Document Received by the CA 4Th District Court of Appeal Division 1. Document Received by the CA 4Th District Court of Appeal Division 1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION ONE

THE PEOPLE, Petitioner, v. Case No. D075787 THE SUPERIOR COURT OF SAN DIEGO COUNTY, Superior Court No. Respondent, CR61365 ALLEN GOODEN, Real Party in Interest. THE PEOPLE, Petitioner, v. Case No. D075790 THE SUPERIOR COURT OF SAN DIEGO COUNTY, Superior Court No. Respondent, CR105918 MARTY DOMINGUEZ, Real Party in Interest.

ATTORNEY GENERAL’S AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTIES IN INTEREST

XAVIER BECERRA *NELSON R. RICHARDS Attorney General of California Deputy Attorney General THOMAS S. PATTERSON State Bar No. 246996 Senior Assistant Attorney General 1300 I Street, Suite 125 TAMAR PACHTER P.O. Box 944255 Supervising Deputy Attorney General Sacramento, CA 94244-2550 Telephone: (916) 210-7867 Fax: (916) 324-8835 E-mail: [email protected] Attorneys for the Attorney General as Amicus Curiae in support of Real Party in Interest Document receivedbytheCA4thDistrictCourtofAppealDivision1. 1 TABLE OF CONTENTS

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Amicus Curiae Information ...... 7 Introduction ...... 7 Background ...... 8 I. Proposition 7 Set the Penalties for Murder, Not the Elements of the Crime ...... 8 II. Proposition 115 Added to the List of Predicate Crimes Supporting a Charge of First Degree Murder and the Punishments for Felony First Degree Murder ...... 10 III. S.B. 1437 Changed the Culpability Required to Convict a Person for Murder under the Felony-Murder Rule and the “Natural and Probable Consequences” Doctrine ...... 11 Argument ...... 14 I. S.B. 1437 Does Not Amend Proposition 7 ...... 15 A. Proposition 7 Did Not Set, or Prevent the Legislature from Changing, the Elements of the Crime of Murder...... 15 B. Petitioner Misapprehends Proposition 7’s Scope...... 19 C. Section 1170.95 Does Not Amend Proposition 7...... 22 II. S.B. 1437 Does not Amend Proposition 115 ...... 22 Conclusion ...... 24 Document receivedbytheCA4thDistrictCourtofAppealDivision1. 2 TABLE OF AUTHORITIES

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CASES

Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243 ...... 15

County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196 ...... 18, 23

Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772 ...... 14

In re Oluwa (1989) 207 Cal.App.3d 439 ...... 19, 20

Knight v. Superior Court (2005) 128 Cal.App.4th 14 ...... 18, 19

Lockett v. Ohio (1978) 438 U.S. 586 ...... 16

Mobilepark West Homeowners Assn. v Escondido Mobilepark West (1995) 35 Cal.App.4th 32 ...... 14

Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 ...... 20

People v. Banks (2015) 61 Cal.4th 788 ...... 16, 21

People v. Chiu (2014) 59 Cal.4th 155 ...... 12, 19, 21

People v. Chun (2009) 45 Cal.4th 1172 ...... 11, 12, 18, 19

People v. Cooper (2002) 27 Cal.4th 38 ...... passim Document receivedbytheCA4thDistrictCourtofAppealDivision1. 3 TABLE OF AUTHORITIES (continued) Page

People v. Jenkins (1995) 10 Cal.4th 234 ...... 17

People v. Kelly (2010) 47 Cal.4th 1008 ...... 14, 16

People v. Prettyman (1996) 14 Cal.4th 248 ...... 12, 19

People v. Ruiz (1996) 44 Cal.App.4th 1653 ...... 17

People v. Sumstine (1984) 36 Cal.3d 909 ...... 22

People v. Superior Court (Pearson) (2010) 48 Cal.4th 564 ...... 14, 15, 17

Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473 ...... 14, 21

STATUTES

Code of Civil Procedure § 902.1 ...... 7

Government Code § 12511 ...... 7 Document receivedbytheCA4thDistrictCourtofAppealDivision1. 4 TABLE OF AUTHORITIES (continued) Page

