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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FREDERICK 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 Senate Bill No. 1437 (S.B. 1437), which went 

into effect on January 1, 2019. (See 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 1170.95 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 trial court 

issued an order to show cause and conducted a hearing on the 

petition. The court ruled that, insofar as S.B. 1437 modified the 

felony-murder rule (§ 189), it unconstitutionally amended 

Proposition 115 because the Assembly had not passed it by a twothirds 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 proceedings 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 facts appears at pages 2-4 of our nonpublished 

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 charge. 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 in the commission of the 
3

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 felony 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 felony 

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 felonymurder rule, the natural and probable consequences doctrine 

rendered 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 

consequence 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. opn.] 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 felony 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, commanded, 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 subdivision (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 petitioner 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 changes 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) unconstitutionally 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 

Court 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 

constitutionality 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 court 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 “opinions 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 sentencing 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 commensurate 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 

constitutional 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 

opinion 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. Weinberg, 

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.