. Solis (2020) 46 Cal.App.5th 762, 769 ( Solis ) ; People v. Cruz (2020) 46 Cal.App.5t h 740, 747; People v. Lamoureux (2019) 42 Cal.App.5th 241, 251 ; People v. Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270,
2 80 .) We adopt these holdings. Therefore, this unpublished opinion will be in an
abbreviated form. 3

“To protect the people’s in itiative power, the Legislature is constitutionally prohibited from amending or repealing an initiative statute without the approval of the electorate (unless the initiative statute provides otherwise): ‘The Legislature may amend or repeal an initiative s tatute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.’” ( Prado , supra , 49 Cal.App.5th at p. 482.) “For purposes of article II, section 10 of the California Constitution, legislation amends an initiative if it ‘“‘change[s] an existing initiative statute by adding or taking from it some particular provision.’”’” ( Solis , sup ra , 46 Cal.App.5th at p. 771, italics added.)

Senate Bill 1437 only “amended sections 188 and 189, which respectively define malice and the degrees of murder. As amended, the two statutes substantially reduced the scope of an accomplice’s liability for murder. Senate Bill 1437 also enacted

3 “The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion . Such causes could include: [¶]]

. . . [¶] (2) An appeal that is determ ined by a controlling decision which does not require a reexamination or restatement of its principles or rules . . . .” (Cal. Stds. Jud. Admin., § 8.1, italics added.)4

section 1170.95, which allows eligible persons convicted of murder to petition for relief.” ( Prado , supra , 49 Cal.App.5th at p. 482.)

“Section 188 was enacted by the Legislature in 1872. The Legislatu re has since amended the statute a few times, but the electorate has never amended section 188. The electorate has also never repealed and reenacted section 188. (See Gov. Code, § 9605 . . . .) Therefore, section 188 was from its enactment

— and remains

— a legislative statute.” ( Prado , supra , 49 Cal.App.5th at p. 490.)

“Section 189 was also enacted by the Legislature in 1872. The Legislature has since amended the statute several times, but the electorate has amended section 189 only once. In 1990, the el ectorate approved Proposition 115, which was a major reform in criminal law . . . . However, the amendment to section 189 was minor; the electorate added six ‘predicate’ offenses to the existing list that establishes liability for first degree felony murd er. Notably, the electorate did not repeal and reenact section 189 in its amended form. . . . Therefore, section 189 was from its enactment

— and remains

— a legislative statute.” ( Prado , supra , 49 Cal.App.5th at pp. 490

- 491, fn. omitted.)

Thus, the Legisl ature did not violate the prohibition against amending or repealing an initiative statute without voter approval when it passed Senate Bill 1437
because sections 188 and 189 are not initiative statutes.

Althou gh the Legislature directly amended only secti ons 188 and 189 through Senate Bill 1437, t he prosecution argues that the Legislature indirectly amended Proposition 7 and Proposition 115 through Senate Bill 1437. We disagree.

“Proposition 7 provided greater penalties for those convicted of murder and increased the number of special circumstances that could form the basis of a sentence of death or life in prison without parole. In contrast, Senate Bill . . . 1437 changed the
elements of murder by limiting the circumstances in which malice can be implie d, thereby restricting the application of the felony

- murder rule and the natural and probable5

consequences doctrine. Senate Bill . . . 1437 is neither inconsistent with Proposition 7, nor does it circumvent the electorate’s intent.” ( Solis , supra , 46 Cal .App.5th at p. 779.)

“Proposition 115 did not specifically authorize or prohibit restrictions on the application of the first degree felony

- murder rule to accomplices, Senate Bill 1437 did not improperly amend Proposition 115 by adding such restrictions t o felony murder in section 189.” ( People v. Cruz , supra , 46 Cal.App.5th at p. 760.)

III
DISPOSITION The trial court’s order denying defendant’s petition for resentencing is reversed. The matter is remanded to the court for further proceedings on the me rits of defendant’s petition under section 1170.95.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.