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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

JENNIFER VELTEN,

 Defendant and Appellant.

2d Crim. No. B298964

(Super. Ct. No. F000464362002)

(San Luis Obispo County)

Jennifer Velten appeals from a postjudgment order denying 

her petition for resentencing under Penal Code1 section 1170.95. 

Appellant 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 2012, appellant was charged with murder (§ 187, subd. 

(a)), burglary (§ 459), and robbery (§ 211). After a preliminary 

1 All undesignated statutory references are to the Penal 

Code.
2

hearing, appellant pleaded guilty to second degree murder and 

was sentenced to 15 years to life in state prison.

Following the enactment of SB 1437, appellant filed a 

petition for resentencing pursuant to section 1170.95. The 

prosecution moved to dismiss the petition on the ground that SB 

1437 is unconstitutional. In its motion, the prosecution 

contended that SB 1437 unconstitutionally amended Propositions 

7 and 115. The prosecution also argued that SB 1437 conflicts 

with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law). In its 

reply to appellant’s opposition, the prosecution further asserted 

that SB 1437 violates the separation of powers doctrine by 

undermining the finality of court judgments. 

In its ruling, the court stated that the evidence at 

appellant’s preliminary hearing “showed probable cause to 

believe that [appellant] and three codefendants participated in 

the burglary and robbery of the victim, in a residential motel, 

resulting in a co-defendant stabbing the victim to death. It is 

clear that for purposes of the preliminary hearing that the People 

relied on a felony murder theory.” The court nevertheless denied 

the petition, concluding that SB 1437 “violate[s] the California 

Constitution 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, [appellant] cannot, as a matter of law, secure the 

relief . . . section 1170.95 purports to offer.” 

DISCUSSION

Appellant contends the trial court erred in denying her 

petition for resentencing under section 1170.95 based on the 

finding that SB 1437 is unconstitutional. We agree.

SB 1437, which went into effect on January 1, 2019,

amended the definition of murder in sections 188 and 189 to 
3

narrow the scope of the felony murder rule and the natural and 

probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–3.) 

The measure also added section 1170.95 to establish a procedure 

whereby persons previously convicted of murder, who could not 

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 resentenced ‘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 (Bucio).) 

After appellant filed her opening brief, our colleagues in 

Division One of the Fourth Appellate District issued two opinions 

upholding the constitutionality of SB 1437. (People v. Superior 

Court (Gooden) (2019) 42 Cal.App.5th 270, review denied 

February 19, 2020, S259700 (Gooden) [SB 1437 did not amend 

Propositions 7 and 115]; People v. Lamoureux (2019) 42 

Cal.App.5th 241, review denied February 19, 2020, S259835 

(Lamoureux) [SB 1437 did not unconstitutionally amend 

Propositions 7 and 115 and did not violate the separations of 

powers doctrine or Marsy’s Law].) After briefing was completed, 

we issued an opinion following 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.) Since then, 

numerous other courts have issued opinions rejecting identical 

constitutional challenges to SB 1437. (See, e.g., 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.5th 589; People v. Johns (2020) 50 Cal.App.5th 46; 

People v. Prado (2020) 49 Cal.App.5th 480 ; People v. Smith 
4

(2020) 49 Cal.App.5th 85; People v. Solis (2020) 46 Cal.App.5th 

762; 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 

briefs 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), and the People have declined to address 

that decision or the many other recent published decisions that 

have all reached the same conclusion, we deem it sufficient for 

present purposes to once again hold—pending a contrary decision 

by our Supreme Court—that SB 1437 is constitutional.

DISPOSITION

The order dismissing appellant’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:

GILBERT, P. J. YEGAN, J.

2 We grant the People’s unopposed request for judicial 

notice of documents regarding the legislative histories of 

Propositions 7 and 115 and SB 1437. (Evid. Code, §§ 452, subs. 

(c) & (d), 459.)
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Timothy S. Covello, Judge

Superior Court County of San Luis Obispo

______________________________

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dan Dow, District Attorney, Melissa Chabra, Deputy 

District Attorney, for Plaintiff and Respondent.