Filed 8 / 19 / 20 P. v. Jackson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FREDERIC K LEE JACKSON,

Defendant and Appellant. 2d Crim. No. B301919 (Super. Ct. No. CR34092) (Ventura County)

Frederick Lee Jackson appeals from an order denying his petition to vacate his first degree murder conviction and obtain resentencing under Senat e Bill No. 1437 (S.B. 1437), which went into effect on January 1, 2019. (Se e Stats. 2018, ch. 1015, § 4.)
S.B. 1437 amended the felony

- murder rule and the natural and probable consequences doctrine insofar as it applies to murder. It
also added section 1 170.95 to the Penal Code. 1 If a defendant has previously been convicted of murder under the felony

- murder rule or the natural and probable consequences doctrine and

1 All further statutory references are to the Penal Code

.2

qualifies for relief under section 1170.95, the statute permits the defendant to petition to vacate the conviction and obtain resentencing on any remaining counts. Section 1170.95, subdivision (c) provides, “If the petitioner makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” The tr ial court issued an order to show cause and conducted a hearing on the petition. The court ruled that, insofar as S.B. 1437 modifie d the felony

- murder rule (§ 189), it unconstitutionally amended Proposition 115 because the Assembly had not passed it by a two

thirds margin

. Therefore, without deciding whether appellant is entitled to relief under section 1170.95, the trial court denied his petition.
We conclude that S.B. 1437 passes constitutional muster.
We reverse and remand the matter for further pro ceedings in
accordance with section 1170.95.
Facts Since the trial court’s ruling and the arguments in the
briefs are limited to the constitutionality of S.B. 1437 , we omit a statement of facts underlying the murder conviction . A brief
recitation of the f

acts appears at pages 2

- 4 of our non published opinion affirming the 2005 judgment of conviction. ( People v.
Jackson (Mar. 18, 2008, B186302).) Procedural History In 2005 appellant was convicted by a jury of first degree
murder after a retrial on that char ge. In the original trial in 1995, he had been convicted of first degree murder and rape. In 2004 the Ninth Circuit Court of Appeals vacated the murder conviction. At the retrial of the murder charge, the jury found true an allegation that a principal i n the commission of the3

murder had been armed with a firearm. Appellant was sentenced to prison for 26 years to life. In January 2019 appellant filed a petition for relief pursuant to section 1170.95. Appellant alleged, “I was convicted of 1st degree fe lony murder and I could not now be convicted because of changes to Penal Code § 189, effective January 1,
2019 . . . .” 2
S.B. 1437

“ Under the felony

- murder rule as it existed prior to Senate Bill 1437, a defendant who intended to commit a specified felon y could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state. [Citation.] . . . [¶] Independent of the felony

murder rule, the natural and probable consequences doctrine
rende red a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable

conseque nce of the target offense. [Citation.]” ( People v. Lamoureux (2019) 42 Cal.App.5th 241, 247

- 248 ( Lamoureux ).) In S.B. 1437 the legislature stated , “ It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual

2 We do not consider whether appellant was in fact convicted of felony murder. This issue is not before us. The trial court noted that, at the original trial in 1995

, appellant was acquitted of kidnapping the victim. At the retrial in 2005, “[t]he jury found not true a special circumstances allegation that the murder had been committed during the commission of rape.” ( People v. Jackson

, supra , [nonpub. op n.] at p. 1.)4

killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” ( Stats. 2018, ch. 1015, § 1, subd. (f).) To achieve this goal, S.B. 1437 amended section 189, insofar as it pertains to the felony

- murder rule, to add subdivision (e), which provides: “ A participant in the perpetration or attempted perpetration of a felon y listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, comma nded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described
in subdivi sion (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3
, subd. (e). ) S.B. 1437 also amended section 188, which defines “malice,” to provide, “Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a) (3); see Stats. 2018, ch. 1015, § 2.) Section 1170.95, added by S.B. 1437, provides in subdivision (a), “ A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the pe titioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when” certain conditions apply. One of the
conditions is that “ [t]he petitioner could not be convicted of first or second degree murder because of ch anges to Section 188 or 189 made [by S.B. 1437] effective January 1, 2019.”5 We Agree with Appellate Courts that Have Upheld the Constitutionality of S.B. 1437 The People argue, “S.B. 1437 is plagued by constitutional infirmity.” They claim that it (1) u nconstitutionally amends both Proposition 115 and Proposition 7, (2) “violates the separation of powers [doctrine] by infringing upon the function of the judiciary and the governor’s exclusive power of clemency [capitalization omitted],” and (3) conflicts with victims’ rights established by Proposition 9, “the Victims’ Bill of Rights Act of 2008, also known as Marsy’s law.” In November 2019, after the trial court’s ruling that S.B.
1437 is unconstitutional, the Fourth District, Division One, of the
Cour t of Appeal upheld the constitutionality of S.B. 1437 in two

cases: Lamoureux

, supra , 42 Cal.App.5th 241, and People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 ( Gooden ). 3 In March 2020 the Fourth District, Division Three, upheld its
constitution ality in two cases: People v. Cruz (2020) 46 Cal.App.5th 740, and People v. Solis (2020) 46 Cal.App.5th 762. Finally, in April 2020 this court upheld its constitutionality in People v. Bucio (2020) 48 Cal.App.5th 300

. There is no published appellate cour t opinion concluding that S.B. 1437 is
unconstitutional. In the five published opinions listed above, the appellate

courts considered and rejected the same arguments made by the People in the present case

. We disagree with the People’s claim
that these “o pinions are wrongly decided.” For the reasons

3 On February 19, 2020, the California Supreme Court denied review in both cases.6

explained in these opinions , we reject the People’s arguments
that S.B. 1437 is unconstitutional

. We add an additional comment as to the People’s claim that S.B. 1437 violates “the right to truth in sentenci ng which provides that criminal sentences ‘shall not be substantially diminished by early release policies intended to alleviate overcrowding in custodial facilities.’ (Cal. Const., art. I, § 28, subd. (f), par. (5).) ” S.B. 1437 is not an “early release polic[y].” It is a penal reform measure designed “to more equitably sentence
offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) The legislature wanted to avoid “lengthy sentences that are not commensur ate with the culpability of the individual.” ( Id

., § 1, subd. (e).) Accordingly, the trial court erroneously denied appellant’s section 1170.95 petition on constitutional grounds. Disposition The order denying appellant’s section 1170.95 petition on

const itutional grounds is reversed. The matter is remanded to the trial court with directions to conduct further proceedings pursuant to section 1170.95 and determine whether appellant is entitled to the relief for which he has petitioned. We express no opini on on how the trial court should rule.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J. PERREN, J.7 Derek Malan, Judge

Superior Court County of Ventura

______________________________ Law Offices of Allen g. Weinberg and Allen G. Wein berg, under appointment by the Court of Appeal for Defendant and Appellant.

Gregory D. Totten, District Attorney, Michelle J. Contois, Deputy District Attorney for Plaintiff and Respondent.