Filed 8 / 24 / 20 P. v. Wollett 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICK OREN WOLLETT

,
Defendant and Appellant. 2d Crim. No. B29 9129 (Super. Ct. No. F 411505002 ) ( San Luis Obispo County)

Patrick Oren Wollett appeals from a postjudgment order
d enying h is petition for resentencing under Penal Code 1 section
1170.95

. Wollett contends the court erred in finding that Senate Bill No. (SB) 1437, pursuant to which section 1170.95 was enacted, is unconstitutional. We agree and accordingly reverse.

FACTUAL AND PROCEDURAL HISTORY
In December 2007 , Wollett and codefendant Chad
Westbrook assault ed Joshua Houlgate with a baseball bat and a metal object after discovering him in bed with Wollett’s brother’s

1 All further undesignated statutory references are to the Penal Code.2

fiancé. When Houlgate tried t o escape , Westbrook retrieved a shotgun and fatally shot him. Wollett was s ubsequently

c onvicted of fi rst degree murder ( § § 187 , subd. (a)

, 189 ) and assault with a deadly weapon (§ 245, subd. (a)(1))

. The jury also
found true allegation s that Wollett personally inflicted great bodily inju ry in committing the assault (§ 12022.7 , subd. (a))

, that he personally used a deadly weapon in committing the murder (§ 12022 , subd. (b)), and that a principal was armed with a firearm in committing the murder (§ 12022 , subd. (a)(1))

. Wollett
was sentenced to an aggregate term of 32 years to life in state

p r ison. On appeal, we reversed Wollett’s conviction of first degree
murder due to instructional error regarding the natural and probable consequences doctrine of accomplice liability . ( People v.
Wollett (Feb. 16, 2012

, B224204 ) [non

- pub. o pn .] .) In doing so, we noted that “the prosecution did not argue that Wollett was liable
for the murder because of his subjective intent to commit, facilitate, or encourage the murder. The prosecution argued that
Wollett aided and abetted the assault and the murder was a natural and probable consequence of the assault, and the jury was instructed only on that theory. The instruction stated that, to find Wollett guilty of premeditated murder, the jury must find
tha t he committed assault with a deadly weapon, a co participant in the assault committed the offense of murder, and a reasonable person in Wollett’s position would have known that murder was a natural and probable consequence of the assault. [Citation.] ” ( I d. a t p. 5 .) In reversing the first degree murder conviction, “[ w ] e conclude [ d ] that the trial court erred in failing to instruct the jury that to convict [Wollett] of first degree premeditated murder under the natural and probable consequences rule, th e jury must
find that first degree premeditated murder

, not simply murder

,3

was a natural and probable consequence of the assault. ” ( People
v. Wollett

, supra , B224204, at p p

. 1

- 2 .) The prosecution was given the option o f either retrying Wollett for first degree murder

or accepting a modification of the judgment to reflect a conviction of second degree murder. ( Id. at p. 11

. ) After the prosecution announced that it would not retry Wollett for f irst degree murder,
the trial court resentenced Wollett for second degree murder and assault with a deadly weapon to an aggregate term of 21 years to life in state prison. Following the enactment of SB 1437, Wollett filed a petition for resentencing pursuant to section 1170. 95. The prosecution
moved to dismiss the petit ion on the ground th at SB 1437 is
unconstitutional. In its motion, the prosecution conte nded that
SB 1437 unconstitutionally amended Propositions 7 and 115

. The prosecution als o argued that SB 1437 conflicts with the
Victims’ Bill of Rights Act of 2008 (Marsy’s Law). In its reply to
Wollett ’s opposition, the prosecution further asserted that SB 1437 violates the separation of powers doctrine by undermin ing

t he finality of court judgments.
In denying Wollett’s petition, the trial court concluded that
SB 1437 “violate[s] the California Constit ution by violating the separation of powers doctrine, the constitutional requirement for finality of judgments, and the due process protections accorded both the parties, and by unconstitutionally amending Propositions 115 and 7. Accordingly, [ Wollett ] ca nnot, as a matter of law, secure the relief . . . section 1170.95 purports to offer.”
DISCUSSION
Wollett contends the trial court erred in denying his petition for resentencing under section 1170.95 based on the finding that SB 1437 is unconstitutional. We agree

