People v. Rosbrugh CA4/2

Filed 9/11/20 P. v. Rosbrugh CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073776

v. (Super.Ct.No. FWV05910)

CODY A. ROSBRUGH, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish,

Judge. Reversed and remanded with directions.

Patricia L. Brisbois, 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.

Jason Anderson, District Attorney, and James R. Secord, Deputy District

Attorney, for Plaintiff and Respondent.

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 I

INTRODUCTION

In 1994, defendant and appellant Cody A. Rosbrugh and a junior accomplice

robbed a mini mart in Rancho Cucamonga, and in the process, stabbed to death a store

clerk. The clerk’s wife was also stabbed. However, she survived. A jury convicted

defendant of first degree murder (Pen. Code,1 § 187, subd. (a); count 1), along with

special circumstance allegations and three other felonies. Defendant was sentenced to

serve a term of life without the possibility of parole, plus a consecutive term of seven

years.

In 2019, defendant petitioned for resentencing pursuant to section 1170.95, which

was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-2018

Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) and allows individuals convicted of

felony-murder or murder under the natural and probable consequences doctrine to

petition the superior court to vacate the conviction based on Senate Bill 1437’s changes

to the definition of the crime of murder. Without reaching the merits of the petition, the

trial court granted the People’s motion to strike defendant’s petition for resentencing,

finding that Senate Bill 1437 unconstitutionally amended Proposition 7 (Ballot Pamphlet,

Gen. Elec. (Nov. 7, 1978) text of Prop. 7 (Proposition 7)) and Proposition 115 (Ballot

Pamphlet, Primary Elec. (June 5, 1990) text of Prop. 115 (Proposition 115)).

1 All future statutory references are to the Penal Code unless otherwise stated.

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 Defendant appeals from the order granting the People’s motion to strike his

petition to vacate his murder conviction and obtain resentencing under the procedures

established by Senate Bill 1437. Defendant argues the trial court erred in finding Senate

Bill 1437 unconstitutional. The San Bernardino County District Attorney (District

Attorney) attacks the constitutionality of Senate Bill 1437 on numerous grounds,

including that it was an invalid attempt to amend Propositions 7 and 115, it violates the

separation of powers doctrine, and it violates the rights of crime victims to finality in

judgments. The Attorney General submitted an amicus brief defending the

constitutionality of Senate Bill 1437.

Our colleagues in Division One of this district have considered and rejected the

arguments raised in this appeal in a pair of companion decisions—People v. Superior

Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden) and People v. Lamoureux (2019)

42 Cal.App.5th 241 (Lamoureux)—and concluded that Senate Bill 1437 is constitutional.

Three other Courts of Appeal have reached the same conclusion. (See People v. Bucio

(2020) 48 Cal.App.5th 300, 307; People v. Solis (2020) 46 Cal.App.5th 762, 769 (Solis);

People v. Cruz (2020) 46 Cal.App.5th 740, 747 (Cruz); People v. Smith (2020) 49

Cal.App.5th 85, 91; People v. Prado (2020) 49 Cal.App.5th 480, 491-492 (Prado).) This

court recently followed suit in People v. Johns (2020) 50 Cal.App.5th 46, 54-55 (Johns),

which involved a conviction based on the felony-murder rule.

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 We agree with defendant, the Attorney General, and the foregoing cases that

Senate Bill 1437 is constitutional. We therefore reverse the order of the trial court and

remand the case for further proceedings in accordance with section 1170.95.

II

PROCEDURAL BACKGROUND

On August 30, 1995, a jury found defendant guilty of first degree murder (§ 187,

subd. (a); count 1), with special circumstance allegations that the murder was committed

during the commission of a robbery (§ 190.2, subd. (a)(17)(i)) and during the commission

of a burglary (§ 190.2, subd. (a)(17)(vii)); attempted murder (§§ 187, subd. (a) & 664;

count 2); robbery (§ 211; count 3); and burglary (§ 459; count 4). The trial court

sentenced defendant to serve a term of life without the possibility of parole for count 1,

plus a consecutive term of seven years for count 2. The court stayed imposition of

sentence for counts 3 and 4 under section 654.