Penal Code § 109.2, subd. (d) ...... 21 § 187 ...... 11, 19, 20 § 188 ...... passim § 188, subd. (a)(1) ...... 11 § 188, subd. (a)(2) ...... 11 § 188, subd. (a)(3) ...... 13, 15 § 189 ...... passim § 189, subd. (e) ...... 13, 15, 21 § 189, subd. (f) ...... 13 § 190 ...... passim §§ 190-190.5 ...... 9, 15, 19 § 190.1 ...... 9 § 190.2 ...... 9, 10, 16 § 190.2, subd. (b) ...... 16 § 190.2, subds. (c)-(d) ...... 10 § 190.3 ...... 9 § 190.4 ...... 9 § 190.5 ...... 9 § 1170.95 ...... 13, 21, 22 § 1170.95, subd. (c)...... 13 § 1170.95, subd. (d)(1) ...... 13 § 1170.95, subd. (d)(2) ...... 22 § 2930 ...... 19

CONSTITUTIONAL PROVISIONS

California Constitution Article 5, § 13 ...... 7

COURT RULES

California Rules of Court Rule 8.200(c)(2) ...... 7 Rule 8.487(d) ...... 7 Rule 8.487(d)(3) ...... 7 Document receivedbytheCA4thDistrictCourtofAppealDivision1. 5 TABLE OF AUTHORITIES (continued) Page

OTHER AUTHORITIES

Ballot Pamp., Gen. Elec. (Nov. 7, 1978) ...... passim

Ballot Pamp., Prim. Elec. (June 5, 1990) ...... 10, 11, 23

Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018 Reg. Sess.) res. ch. 175 ...... 11

Senate Bill 54 (1981-1982 Reg. Sess.) ...... 18

Senate Bill 1437 (2017-2018 Reg. Sess.) ...... passim

Stats. 1981, ch. 404...... 18

Stats. 1981, ch. 404, p. 1593 ...... 18

Stats. 1982, ch. 893, § 4...... 18

Stats. 1982, ch. 949, p. 3438 ...... 18

Stats. 1982, ch. 950, p. 3440 ...... 18

Stats. 2018, ch. 1015...... 12, 13

Stats. 2018, ch. 1015, § 1, subd. (e) ...... 22

Stats. 2018, ch. 1015, § 1, subd. (f) ...... 22

Stats. 2018, ch. 1015, §§ 2-4 ...... 13 Document receivedbytheCA4thDistrictCourtofAppealDivision1. 6

AMICUS CURIAE INFORMATION

This Court issued an order to show cause on May 21, 2019. That order noted that the Attorney General may file an amicus curiae brief pursuant to California Rules of Court rule 8.487(d). Under that rule, the Attorney General’s brief must state his interest and explain how the brief will assist the Court in deciding the matter. (See id. rule 8.487(d)(3) [“The brief must provide the information required by rule 8.200(c)(2)”].) This writ petition addresses the constitutionality of Senate Bill 1437 (2017-2018 Reg. Sess.) (S.B. 1437). The Attorney General is the “chief law officer of the State,” (Cal. Const., art. 5, § 13) who “has charge . . . of all legal matters in which the State is interested” (Gov. Code, § 12511), including defending laws against constitutional challenges. Arguments made by the Attorney General in this capacity will necessarily assist the Court in deciding the matter. (Cf. Code Civ. Proc., § 902.1 [granting the Attorney General the right to intervene in any appeal taken from a judgment declaring a law unconstitutional].) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 7

INTRODUCTION

Before the enactment of S.B. 1437, someone who did not actually kill another person, and who lacked the intent to kill another person, could still be convicted of murder under certain applications of the felony-murder rule and the “natural and probable consequences” doctrine of aider and abettor liability. The Legislature concluded that this was unfair and inconsistent with basic principles of individual culpability. It enacted S.B. 1437 to require more to convict a person of murder. Under S.B. 1437, felony murder and aiding and abetting a murder remain crimes. But now, to be convicted of murder, it is not enough to have participated in a felony that results in a death. Instead, a participant in a felony in which a person dies must have either killed the victim, aided the actual killer with the intent to kill the victim, or acted as a major participant in the commission of the felony with reckless indifference to human life. The petitions in these consolidated cases seek to invalidate S.B. 1437, arguing that it is an unauthorized amendment of two ballot initiatives, Proposition 7 and Proposition 115. But neither initiative addressed the felony-murder rule, the “natural and probable consequences” doctrine, or the mens rea necessary for a murder conviction. Because S.B. 1437 did not amend either ballot initiative, the petitions should be denied. BACKGROUND

