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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 PHUOC PHUNG, Defendant and Appellant. G058301
(Super. Ct. No. 11WF0963)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Reversed and remanded.

Anthony J. Dain, un der 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.2 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 murd er 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 11 5 in 1990.

Appealing from the order denying his petition, defendant argues Senate Bill
1437 is constitutional as it does not amend either Pr oposition 7 or Proposition 115. The California Attorney General filed an amicus curi ae brief on behalf of defendant, defending the constit utionality 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 189.3 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 A pp

. 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 ].) W e 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 appoin ted counsel arises under section 1170.95, subdivision (c).4

(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 offense s 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 accept ed 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 resent ence him under section
1170.95. The district attorney oppose d 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 S enate 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 unconstitutio nal, the court found moot the issue of whether the prosecution failed to timely file their response.5

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 a men ded 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; o r 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 h uman life . . . .” (§ 189, subd. (e), as a men ded 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 conv icted 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. (Stat s. 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 a mending Propositions 7 and 115. This constitution al 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 defend ant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his/her duties. (§ 189, subd. (f).)6

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 Propos itions 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 Bil l 1437’s amendments to sections 188 and 189 altered the punishment for murder in section 190 , which w as 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 degr ee 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 P eople v. P rado, supra , 49 Cal.App.5th 480, albeit through a different ana lysis.7 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, su pra , 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. 77 6

- 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 pre dicate 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 eleme nts 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 we re 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 wa s addressed in Proposition 115. ( Cruz, supra , 46 Cal.App.5th at p. 760.) We explained Senate Bill 1437’s limitations on8

accomplice liability “in section 189 is an area of law related to but distinct from

acco mplice 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 attorne y’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 initiativ e. ” ( 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.)9 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 orde r 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.