Defendant appealed, asserting as his sole ground for relief that the trial court erred

when it declined to instruct the jury “that he could not be found guilty of murder on a

felony murder theory unless he formed the intent to commit the underlying felony before

his confederate committed the murder.” On May 8, 1997, this court rejected defendant’s

claim, affirmed the judgment, and ordered a clerical correction to the abstract of

judgment. (People v. Rosbrugh (May 8, 1997, E017073) [nonpub. opn.].)

On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.),

which amended the felony-murder rule and the natural and probable consequences

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doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate

Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or

murder under a natural and probable consequences theory . . . [to] 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 . . . .” (§ 1170.95, subd. (a).)

On January 9, 2019, defendant in propria persona filed a petition for resentencing

pursuant to section 1170.95, requesting that his murder conviction be vacated based on

changes to sections 188 and 189, as amended by Senate Bill 1437, and asking to be

resentenced.

On March 7, 2019, the District Attorney filed an informal response, arguing

defendant failed to state a prima facie case for relief. On this same day, the District

Attorney also filed a motion to strike defendant’s petition based on the unconstitutionality

of Senate Bill 1437 and resulting statutes.

On September 5, 2019, defendant’s appointed counsel filed opposition to the

District Attorney’s motion to strike.

On September 13, 2019, the trial court heard oral argument on defendant’s petition

for resentencing. On this same say, the court also issued a written decision, granting the

District Attorney’s motion to strike defendant’s petition. The court determined that

Senate Bill 1437 unconstitutionally amended Propositions 7 and 115. The court did not

address the District Attorney’s alternative claims that Senate Bill 1437 violated

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Proposition 9 (Marsy’s Law) (Voter Information Guide, Gen. Elec. (Nov. 4, 2008) text of

Prop. 9 (Proposition 9)) and the separation of powers doctrine.

On September 24, 2019, defendant filed a notice of appeal from the trial court’s

order finding Senate Bill 1437 unconstitutional.

III

DISCUSSION

Defendant contends the trial court erred when it found Senate Bill 1437

unconstitutionally amended Propositions 7 and 115. He therefore asserts the order

striking his petition for resentencing must be reversed. The District Attorney defends the

court’s decision and also argues that Senate Bill 1437 violates Marsy’s Law and the

separation of powers doctrine.

Consistent with the decisions in the cases previously noted, we conclude the

Legislature did not amend Proposition 7 or Proposition 115 through its enactment of

Senate Bill 1437, and that Senate Bill 1437 does not violate Marsy’s Law or separation of

powers principles.

A. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019, “limit[ed] accomplice

liability under the natural and probable consequences doctrine and the felony-murder

rule.” (Cruz, supra, 46 Cal.App.5th at p. 755; Lamoureux, supra, 42 Cal.App.5th at

p. 246; People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,

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S258234.2) Prior to Senate Bill 1437’s enactment, under the felony-murder rule “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.” (Lamoureux, at pp. 247-248; People v. Chun (2009) 45 Cal.4th 1172,

1182.) “‘The felony-murder rule impute[d] the requisite malice for a murder conviction

to those who commit[ted] a homicide during the perpetration of a felony inherently

dangerous to human life.’” (People v. Chun, at p. 1184; Lamoureux, at p. 248.)

Similarly, under the natural and probable consequences doctrine, a defendant was

“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.” (Lamoureux, supra, 42 Cal.App.5th at p. 248; People v. Chiu (2014) 59 Cal.4th

155, 161-162.) “‘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 a reasonable person could have foreseen the commission of the

nontarget crime.’” (People v. Flores (2016) 2 Cal.App.5th 855, 867.)

Senate Bill 1437 was enacted 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

2 Pursuant to California Rules of Court, rule 8.1115, we may rely on cases
pending before the Supreme Court as persuasive authority while review is pending. (Cal.
Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)

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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).) “Senate Bill No. 1437

achieves these goals by amending section 188 to require that a principal act with express

or implied malice and by amending section 189 to state that a person can only be liable

for felony murder if (1) the ‘person was the actual killer’; (2) the person was an aider or

abettor in the commission of murder in the first degree; or (3) the ‘person was a major

participant in the underl[y]ing felony and acted with reckless indifference to human

life.’” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020,

S260410; People v. Tarkington (2020) 49 Cal.App.5th 892, 896; People v. Verdugo

(2020) 44 Cal.App.5th 320, 325-326, review granted Mar. 18, 2020, S260493.)