I. PROPOSITION 7 SET THE PENALTIES FOR MURDER, NOT THE ELEMENTS OF THE CRIME

Proposition 7, known as the Briggs Initiative, increased the penalties for first and second degree murder; it did not alter the elements of the crime. “The purpose of the Briggs Initiative was to substantially increase the punishment for persons convicted of first and second degree murder.” (People v. Cooper (2002) 27 Cal.4th 38, 42.) Before Proposition 7 was Document receivedbytheCA4thDistrictCourtofAppealDivision1. 8

enacted, a person convicted of first degree murder could be sentenced to death, life without the possibility of parole, or life with possibility of parole, with parole eligibility starting at year seven. (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 32, analysis of legislative analysis.) A person convicted of second degree murder could be sentenced to a maximum of seven years, which could be reduced by up to a one-third for good behavior. (Id.) Proposition 7 increased penalties for murder by amending Penal Code sections 190 through 190.5. (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at pp. 33, 41-45, Prop. 7 §§ 1-12 [Prop. 7].) Under amended section 190, a conviction for first degree murder carries a sentence of death, life without parole, or 25 years to life; and a conviction for second degree murder carries a sentence of 15 years to life. (Prop. 7 § 2, adding new Penal Code § 190.) Other new sections built upon section 190. Section 190.1 set phases for death penalty cases; section 190.2 set the special circumstances in which a person convicted of first degree murder could be punished by death or life without parole; section 190.3 set the procedure for imposing the death penalty upon a person convicted of special-circumstance first degree murder; section 190.4 set the procedure for determining whether a murder included a special circumstance; and section 190.5 disqualified from the death penalty those who were less than 18 years old when they committed their crime. (Prop. 7 §§ 4, 6, 8, 10, 12.) Proponents touted the initiative as a cure to the “weak and ineffective” death penalty bill enacted by the Legislature the year before. (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) Invoking Charles Manson, Sirhan Sirhan, the Zodiac Killer, the Skid-Row Slasher, and the Hillside Strangler, they argued that “Proposition 7 will give every Californian the protection of the nation’s toughest, most effective death penalty law.” (Ibid.) Opponents of the law argued that it was “written carelessly,” Document receivedbytheCA4thDistrictCourtofAppealDivision1. 9

creating the possibility that “a man or a woman could be sentenced to die for lending another person a screwdriver to use in a burglary, if the other person accidently killed someone during the burglary.” (Id. at p. 35.) In response, proponents assured the voters that a “person must have intentionally aided in the commission of a murder to be subject to the death penalty under this initiative.” (Ibid., capitalization omitted.) Proposition 7 did not authorize the Legislature to amend its provisions without voter approval. (See Prop. 7 §§ 1-12; Cooper, supra, 27 Cal.4th at p. 44.) II. PROPOSITION 115 ADDED TO THE LIST OF PREDICATE CRIMES SUPPORTING A CHARGE OF FIRST DEGREE MURDER AND THE PUNISHMENTS FOR FELONY FIRST DEGREE MURDER

Proposition 115, the Crime Victims Justice Reform Act, offered “comprehensive reforms . . . to restore balance and fairness to [California’s] criminal justice system.” (Ballot Pamp., Prim. Elec. (June 5, 1990), at pp. 33, 65-69 [Prop. 115]; Prop. 115 § 1(a).) In addition to other significant changes, and as relevant here, the law amended Penal Code sections 189 and 190.2 Specifically, Proposition 115 amended section 189 to add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a first degree murder charge. (Prop. 115 § 9.) It amended section 190.2 to require a sentence of death or life without the possibility of parole in two situations where the defendant is not the actual killer: first, if the defendant aids or supports a killer and acts with the intent to kill; and second, if the defendant is a major participant in certain crimes, such as robbery, where a death occurs, and acts with reckless indifference to human life. (Prop. 115, § 10, Pen. Code, § 190.2, subds. (c)-(d).)1

1 All further undesignated references are to the Penal Code. Document receivedbytheCA4thDistrictCourtofAppealDivision1. 10

Ballot arguments for the initiative did not address these specific changes. (See Ballot Pamp., Prim. Elec. (June 5, 1990), at pp. 34-35.) The proponents wrote generally about the need to enact “tougher laws” to keep people “safe and free from fear.” (Id. at p. 34, capitalization omitted.) Proposition 115 permits the Legislature to amend its terms by statutes passed by a two-thirds vote in each house of the Legislature. (Prop. 115 § 30.) III. S.B. 1437 CHANGED THE CULPABILITY REQUIRED TO CONVICT A PERSON FOR MURDER UNDER THE FELONY- MURDER RULE AND THE “NATURAL AND PROBABLE CONSEQUENCES” DOCTRINE