.4 S B 1437 , which went into effect on January 1, 2019,
amended the definition of murder in sections 188 and 189 to

narrow the scope of the felony murder rule and the natural and probable consequences doctrine. (Stats. 2018, ch. 1015 , §§ 2

- 3
, p. 6679

. ) The measure also added section 1170.95 t o establish a procedure whereby persons previously convicted of murder, who
could no t be convicted under the new definitions, could petition to
have their convictions vacated

. “If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner must be resent enced ‘ on any remaining counts in the same manner as if the petitioner had not been previously . . .
sentenced , provided that the new sentence, if any, is not greater
than the initial sentence.’ ( § 1170.95, subd. (d)(1).)” ( People v.
Bucio (2020) 48 Cal.App.5th 300

, 307 , review denied July 8 , 2020,
S2 62499 ( Bucio ). )
Before Wollett filed h is opening brief, our colleagues in
Division One of the Fourth Appellate District issued two opinions uph o ld ing the constitutionality of SB 1437 . ( People v. Superior
Court ( Gooden ) (2019) 42 C al.App. 5 th 270 , review denied
Fe bruary 19, 2020, S25 9700 ( Gooden ) [SB 1437 did not amend Propositions 7 and 115 ] ; People v. La moureux (2019) 42 Cal.App. 5th 241 , review denied February 19, 2020, S25 9835 ( Lamou reux

) [SB 1437 did not unconstitutionally amend Propositions 7 and 115 and did not violat e the separations of powers doctrine or Marsy’s Law ]

. ) After briefing was completed,
we issued a n opinion fo llowing Gooden and Lamoureux in rejecting all four of the constitutional challenges at issue in this appeal. ( Bucio

, supra , 48 Cal.App.5th at p. 306.) S ince then, numerous other courts have issued opinions rejecting identical constitutional challenges to SB 1437 . ( See People v. Superior
Court ( Ferraro ) (2020) 51 Cal.App.5th 896 ; People v. Alaybue (2020) 51 Cal.App.5th 207; People. v. Lopez (2020) 51 Cal.App.5th5

589 ; People v. Johns (2020) 50 Cal.App.5th 46 ; People v. Prado (2020) 49 Cal.App.5th 480 ; People v. Smith (2020) 49 Cal.App.5th
85 ; People v. Solis (2020) 46 Cal.App.5th 76 2 ; People v. Cruz (2020) 46 Cal.App.5th 740.) Although the People address Gooden and Lamoureux in their respondent’s brief, they did not submit any supplemental
brief s addressing Bucio or the numerous other cases uniformly holding that SB 1437 is constitutional. 2 Because we have already rejected all four of the grounds upon which the trial court in this
case found SB 1437 to be unconstitutional ( Bucio

, supra , 48 Cal.App.5th at p. 306 ), a nd the People have declined to address
that decision or the many other recent published decisions that
hav e all reached the same conclusion

, we deem it sufficient for present pur pose s to once again hold

— pending a contrary decision by our Supreme Court

— that SB 1437 is constitutional.
DISPOSITION
The order d is missing Wollett’s section 1170.95 petition is
reversed

, and the matter is remanded for the trial court to consider the merits of the petition

. NOT TO BE PUBLISHED.

PERREN , J.

We concur:

YEGA N

, Acting P. J. TANGEMAN , J.

2 We grant the People’s unopposed request for judicial notice of documents re garding the legislative histories of Propositions 7 and 115 and SB 1437. (Evid. Code , § 452 , subs. (c), (d).)6 Dodie Harman , Judge Superior Court County of San Luis Obispo

______________________________

Nancy J. King , under appointment by the Court of Appeal, for Defendant and Appellant.
Dan Dow

, District Attorney, Christopher Peuvrelle

, Melissa
Chabra , Deputy District Attorney s , for Plaintiff and Respondent.