Senate Bill 1437 also added section 1170.95. That provision creates a procedure

for offenders previously convicted of felony murder or under a natural and probable

consequences theory to obtain the benefits of these changes retrospectively. Such

convicts may petition for relief in the court in which they were convicted. If the

petitioner makes a prima facie showing of entitlement to having his or her prior

conviction vacated, the petitioner is entitled to 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 . . . previously been

sentenced.” (§ 1170.95, subds. (c), (d)(1).) “If petitioner is entitled to relief pursuant to

this section, murder was charged generically, and the target offense was not charged, the

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petitioner’s conviction shall be redesignated as the target offense or underlying felony for

resentencing purposes.” (§ 1170.95, subd. (e).)

B. Legal principles

“We begin with the fundamental proposition that in resolving a legal claim, a court

should speak as narrowly as possible and resort to invalidation of a statute only if doing

so is necessary.” (People v. Kelly (2010) 47 Cal.4th 1008, 1047 (Kelly); see Dittus v.

Cranston (1959) 53 Cal.2d 284, 286 [“Courts should exercise judicial restraint in passing

upon the acts of coordinate branches of government”].) Indeed, there is a strong

presumption favoring the constitutionality of the Legislature’s acts (Amwest Sur. Ins. Co.

v. Wilson (1995) 11 Cal.4th 1243, 1253), and “courts will presume a statute is

constitutional unless its unconstitutionality clearly, positively, and unmistakably appears;

all presumptions and intendments favor its validity.” (People v. Falsetta (1999) 21

Cal.4th 903, 912-913; Dittus v. Cranston, at p. 286 [“the presumption is in favor of

constitutionality, and the invalidity of the legislation must be clear before it can be

declared unconstitutional”].)

While the Legislature may freely amend or repeal a statute enacted by the

Legislature or by referendum, the California Constitution prohibits the Legislature from

amending or repealing an initiative statute, unless otherwise specified by the initiative

statute itself. (Cal. Const., art. II, § 10, subd. (c) [“The Legislature may amend or repeal

an initiative statute by another statute that becomes effective only when approved by the

electors unless the initiative statute permits amendment or repeal without the electors’

9
approval”]; Prado, supra, 49 Cal.App.5th at pp. 484-485.) Legislation amends an

initiative in violation of the constitutional prohibition when it purports to “‘change an

existing initiative statute by adding or taking from it some particular provision.’ (People

v. Cooper (2002) 27 Cal.4th 38, 44.)” (People v. Superior Court (Pearson) (2010) 48

Cal.4th 564, 571 (Pearson); Solis, supra, 46 Cal.App.5th at p. 771.) “If the Legislature

amends or repeals an initiative statute without the approval of the electorate, or otherwise

violates the constitutional limitation, the legislative act ‘is in contravention of the

Constitution and hence void.’” (Prado, at p. 486; see Kelly, supra, 47 Cal.4th at p. 1012.)

This is not to say 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. ‘The Legislature remains free to address a “‘related but distinct area’”

[citations] or a matter that an initiative measure “does not specifically authorize or

prohibit.”’” (Pearson, supra, 48 Cal.4th at p. 571, quoting Kelly, supra, 47 Cal.4th at

pp. 1025-1026.) Thus, in deciding whether a particular legislative act amends an

initiative statute, courts “need to ask whether it prohibits what the initiative authorizes, or

authorizes what the initiative prohibits.” (Pearson, at p. 571; Gooden, supra, 42

Cal.App.5th at pp. 279-280.) The resolution of this question requires a determination of

what the electorate contemplated when it passed the initiative, which in turn is a matter of

statutory interpretation. (Pearson, at p. 571; Hodges v. Superior Court (1999) 21 Cal.4th

109, 114 [“the voters should get what they enacted, not more and not less”].)

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 “When we interpret an initiative, we apply the same principles governing statutory

construction. We 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. If the language is not ambiguous, we presume the voters intended the meaning

apparent from that language, and we may not add to the statute or rewrite it to conform to

some assumed intent not apparent from that language. If the language is ambiguous,

courts may consider ballot summaries and arguments in determining the voters’ intent

and understanding of a ballot measure.” (Pearson, supra, 48 Cal.4th at p. 571; see

People v. Rizo (2000) 22 Cal.4th 681, 685.)