In 2017, the Legislature adopted a continuing resolution calling for changes to the felony-murder rule and the “natural and probable consequences” doctrine. (Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018 Reg. Sess.) res. ch. 175.) These theories of liability subject a defendant to liability for murder under a lesser mens rea standard. Generally, malice is an essential element of the crime of murder. (§ 187.) It may be either express or implied. It is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188, subd. (a)(1).) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(2).) Implied malice has “both a physical and a mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component is the requirement that the defendant knows that his conduct endangers the life of another and acts with a conscious disregard for life.” (People v. Chun (2009) 45 Cal.4th 1172, 1181, internal citation, quotation marks, and ellipses omitted.) The felony-murder rule, as it existed before 2019, made “a killing while committing certain felonies murder without the necessity of further Document receivedbytheCA4thDistrictCourtofAppealDivision1. 11

examining the defendant’s mental state.” (Id. at p. 1182.) Felony murder could either be in the first or second degree. First degree felony murder was “a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery.” (Ibid.) Second degree felony murder was “an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189.” (Ibid., quotation marks omitted; see also id. at p. 1184 [holding that the second-degree felony-murder rule is based on “section 188’s abandoned and malignant heart language”].) Similarly, the “natural and probable consequences” doctrine, as it existed before 2019, made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime)”—including murder—“committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254.) “Because the nontarget offense [was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because the person could have foreseen the commission of the nontarget crime.” (People v. Chiu (2014) 59 Cal.4th 155, 164.) “An aider and abettor’s liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule.” (Id. at p. 166.) In 2018, the Legislature adopted, and the Governor signed, S.B. 1437. (Stats. 2018, ch. 1015.) The Legislature declared that “[r]eform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual.” (Id., § 1.) The new law was designed “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 Document receivedbytheCA4thDistrictCourtofAppealDivision1. 12

was not a major participant in the underlying felony who acted with reckless disregard for human life.” (Ibid.) To that end, the Legislature amended Penal Code sections 188 and 189 and added new section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.) S.B. 1437 amended section 188 to provide that malice may not “be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) “[T]o be convicted of murder, a principal in a crime shall act with malice,” except as provided in the newly added subdivision (e) of section 189. (Ibid.) That new subdivision narrows the felony-murder rule and the “natural and probable consequences” doctrine. Those theories may only be used to charge murder in the commission of a felony when a participant in the underlying felony (1) is the actual killer; (2) is not the actual killer but, with intent to kill, aids or abets a first degree murder; or (3) is a major participant in the underlying felony and acts with reckless indifference to human life. (§ 189, subd. (e).)2 Section 1170.95 creates a procedure to vacate prior convictions for felony murder or murder under the “natural and probable consequences” doctrine that do not meet the new criteria. Petitioners who make a prima facie showing that they are entitled to relief will receive “a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been sentenced[.]” (§ 1170.95, subds. (c), (d)(1).)

2 These new limitations do “not apply to a defendant when the victim is a peace officer who was killed while in the course of his or her duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties.” (§ 189, subd. (f).) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 13

ARGUMENT

S.B. 1437 did not amend either Proposition 7 or Proposition 115. A statute amends an initiative when it is “‘designed to change the . . . initiative by adding or taking from it some particular provision’” or by “prohibit[ing] what the initiative authorizes, or authoriz[ing] what the initiative prohibits.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571, quoting Cooper, supra, 27 Cal.4th at p. 44.) “But this does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative’s provisions, is necessarily an amendment for these purposes.” (Ibid.) “The Legislature remains free to address a related but distinct area or a matter that an initiative measure does not specifically authorize or prohibit.” (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026 (Kelly), internal citations and quotation marks omitted.) Courts will not invalidate a law enacted by the Legislature that does not impinge on “what voters contemplated.” (Pearson, supra, 48 Cal.4th at p. 571.) “The voters should get what they enacted, not more and not less.” (Ibid., quotation marks and brackets omitted.)3

3 This Court should decline Petitioner’s invitation to adopt a legal standard for determining whether a statute amends an initiative that the Supreme Court has questioned and never applied. (See Petn. 34 [all citations to the petition filed in People v. Superior Court (Gooden) (D075787)], relying on Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473 (Quackenbush)).) In Quackenbush, supra, the court of appeal held in part that an amendment is something that changes an initiative’s “scope and effect.” (64 Cal.App.4th at p. 1486; see also Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776-777; Mobilepark West Homeowners Assn. v Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 40.) In Kelly, the Supreme Court called this an “expansive test,” and questioned its viability “in the context of a constitutional provision that restricts legislative amendment of an initiative statute.” (See Kelly, supra, 47 Cal.4th at p. 1026 & fn. 18.) The “scope and effect” standard is nebulous, potentially undermining both (continued…) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 14

