By Dominique Kato
CALIFORNIA – The Fourth Appellate District, Division Three, reversed the trial court’s denial of the defendant’s Penal Code section 1170.95 petition, a petition to dismiss a murder conviction, due to finding that SB 1437 did not violate the constitutional limitation on amending or repealing an initiative statute.
SB 1437’s purpose is 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 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. It amended sections 188 and 189 which limited the scope of accomplice liability for murder and enacted section 1170.95, which allows eligible accomplices to petition for the dismissal of their murder conviction.
In 1999, the jury found Manuel De Jesus Prado guilty of first degree murder. They also found true an allegation that the defendant was “vicariously armed.” Prado was sentenced to an aggregate prison term to life without parole.
To see court ruling: 4th-DCA-1437
In 2019 Prado filed a section 1170.95 petition, claiming, “I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code 188 and 189, effective January 1, 2019.”
The prosecution argued, “Senate Bill 1437 violates the California Constitution” based on the courts finding the legislature violated the constitutional limitation on amending or repealing initiative statutes. They argued this makes the defendant “statutorily ineligible” to petition. The California Appellate Court found that there was no violation from SB 1437, reversed the initial decision and remanded the court to consider Prado’s petition.
The arguments regarding Prado’s opinion are surrounded by the debate as to whether SB 1437 is an initiative statute or a legislative statute. An initiative statute is a statute enacted by the electorate and a legislative statute is a statute enacted by the legislature. “To protect the people’s initiative power, the Legislature is constitutionally prohibited from amending or repealing an initiative statute without the approval of the electorate (unless the initiative statute provides otherwise)” says the court opinion (Cal. Const., art. II, § 10).
According to Huening v. Eu (1991), “The limitation safeguards ‘the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s 
consent.’” Therefore, if the legislature amended or repealed an initiative statute without the approval of the electorate, or violates the constitutional limitation, the legislative act “is in contravention of the Constitution and hence void.”
The Appellate court argued, “The Legislature did not violate the California Constitution because Senate Bill 1437 neither amended nor repealed any initiative statutes.”
In the court’s opinion they focus on the constitutional limitation on the Legislature’s authority to amend or repeal an initiative statute, and analyze whether Senate Bill 1437 violated the California Constitution.
Section 188 defines malice, an element of murder, and the amendment included additional language to the section. In the opinion, the court argued section 188 was enacted by the legislature in 1872, and was never amended by the electorate, nor have they repealed or reenacted it. “Therefore, section 188 was from its enactment-and remains-a legislative statute.”
Section 189 classifies murders into two degrees (first or second) and lists the predicate felonies for the crime of first degree felony murder. It was enacted by the legislature in 1872, and has been amended only once by the electorate. In 1990, the electorate approved Prop. 115, which was a major reform in criminal law that amended, repealed, and added several statutes. The court argues, however, that this was minor, and it did not repeal or reenact section 189 in its amended form and therefore, section 189 has been and still remains a legislative statute.
Section 1170.95 allows for an eligible defendant convicted of murder to petition for a dismissal of his or her murder conviction, and to be resentenced on any remaining charges. The court argues, “Senate Bill 1437 also enacted section 1170.95, which is itself a legislative statute that neither amended or repealed any initiative statutes (nor any other statutes for that matter).” Thus, the court concludes in saying, “In sum, we find that the Legislature did not violate the constitutional limitation on amending or repealing an initiative statute” due to the fact that SB 1437 sections 188 and 189 and section 1170.95 are not initiative statutes.
In addressing the prosecution’s arguments, the court argues, they are not persuasive. The prosecution argues, “In 1978, California voters passed Proposition 7 and set the penalty for committing first degree and second degree murder. In 1990, California voters passed Proposition 115 which added crimes eligible for felony murder liability.” They argue that Senate Bill 1437 is an unlawful intrusion into the voters’ rights via initiative. “The power of the people via initiative has supreme authority over that of the Legislature.” The Appellate Court disagrees.
The court holds that the prosecution overstates the “initiative authority of the electorate, relative to the legislative authority of the Legislature.” The court says the constitutional limitation on the legislature’s authority is narrow and asserts that SB 1437 amended only two legislative statutes, and repealed none, therefore this constitutional limitation does not apply.
The prosecution is arguing that SB 1437 implicitly amended Proposition 7 and Proposition 115 and the court argues that the prosecution “is mistaken.” In response, the court says, “In short, Proposition 7 increased the punishment for murder, while Senate Bill 1437 amended the elements of murder to establish accomplice liability. Further, Proposition 115 added to the list of predicate offenses for felony murder, while Senate Bill 1437 did not affect any of the predicate felonies.”
The Appellate Court concludes the Legislature did not violate the constitutional limitation on amending or repealing an initiative statute when it passed Senate Bill 1437. Thus, the court reversed the ruling of the trial court in denying the defendant’s petition and the matter has been returned to the court for further proceedings.
Previous arguments of SB 1437’s constitutionality have been brought to the California Appellate Courts. In November 2019, the Fourth District Court of Appeals found SB 1437 constitutional in the Lamoureux and Gooden opinions. Those cases were appealed to the Supreme Court of California which denied review of the cases, leaving the 4DCA’s opinion to be the first case law determining SB 1437 to be constitutional.
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