C. Constitutionality of Senate Bill 1437

1. Proposition 7

Proposition 7, also known as the Briggs Initiative and approved by voters in 1978,

increased the punishment for first and second degree murder by amending section 190.3

(People v. Cooper (2002) 27 Cal.4th 38, 41-42 (Cooper).) “The amendment increased

the punishment for first degree murder from an indeterminate term of life imprisonment

to a term of 25 years to life, and for second degree murder from a term of five, six, or

seven years to 15 years to life in state prison.” (Ibid.) The version of section 190 enacted

by Proposition 7 read: “Every person guilty of murder in the first degree shall suffer

death, confinement in state prison for life without possibility of parole, or confinement in

3 We grant the District Attorney’s motion asking us to take judicial notice of the
ballot pamphlets for Propositions 7 and 115 and certain legislative history related to
Senate Bill 1437. (Evid. Code, §§ 450, 452, 453.)

11
the state prison for a term of 25 years to life . . . . [¶] Every person guilty of murder in the

second degree shall suffer confinement in the state prison for a term of 15 years to life.”

(Prop. 7, supra, text of Prop. 7, § 2, italics omitted.) Proposition 7 also amended

sections 190.1 through 190.5, which pertain to imposition of the death penalty and cases

involving special circumstance allegations. (Johns, supra, 50 Cal.App.5th at p. 56.) The

Legislature may not amend or appeal Proposition 7 without voter approval. (Gooden,

supra, 42 Cal.App.5th at p. 278.)

The unambiguous language of Proposition 7 “demonstrates the electorate intended

the initiative to increase the punishments, or consequences, for persons who have been

convicted of murder.” (Gooden, supra, 42 Cal.App.5th at p. 282; Cooper, supra, 27

Cal.4th at p. 42 [“The purpose of the Briggs Initiative was to substantially increase the

punishment for persons convicted of first and second degree murder.”].)

Senate Bill 1437, on the other hand, limited the application of the felony-murder

rule and the natural and probable consequences doctrine by amending the mens rea

requirements for first and second degree murder. (Gooden, supra, 42 Cal.App.5th at

p. 282.) Senate Bill 1437 “did not prohibit what Proposition 7 authorizes by, for

example, prohibiting a punishment of 25 years to life for first degree murder or 15 years

to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for

instance, permitting a punishment of less than 25 years for first degree murder or less

than 15 years for second degree murder. In short, it did not address punishment at all.”

(Gooden, at p. 282.)

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 Nonetheless, the District Attorney asserts that Senate Bill 1437 redefines and

narrows accomplice liability for murder, thereby lessening the penalty for murder as then

defined and interpreted. The California Supreme Court’s decision in Cooper, supra, 27

Cal.4th 38 illustrates why the District Attorney’s analysis is too broad.

The issue in Cooper was whether the Legislature unconstitutionally amended

Proposition 7 through its enactment of section 2933.1, subdivision (c). (Cooper, supra,

27 Cal.4th at pp. 41, 44.) Proposition 7 included a provision that authorized postsentence

conduct credits for murderers, while section 2933.1, subdivision (c), limited presentence

conduct credits for felons convicted of certain offenses including murder. (Cooper, at

pp. 42-43.) The Court of Appeal determined that the Legislature’s limitation of

presentence credits was an unconstitutional amendment of Proposition 7 even though the

restriction “does not directly contradict the intention of the electorate in approving

[Proposition 7].” (Cooper, at p. 45.) The California Supreme Court disagreed,

determining that because Proposition 7 “does not specifically authorize or prohibit

presentence conduct credits, any limitation of such credits against defendant’s

sentence . . . is not an invalid modification of [Proposition 7].” (Id. at p. 47, fn. omitted.)

Similarly, Proposition 7 does not specifically authorize or prohibit a restriction

of the mens rea requirements for murder. Although an offense’s elements and

punishment are “closely and historically related,” they are distinct from each other.

(Gooden, supra, 42 Cal.App.5th at p. 281; see People v. Anderson (2009) 47 Cal.4th 92,

119 [“A . . . penalty provision is not an element of an offense”]; Robert L. v. Superior

13
Court (2003) 30 Cal.4th 894, 899 [“‘A penalty provision is separate from the underlying

offense and does not set forth elements of the offense or a greater degree of the offense

charged.’”].) Thus, Proposition 7 does not bar the Legislature from enacting legislation

addressing the elements of murder. (See Kelly, supra, 47 Cal.4th at p. 1025.)