Initiatives are subject to ordinary rules of statutory construction. (Pearson, supra, 48 Cal.4th at p. 571.) Courts “first consider the initiative’s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole.” (Ibid.) “If the language is not ambiguous, [courts] presume the voters intended the meaning apparent from that language, and [they] may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language.” (Ibid.) “If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot measure.” (Ibid.) I. S.B. 1437 DOES NOT AMEND PROPOSITION 7 Proposition 7 set the penalties to be imposed after a murder conviction, not the elements of the crime of murder. S.B. 1437 changed the elements that must be proven to convict for the crime of murder, not the penalties upon conviction. (§ 188, subd. (a)(3); § 189, subd. (e).) This change did not amend Proposition 7. A. Proposition 7 Did Not Set, or Prevent the Legislature from Changing, the Elements of the Crime of Murder.

The voters’ intent in enacting Proposition 7 is clear: to set minimum penalties for a conviction of murder, by amending sections 190 through 190.5. (See Prop. 7 §§ 1-12.) By contrast, S.B. 1437 changed the minimum intent required to sustain a murder conviction, by amending sections 188 and 189. S.B. 1437 governs what is necessary to convict a person of murder; Proposition 7 governs the penalties that must be imposed

(…continued) the policy that limitations on the Legislature’s power “are to be strictly construed,” and the “strong presumption of constitutionality that supports the Legislature’s acts.” (See Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253, 1255.) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 15

upon conviction. While these two concepts are related, they are distinct— “‘the definition of crimes generally has not been thought automatically to dictate what should be the proper punishment.’” (People v. Banks (2015) 61 Cal.4th 788, 801, quoting Lockett v. Ohio (1978) 438 U.S. 586, 602.) And the Legislature is not barred from passing laws in areas related to but distinct from those addressed in an initiative. (Kelly, supra, 47 Cal.4th at p. 1025-1026.) S.B. 1437’s changes to the elements of murder thus did not amend Proposition 7. The ballot materials confirm this reading of Proposition 7. The measure’s focus was on punishment, in particular, the death penalty. The proponents called the law “the nation’s toughest, most effective death penalty law.” (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) In their arguments in support of the measure, they invoked criminals who killed intentionally, including Charles Manson and the Zodiac Killer. (Ibid.) Felony murder and the “natural and probable consequences” doctrine did not factor into the arguments or legislative analysis. (See id. at pp. 32-35.) Mens rea came up only where the proponents assured the voters that intent to aid in the commission of a murder was required to impose a sentence of life without parole or death on a defendant who was not the actual killer. (Id. at p. 35.) The related provision, former section 190.2, subdivision (b), authorized the death penalty for any person “whether or not the actual killer found guilty of intentionally aiding . . . any actor in the commission of murder in the first degree[.]” (Prop. 7, § 6.)4 Nothing in S.B. 1437 changes that punishment. Governing caselaw demonstrates that Proposition 7 did not restrict the Legislature’s authority to enact S.B. 1437. For example, in Cooper, supra,

4 Current subdivision (c) of section 190.2 is substantially similar to the version of subdivision (b) enacted by Proposition 7. Document receivedbytheCA4thDistrictCourtofAppealDivision1. 16

the Supreme Court considered whether a statute limiting presentence conduct credits available to a defendant convicted of second degree murder and sentenced under section 190 improperly amended Proposition 7. (27 Cal.4th at pp. 40-43.) As amended by Proposition 7, section 190 permitted a reduction in sentence under an article of the Penal Code that authorized reductions based on post-sentence prison conduct credits. (Id. at p. 46.) Finding the voters’ intent regarding presentence credits ambiguous, the Court held that “because former section 190 does not specifically authorize or prohibit presentence conduct credits,” the Legislature retained authority to regulate them. (Id. at p. 47.) Section 190 similarly does not authorize or prohibit the intent requirements enacted by S.B. 1437.5 In Pearson the Supreme Court held that Proposition 115’s limitation on discovery in criminal trials did not preclude the Legislature from enacting a statute permitting broader discovery in post-conviction proceedings. (Pearson, supra, 48 Cal.4th at p. 567.) The Court concluded that that the new law augmented Proposition 115 by providing for discovery that the initiative did not. (Id. at p. 570.) But recognizing the differences in the goals of criminal trials and habeas corpus proceedings, the Court concluded that the voters who enacted Proposition 115 did not intend to provide for or prohibit discovery in habeas corpus matters. (Id. at pp. 571-573.) Similar reasoning applies here. Just as criminal trials are

