Filed 9/1/20 P. v. Thompson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

MICHAEL LYNNE THOMPSON,

 Defendant and Appellant.

 G058156

 (Super. Ct. No. C-33433)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Lance Jensen, Judge. Reversed and remanded with directions.

Cathryn L. Rosciam, 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. 
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Defendant Michael Lynne Thompson appeals from the lower court’s denial 

of his petition for resentencing (Petition) under Penal Code section 1170.95 (section 

1170.95). 

In 1975, a jury convicted defendant of two counts of first degree murder, 

one count of conspiracy to commit murder, one count of simple kidnapping, and one 

count of assault by means of force likely to produce great bodily injury. The court 

sentenced him to life with the possibility of parole. 

In 2019, defendant filed his Petition seeking resentencing on the murder 

count pursuant to section 1170.95. The court denied the Petition on the grounds Senate 

Bill No. 1437 (Stats. 2018, ch. 1015, § 4; SB 1437), the legislation which added section 

1170.95 to the Penal Code, is unconstitutional and unenforceable, because it improperly 

amended Proposition 7 and Proposition 115.

Defendant’s briefs, and an amicus curiae brief filed by the Attorney 

General in support of defendant (Cal. Rules of Court, rule 8.200(c)(7)), all argue the trial 

court erred. The respondent’s brief filed by the district attorney argues the contrary. 

We conclude the trial court erred by ruling SB 1437 unconstitutional. 

Consequently, we reverse the order denying the Petition, and remand the matter to the 

trial court with directions to consider the Petition on the merits.

DISCUSSION

The trial court did not determine whether defendant qualified for relief 

under section 1170.95, but instead denied the Petition solely on the ground SB 1437 

violated article II, section 10, subdivision (c), of the California Constitution because: (1) 

it constituted a legislative amendment of Proposition 7 (which increased the penalty for 

first and second degree murder) “without the electorate’s approval,” and (2) it amended 

Proposition 115 (which added to the lists of crimes warranting a first degree felony 
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murder conviction) without “the required two-thirds majority vote of both house of the 

California Legislature . . . .” 

Defendant argues the trial court erred by finding SB 1437 unconstitutional. 

The Attorney General filed an amicus curiae brief on behalf of defendant, defending the 

constitutionality of SB 1437 and arguing it amended neither Proposition 7 nor

Proposition 115. The Orange County District Attorney, representing the People in this 

appeal, contends SB 1437 amended both propositions.

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The constitutionality of SB 1437 was upheld by this Division Three in 

People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Solis (2020) 46 Cal.App.5th 

762 (Solis); and (People v. Prado (2020) 49 Cal.App.5th 480 (Prado) and by Division 

One of this court in People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 

(Gooden) and People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux). 

In all of these cases, the appellate courts agreed with arguments which were 

substantially identical to those advanced by defendant and the Attorney General in this 

case, and rejected arguments comparable to those advanced by the district attorney here. 

We likewise do the same, for the reasons articulated in Cruz, Solis, and Prado. 

In Cruz, we analyzed the constitutionality of SB 1437 and concluded: 

“[T]he Legislature’s enactment of Senate Bill 1437 has not undone what the voters 

accomplished with Proposition 7 or Proposition 115 and therefore the legislation does not 

violate the constitution. Senate Bill 1437 addresses the elements of murder, an area 

related to but distinct from the penalty for murder set by voters in Proposition 7. Nothing 

in the language of Proposition 7 nor its ballot materials evidences an intent by the voters 

to prohibit the Legislature from refining the elements of murder, namely limiting 

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 The district attorney requests we take judicial notice of seven “matters.” Five 

involve legislative material relating to SB 1437 and voters’ ballot information on 

Propositions 7 and 115. The other two “matters” are the 1977 and 1978 versions of Penal 

Code sections 187, 188, and 189. Having received no opposition, we grant the district 

attorney’s request. (Evid. Code, §§ 451, 452, 459, subd. (a).) 
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accomplice liability under the natural and probable consequences doctrine or felonymurder rule. Nor did the voters so limit the Legislature with the passage of Proposition 

115.” (Cruz, supra, 46 Cal.App.5th at p. 747, italics added.) Thus, we rejected a 

contention that SB 1437 alters the punishment for murder set by Proposition 7 by 

amending the definition of malice in Penal Code section 188 and by limiting who can be 

prosecuted for felony murder under Penal Code section 189. (Cruz, at p. 754.) 

We also concluded SB 1437 did not amend Proposition 115, and rejected 

an argument that the Legislature was prohibited from addressing accomplice liability for 

felony murder in SB 1437 merely because accomplice liability in capital cases had been 

addressed in Proposition 115. (Cruz, supra, 46 Cal.App.5th at pp. 759-760.) We 

explained SB 1437’s limitations on 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.” (Id. at p. 760.)

Similarly, in Solis, we determined SB 1437 does not authorize anything 

prohibited by Propositions 7 or 115, nor prohibit anything authorized by the voters in 

these two initiatives. (Solis, supra, 46 Cal.App.5th at p. 769.) After reviewing the ballot 

materials for Proposition 7 (Id. at pp. 776-777), we concluded “Senate Bill No. 1437 is 

neither inconsistent with Proposition 7, nor does it circumvent the electorate’s intent.” 

(Id. at p. 779.) After considering its text and ballot materials, we reached the same 

conclusion regarding Proposition 115. (Solis, at pp. 780-783.) 

In upholding SB 1437’s constitutionality in Cruz and Solis, we reached the 

same conclusions our Division One colleagues did in Gooden and Lamoureux. In 

Gooden, the majority concluded SB 1437 was constitutional, explaining it did not amend 

either “Proposition 7 or Proposition 115 because it neither added to, nor took away from, 

the initiatives.” (Gooden, supra, 42 Cal.App.5th at p. 275; accord, Lamoureux, supra, 42 

Cal.App.5th at p. 251.) As the Gooden court observed, “the voters who approved 
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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.) 

Finally, and most recently, another panel of this Division Three took a 

slightly different tack, and upheld SB 1437 because by its very terms it did not amend or 

otherwise affect any initiative statutes, and instead only enacted or modified existing 

legislative statutes, which it is constitutionally empowered to do. (Prado, supra, 49 

Cal.App.5th at p. 483.)

In the end, the arguments advanced by the district attorney in this case are 

identical to those we have already rejected in Cruz, Solis, and Prado, and the district 

attorney has offered nothing to convince us we were incorrect. We see no reason to 

depart from our analyses and conclusions in those cases—and those of our colleagues in 

Gooden and Lamoureaux—that SB 1437 is constitutional.

Therefore, for the reasons articulated in Cruz, Solis, and Prado we conclude 

the lower court here erred by denying defendant’s section 1170.95 Petition.
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DISPOSITION

The order denying the Petition for resentencing is reversed, and the matter 

is remanded to the trial court with directions to consider the Petition on the merits under 

section 1170.95. We express no opinion how the court should rule at those proceedings.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.