Based on the foregoing reasons, we determine that the Legislature did not amend

Proposition 7 when it enacted Senate Bill 1437.

2. Proposition 115

Proposition 115, approved by voters in 1990, made several “‘comprehensive

reforms’” the electorate found necessary “‘to restore balance and fairness to our criminal

justice system.’” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 342 (Raven).) As relevant

here, one of the changes was to amend “section 189, the felony-murder statute, . . . to add

kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a

charge of first degree murder.” (Id. at p. 344.) Proposition 115 also “revised the scope of

capital liability for aiding and abetting felony murders” by extending death eligibility to

those “‘who, with reckless indifference to human life and as a major participant’ aid[ ] or

abet[ ] the crime.” (People v. Banks (2015) 61 Cal.4th 788, 798.) The initiative also

changed the rules regarding criminal discovery, prohibited post-indictment preliminary

hearings, established the District Attorney’s right to due process and speedy criminal

trials, and allowed hearsay in preliminary hearings. (Raven, at pp. 342-346 [summarizing

Prop. 115].) Proposition 115 can only be amended by statutes passed by a two-thirds

vote in each house of the Legislature. (Prop. 115, supra, text of Prop. 115, § 30.)

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 Both Proposition 115 and Senate Bill 1437 address felony-murder liability. (See

Cruz, supra, 46 Cal.App.5th at pp. 759-760.) This does not end our inquiry, however,

because the Legislature may properly “enact[ ] laws addressing the general subject matter

of an initiative.” (Kelly, supra, 47 Cal.4th at p. 1025.) We must determine whether

Senate Bill 1437 “prohibits what [Proposition 115] authorizes, or authorizes what the

initiative prohibits.” (Pearson, supra, 48 Cal.4th at p. 571.)

In Gooden, our colleagues in Division One of the Fourth District comprehensively

considered the issues raised in this appeal and answered this question narrowly,

concluding that Senate Bill 1437 did not amend Proposition 115 because Senate

Bill 1437 “did not augment or restrict the list of predicate felonies on which felony

murder may be based, which is the pertinent subject matter of Proposition 115. It did not

address any other conduct which might give rise to a conviction for murder. Instead, it

amended the mental state necessary for a person to be liable for murder, a distinct topic

not addressed by Proposition 115’s text or ballot materials.” (Gooden, supra, 42

Cal.App.5th at p. 287, fn. omitted.) We agree with Gooden’s conclusion.

Furthermore, as we stated above, the Legislature may enact laws encompassing

the same subject matter addressed by a proposition. (See Kelly, supra, 47 Cal.4th at

p. 1025.) What it may not do is enact legislation that “prohibits what the initiative

authorizes, or authorizes what the initiative prohibits.” (Pearson, supra, 48 Cal.4th at

p. 571.) The District Attorney does not establish that the Legislature has done that here.

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 It does not matter that Proposition 115 included the entire text of section 189,

including the unchanged provisions defining the offense. The California Constitution

required the inclusion of the unchanged language. (Cal. Const., art. IV, § 9; County of

San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 206 (County of San

Diego) [“a statute must be reenacted in full as amended if any part of it is amended”].)

Technical reenactment of this sort does not prevent the Legislature from amending

portions of a reenacted section that are not “integral to accomplishing the electorate’s

goals in enacting the initiative” unless there are “other indicia . . . that voters reasonably

intended to limit the Legislature’s ability to amend that part of the statute.” (County of

San Diego, 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.” (Ibid.)

That is precisely the situation here. Proposition 115 “restates a statutory provision

in full (§ 189) to comply with constitutional mandates. Further, . . . there are no indicia

in the language of the initiative or its ballot materials indicating the voters intended to

address any provision of section 189, except the list of predicate felonies for purposes

of the felony-murder rule. Therefore, we conclude the limiting language in

Proposition 115 . . . does not preclude the Legislature from amending provisions of the

reenacted statute that were subject to technical restatement to ensure compliance with

16
article IV, section 9 of the California Constitution.” (Gooden, supra, 42 Cal.App.5th at

p. 288.)

For all of these reasons and the additional reasons set out in Gooden, supra, 42

Cal.App.5th 270, we conclude that Senate Bill 1437 did not amend Proposition 7 or

Proposition 115. “[T]he voters who approved 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.” (Gooden, at p. 289.)