5 Even in the area of sentencing, courts have recognized that Proposition 7 did not limit the Legislature’s authority. (See People v. Jenkins (1995) 10 Cal.4th 234, 1230-1231 & fn. 7 [holding that neither section 190 nor any other provision of Proposition 7 “indicates that the electorate intended to preclude a murderer from receiving a total sentence that is greater than the term provided under section 190”]; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1660-1661 [following Jenkins].) These cases show that Proposition 7 set only minimum penalties for murder and does not otherwise limit the Legislature’s authority. Document receivedbytheCA4thDistrictCourtofAppealDivision1. 17

distinct from habeas corpus proceedings, the elements of a crime are distinct from the punishment for the crime. An initiative addressing one does not prevent the Legislature from addressing the other. A related principle led the Court of Appeal to find that a legislative enactment did not amend an initiative in Knight v. Superior Court (2005) 128 Cal.App.4th 14. There, Proposition 22 prevented the Legislature from recognizing same-sex marriages performed in other jurisdictions. (Id. at p. 20.) The Legislature subsequently amended the domestic partnership laws to give domestic partners the same legal rights and obligations as married couples, subject to some limitations. (Id. at p. 21.) The court held that the new law did not amend Proposition 22 because the initiative did not address the domestic partnership laws, which predated Proposition 22. (Id. at p. 26.) The court declined to read “undisclosed objectives” into the initiative that “the electorate was not given the opportunity to vote on.” (Ibid.) Similarly here, this Court should decline to read into Proposition 7 undisclosed objectives to restrict legislative authority to amend sections 188 and 189.6

6 In addition to this caselaw, the history of unchallenged amendments to sections 188 and 189 since Proposition 7 was enacted in 1978 shows that the initiative did not prevent the Legislature from amending those sections. (See Stats. 1981, ch. 404, p. 1593; Stats. 1982, ch. 893, § 4; Stats. 1982, ch. 949, p. 3438; Stats. 1982, ch. 950, p. 3440.) For instance, Senate Bill 54 (1981-1982 Reg. Sess.) amended the definition of malice in section 188 and the definition of deliberate and premeditated in section 189. (Stats. 1981, ch. 404, Leg. Counsel’s Digest & §§ 6-7.) No one argued that Proposition 7 prohibited those changes. (See County of San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 212 [considering history of legislative amendments when rejecting argument that initiatives prohibited such amendment].) Nor has Proposition 7 proved a consideration when courts discuss the limits or elements of felony murder or the “natural and probable consequences” doctrine. For instance, in Chun, supra, 45 Cal.4th 1172, the (continued…) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 18

B. Petitioner Misapprehends Proposition 7’s Scope. Petitioner contends that the voters incorporated sections 187, 188, and 189 into Proposition 7. (See Petn. at pp. 30-33.) This conclusion has no support in the text, which does not amend those statutes. (See Prop. 7, §§ 1-12.) And it has no support in the ballot materials, which do not discuss those sections. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at pp. 32-35.) Because voters did not have an opportunity to consider this objective, it is not part of the initiative. (See Knight, supra, 128 Cal.App.4th at p. 26.) Despite the lack of any persuasive evidence, Petitioner contends that by amending sections 190 through 190.5, which mention first and second degree murder, the voters implicitly incorporated sections 187, 188, and 189 into Proposition 7. (Petn. 32-33.) Petitioner relies on In re Oluwa (1989) 207 Cal.App.3d 439 for support. (Id. at p. 32.) In that case, the court addressed whether a prisoner could use work credits to reduce his 15- years-to-life sentence for second degree felony murder. (Oluwa, supra, 207 Cal.App.3d at p. 442.) Proposition 7 added language to section 190 providing that the article in the Penal Code starting with section 2930

