Filed 9/1/20 P. v. Thompson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058156
v. (Super. Ct. No. C-33433)
MICHAEL LYNNE THOMPSON, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Lance Jensen, Judge. Reversed and remanded with directions.
Cathryn L. Rosciam, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Thomas S. Patterson Assistant Attorney
General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus
Curiae on behalf of Defendant and Appellant.
Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District
Attorney, for Plaintiff and Respondent.
Defendant Michael Lynne Thompson appeals from the lower court’s denial
of his petition for resentencing (Petition) under Penal Code section 1170.95 (section
1170.95).
In 1975, a jury convicted defendant of two counts of first degree murder,
one count of conspiracy to commit murder, one count of simple kidnapping, and one
count of assault by means of force likely to produce great bodily injury. The court
sentenced him to life with the possibility of parole.
In 2019, defendant filed his Petition seeking resentencing on the murder
count pursuant to section 1170.95. The court denied the Petition on the grounds Senate
Bill No. 1437 (Stats. 2018, ch. 1015, § 4; SB 1437), the legislation which added section
1170.95 to the Penal Code, is unconstitutional and unenforceable, because it improperly
amended Proposition 7 and Proposition 115.
Defendant’s briefs, and an amicus curiae brief filed by the Attorney
General in support of defendant (Cal. Rules of Court, rule 8.200(c)(7)), all argue the trial
court erred. The respondent’s brief filed by the district attorney argues the contrary.
We conclude the trial court erred by ruling SB 1437 unconstitutional.
Consequently, we reverse the order denying the Petition, and remand the matter to the
trial court with directions to consider the Petition on the merits.
DISCUSSION
The trial court did not determine whether defendant qualified for relief
under section 1170.95, but instead denied the Petition solely on the ground SB 1437
violated article II, section 10, subdivision (c), of the California Constitution because: (1)
it constituted a legislative amendment of Proposition 7 (which increased the penalty for
first and second degree murder) “without the electorate’s approval,” and (2) it amended
Proposition 115 (which added to the lists of crimes warranting a first degree felony
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murder conviction) without “the required two-thirds majority vote of both house of the
California Legislature . . . .”
Defendant argues the trial court erred by finding SB 1437 unconstitutional.
The Attorney General filed an amicus curiae brief on behalf of defendant, defending the
constitutionality of SB 1437 and arguing it amended neither Proposition 7 nor
Proposition 115. The Orange County District Attorney, representing the People in this
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appeal, contends SB 1437 amended both propositions.
The constitutionality of SB 1437 was upheld by this Division Three in
People v. Cruz (2020) 46 Cal.App.5th 740 (Cruz); People v. Solis (2020) 46 Cal.App.5th
762 (Solis); and (People v. Prado (2020) 49 Cal.App.5th 480 (Prado) and by Division
One of this court in People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270
(Gooden) and People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux).
In all of these cases, the appellate courts agreed with arguments which were
substantially identical to those advanced by defendant and the Attorney General in this
case, and rejected arguments comparable to those advanced by the district attorney here.
We likewise do the same, for the reasons articulated in Cruz, Solis, and Prado.
In Cruz, we analyzed the constitutionality of SB 1437 and concluded:
“[T]he Legislature’s enactment of Senate Bill 1437 has not undone what the voters
accomplished with Proposition 7 or Proposition 115 and therefore the legislation does not
violate the constitution. Senate Bill 1437 addresses the elements of murder, an area
related to but distinct from the penalty for murder set by voters in Proposition 7. Nothing
in the language of Proposition 7 nor its ballot materials evidences an intent by the voters
to prohibit the Legislature from refining the elements of murder, namely limiting
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The district attorney requests we take judicial notice of seven “matters.” Five
involve legislative material relating to SB 1437 and voters’ ballot information on
Propositions 7 and 115. The other two “matters” are the 1977 and 1978 versions of Penal
Code sections 187, 188, and 189. Having received no opposition, we grant the district
attorney’s request. (Evid. Code, §§ 451, 452, 459, subd. (a).)
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accomplice liability under the natural and probable consequences doctrine or felony-
murder rule. Nor did the voters so limit the Legislature with the passage of Proposition
115.” (Cruz, supra, 46 Cal.App.5th at p. 747, italics added.) Thus, we rejected a
contention that SB 1437 alters the punishment for murder set by Proposition 7 by
amending the definition of malice in Penal Code section 188 and by limiting who can be
prosecuted for felony murder under Penal Code section 189. (Cruz, at p. 754.)
We also concluded SB 1437 did not amend Proposition 115, and rejected
an argument that the Legislature was prohibited from addressing accomplice liability for
felony murder in SB 1437 merely because accomplice liability in capital cases had been
addressed in Proposition 115. (Cruz, supra, 46 Cal.App.5th at pp. 759-760.) We
explained SB 1437’s limitations on accomplice liability “in section 189 is an area of law
related to but distinct from accomplice liability in special circumstance murder in section
190.2” and “Senate Bill 1437 did not improperly amend Proposition 115 by adding such
restrictions to felony murder in section 189.” (Id. at p. 760.)
Similarly, in Solis, we determined SB 1437 does not authorize anything
prohibited by Propositions 7 or 115, nor prohibit anything authorized by the voters in
these two initiatives. (Solis, supra, 46 Cal.App.5th at p. 769.) After reviewing the ballot
materials for Proposition 7 (Id. at pp. 776-777), we concluded “Senate Bill No. 1437 is
neither inconsistent with Proposition 7, nor does it circumvent the electorate’s intent.”
(Id. at p. 779.) After considering its text and ballot materials, we reached the same
conclusion regarding Proposition 115. (Solis, at pp. 780-783.)
In upholding SB 1437’s constitutionality in Cruz and Solis, we reached the
same conclusions our Division One colleagues did in Gooden and Lamoureux. In
Gooden, the majority concluded SB 1437 was constitutional, explaining it did not amend
either “Proposition 7 or Proposition 115 because it neither added to, nor took away from,
the initiatives.” (Gooden, supra, 42 Cal.App.5th at p. 275; accord, Lamoureux, supra, 42
Cal.App.5th at p. 251.) As the Gooden court observed, “the voters who approved
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Proposition 7 and Proposition 115 got, and still have, precisely what they enacted—
stronger sentences for persons convicted of murder and first degree felony-murder
liability for deaths occurring during the commission or attempted commission of
specified felony offenses. By enacting Senate Bill 1437, the Legislature has neither
undermined these initiatives nor impinged upon the will of the voters who passed them.”
(Gooden, at p. 289.)
Finally, and most recently, another panel of this Division Three took a
slightly different tack, and upheld SB 1437 because by its very terms it did not amend or
otherwise affect any initiative statutes, and instead only enacted or modified existing
legislative statutes, which it is constitutionally empowered to do. (Prado, supra, 49
Cal.App.5th at p. 483.)
In the end, the arguments advanced by the district attorney in this case are
identical to those we have already rejected in Cruz, Solis, and Prado, and the district
attorney has offered nothing to convince us we were incorrect. We see no reason to
depart from our analyses and conclusions in those cases—and those of our colleagues in
Gooden and Lamoureaux—that SB 1437 is constitutional.
Therefore, for the reasons articulated in Cruz, Solis, and Prado we conclude
the lower court here erred by denying defendant’s section 1170.95 Petition.
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DISPOSITION
The order denying the Petition for resentencing is reversed, and the matter
is remanded to the trial court with directions to consider the Petition on the merits under
section 1170.95. We express no opinion how the court should rule at those proceedings.
THOMPSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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