(…continued) Supreme Court upheld the second degree felony-murder rule against a challenge that it was a “a judicially created doctrine with no statutory basis.” (Id. at p. 1180.) Had Proposition 7 somehow codified that rule, the Court’s analysis of its history would have been much shorter. (See id. at pp. 1180-1188 [not mentioning Proposition 7 in historical analysis of statutory basis for second degree felony murder]; see also, e.g., Prettyman, supra, 14 Cal.4th at pp. 262-270 [no mention of Proposition 7 imposing limitations when holding that 1992 jury instruction requiring trial courts to identify an uncharged target offense should have been used in “natural and probable consequences” murder case]; Chiu, supra, 59 Cal.4th at pp. 165- 167 [no mention of Proposition 7 imposing limitations when holding that holding that “a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine”].) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 19

governed custody credits. (Id. at p. 445.) As amended, section 190 stated that the referenced article “shall apply to reduce any minimum term of 25 or 15 years in state prison imposed pursuant to this section,” and that “such person shall not otherwise be released on parole prior to such time.” (Prop. 7, § 2.) The prisoner requested that his sentence be reduced based on a section added to that article after Proposition 7 was enacted. (Ibid.). The court rejected his request, relying on the principle of statutory interpretation that “where a statute adopts by specific reference the provisions of another statute . . . such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified.” (Ibid., quoting Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59.) It distinguished the “cognate rule . . . that were the reference is general instead of specific, such as a reference to a system or body of law relating to the subject at hand, the referring statute takes the law or laws referred . . . as they may be changed from time to time[.]” (Ibid., quoting Palermo, supra, 32 Cal.2d at pp. 58-59.) Here, the reference in Proposition 7 is quite different. It mentions “person[s] guilty of murder in the first degree” and “person[s] guilty of murder in the second degree.” (See Prop. 7, § 2.) It does not specifically identify sections 187, 188, and 189, state that they “shall apply,” or that they “shall not otherwise be” changed. (See ibid.) These references are exactly the sort of general references that are subject to amendment. (See Palermo, supra, 32 Cal.2d at pp. 58-59.) They cannot be used to prevent the Legislature from acting. (See Cooper, supra, 27 Cal.4th at p. 46 [distinguishing Oluwa and upholding law providing for presentence conduct credits because provisions referenced in Proposition 7 addressed only postsentence credits].) Petitioner also contends that S.B. 1437 goes to the “heart of Proposition 7.” (See Petn. at p. 43.) But S.B. 1437 does not reduce the Document receivedbytheCA4thDistrictCourtofAppealDivision1. 20

penalty for the murderers who were the focus of Proposition 7—those who act with the intent to kill, like Charles Manson and the Zodiac Killer. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) Nor does it weaken the “nation’s toughest, most effective death penalty law.” (See ibid.)7 Petitioner mistakenly relies on Quackenbush. (Petn. at pp. 34-35.) In that case, the voters adopted Proposition 103, a comprehensive set of rules designed to regulate the insurance industry and protect consumers. (Quackenbush, supra, 64 Cal.App.4th at pp. 1478-1479.) The initiative rolled back insurance rates, made the Insurance Commissioner an elected office, and vested it with authority to “adopt a ratemaking formula to implement the rate rollback requirement.” (Id. at pp. 1479, 1486.) The Legislature then enacted a statute requiring that certain costs, such as premium taxes and commissions, be included in insurer’s rollback obligations, and prohibiting insurers from seeking reimbursement for those costs from the State. (Id. at p. 1480.) The Court held that statute amended Proposition 103 because it restricted the Commissioner’s discretion to determine how those costs should be treated. (Id. at p. 1486.) Section 1170.95 is different; it leaves intact Proposition 7’s sentencing scheme. (See id. at pp. 1486-1487.)

7 In addition, a large subset, if not all, of the people now excluded from liability under the felony-murder rule or the “natural and probable consequences” doctrine by subdivision (e) of section 189 were not eligible for death before S.B. 1437 was enacted. (See § 109.2, subds. (d); Banks, supra, 61 Cal.4th at p. 332 [“felony-murder participants [are] eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions”]; see also Chiu, supra, 59 Cal.4th at p. 890 [“a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine”].) Document receivedbytheCA4thDistrictCourtofAppealDivision1. 21

C. Section 1170.95 Does Not Amend Proposition 7. Petitioner also argues that section 1170.95 amends Proposition 7 because it “allows someone who was convicted of murder, lawfully and as a matter of historical fact, to secure a sentence less than that mandated in section 190[.]” (Petn. at pp. 48-49.) Sentencing did motivate the Legislature, in part, to enact S.B. 1437. (Stats. 2018, ch. 1015, § 1, subd. (f).) But the lawmakers’ concern was not that murderers are, or had been, sentenced too harshly; rather, it was that those who do not meet the amended mens rea requirements set forth in sections 188 and 189 should not be, or should not have been, convicted of murder. (See Stats. 2018, ch. 1015, § 1, subd. (e) [discussing “culpability of the individual].) Section 1170.95 addresses that concern without amending Proposition 7. It creates a procedure for vacating murder convictions of people who had not themselves killed anyone, acted with the intent to kill, or acted as a major participant in a felony with reckless indifference to human life. (§ 1170.95, subd. (d)(2).) Anyone who has a conviction vacated would no longer be “guilty of murder,” and section 190’s mandatory penalties would no longer apply. (Cf. People v. Sumstine (1984) 36 Cal.3d 909, 920 [“When the issuance of a writ of habeas corpus vacates the underlying conviction, the judgment ceases to exist for all purposes”].) II. S.B. 1437 DOES NOT AMEND PROPOSITION 115 Although Proposition 115 is different from Proposition 7 in that it amended the crime of murder in section 189 instead of the punishment for murder, the analysis is the same as the analysis of Proposition 7. (Prop. 115, § 9.) Proposition 115 added kidnapping, train wrecking, sodomy, oral copulation, and forcible sexual penetration to the list of predicate felonies for first degree murder in section 189. It did not restrict Document receivedbytheCA4thDistrictCourtofAppealDivision1. 22

the Legislature’s authority to change the culpability requirement to convict for murder. S.B. 1437 thus did not amend Proposition 115. Petitioner’s arguments to the contrary lack merit. (See Petn. at p. 49- 53.) Petitioner contends that Proposition 115, by reenacting section 189 in its entirety, implicitly reenacted liability for the five new offenses under the felony-murder rule and “natural and probable consequences” doctrine. (See Petn. at p. 50.) Technical reenactment does not, however, prevent the Legislature from amending portions of a reenacted section that are not “integral to accomplishing the electorate’s goals in enacting the initiative” absent “other indicia . . . that the voters reasonably intended to limit the Legislature’s ability to amend that part of the statute.” (County of San Diego, supra, 6 Cal.5th at p. 214 [“When technical reenactments are required under article IV, section 9 of the Constitution—yet involve no substantive change in a given statutory provision—the Legislature in most cases retains the power to amend the restated provision through the ordinary legislative process”].) Petitioner cites this standard but misapplies it. (See Petn. at p. 49.) Proposition 115 added to the list of predicate crimes that can form the basis of a first degree murder conviction. (Prop. 115, § 9.) Although, at the time, such a conviction could have been based on the felony-murder rule or the “natural and probable consequences” doctrine, Proposition 115 did not address either of those theories. Nor, more importantly, did it address the mental state necessary to establish criminal liability under either theory. Nothing in the ballot materials discussed the felony-murder rule, the “natural and probable consequences” doctrine, or the mental state for murder. The Legislative Analyst’s analysis explains that the “proposal makes numerous significant and complex changes in criminal law and in the judicial procedures that must be followed in criminal cases.” (Ballot Pamp., Prim. Elec. (June 5, 1990), at p. 32.) The discussion of those Document receivedbytheCA4thDistrictCourtofAppealDivision1. 23

changes does not mention the felony-murder rule or the “natural and probable consequences” doctrine. (Id. at pp. 32-33.) Nor do the arguments by proponents or opponents of the initiative. (Id. at pp. 34-35.) Accordingly, S.B. 1437 did not amend Proposition 115. CONCLUSION

For the foregoing reasons, the petition for writ of mandate should be denied.

Dated: July 12, 2019 Respectfully submitted,

XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General TAMAR PACHTER Supervising Deputy Attorney General

/s/ Nelson Richards NELSON R. RICHARDS Deputy Attorney General Attorneys for the Attorney General as Amicus Curiae in support of Real Party in Interest Document receivedbytheCA4thDistrictCourtofAppealDivision1. 24

CERTIFICATE OF COMPLIANCE

I certify that the attached Attorney General’s Amicus Curiae Brief in Support of Real Parties in Interest uses a 13 point Times New Roman font and contains 5,364 words.

Dated: July 12, 2019 XAVIER BECERRA Attorney General of California

/s/ Nelson Richards NELSON R. RICHARDS Deputy Attorney General Attorneys for the Attorney General as Amicus Curiae in support of Real Party in Interest

Document receivedbytheCA4thDistrictCourtofAppealDivision1. 25 Document received by the CA 4th District Court of Appeal Division 1. Document received by the CA 4th District Court of Appeal Division 1.