3. Separation of Powers Principles

Relying primarily on People v. Bunn (2002) 27 Cal.4th 1 (Bunn) and People v.

King (2002) 27 Cal.4th 29 (King), the District Attorney contends that Senate Bill 1437

violates the separation of powers doctrine because it requires the judiciary to vacate the

final judgments of eligible offenders. This same contention was rejected by Lamoureux,

supra, 42 Cal.App.5th at pages 257-264. We agree with Lamoureux’s analysis.

“‘[T]he powers of state government are legislative, executive, and judicial.

Persons charged with the exercise of one power may not exercise either of the others

except as permitted by [the state] Constitution.’” (People v. Birks (1998) 19 Cal.4th 108,

134.) “A core function of the Legislature is to make statutory law, which includes

weighing competing interests and determining social policy. A core function of the

judiciary is to resolve specific controversies between parties.” (Perez v. Roe 1 (2006)

17
146 Cal.App.4th 171, 177.) In performing this function, “courts interpret and apply

existing laws.” (Ibid.)

While the separation of powers doctrine prevents “one branch of government from

exercising the complete power constitutionally vested in another [citation][,] it is not

intended to prohibit one branch from taking action properly within its sphere that has the

incidental effect of duplicating a function or procedure delegated to another branch.”

(Younger v. Superior Court (1978) 21 Cal.3d 102, 117, italics omitted.) “[I]t is well

understood that the branches share common boundaries [citation], and no sharp line

between their operations exists. [Citations.]” (Bunn, supra, 27 Cal.4th at p. 14.)

In Bunn and King, the California Supreme Court considered whether the

Legislature could properly “authorize . . . the filing of a molestation charge even where

an accusatory pleading involving the same offense was previously dismissed as time-

barred by the courts. The question [was] whether, and to what extent, the separation of

powers clause of the California Constitution (art. III, § 3) precludes application of such a

refiling provision.” (Bunn, supra, 27 Cal.4th at p. 5, fn. omitted; see King, supra, 27

Cal.4th at p. 31.) The court concluded refiling was prohibited in King because the

refiling at issue was authorized only by a statutory amendment enacted after the prior

judgment of dismissal was upheld. (King, at p. 31.) The court explained that “separation

of powers principles preclude retroactive application of refiling legislation in cases where

the prior judgment of dismissal was entered or finally upheld before the legislation took

effect.” (Ibid.) The court determined that refiling was permissible in Bunn, however,

18
because the dismissal was already subject to a particular refiling law at the time it was

entered or finally upheld. (Bunn, at pp. 5-6.)

Here, the District Attorney argues that under Bunn and King, a final judgment of

conviction may not be vacated unless the legislation authorizing the judgment to be

vacated was in effect before the judgment became final. However, the California

Supreme Court’s separation of powers analysis in Bunn and King has not been applied

“to bar legislation allowing the reopening of already-final judgments of conviction (as

distinct from already-final judgments of dismissal).” (Lamoureux, supra, 42 Cal.App.5th

at p. 261, italics omitted; see Johns, supra, 50 Cal.App.5th at p. 68.) “[D]oing so would

threaten the ‘substantial precedent [of] remedial legislation authorizing the ameliorative

reopening of final judgments of conviction to benefit criminal defendants.’ [Citation.]”

(Johns, at p. 68.)

There is good reason for the distinct treatment of legislation authorizing the

refiling of charges in cases with prior judgments of dismissal versus legislation

authorizing judgments to be vacated, which is based in “the fundamental purposes

underlying the separation of powers doctrine. Power is diffused between coequal

branches of government not as an end to itself, but rather to protect the liberty of

individuals. [Citations.] A bright-line rule prohibiting interference with final judgments

of dismissal in favor of criminal defendants dovetails with this aim, as it eliminates the

risk criminal defendants will be subject to retrial for the same offenses of which they

were acquitted and—if convicted the second time around— deprived of their individual

19
liberty interests by means of incarceration.” (Lamoureux, supra, 42 Cal.App.5th at

p. 260.) “Unlike legislation authorizing the refiling of criminal charges against a

previously-acquitted defendant, . . . section 1170.95 does not present any risk to

individual liberty interests. On the contrary, it provides potentially ameliorative benefits

to the only individuals whose individual liberty interests are at stake in a criminal

prosecution—the criminal defendant himself or herself.” (Id. at p. 261.)

Senate Bill 1437 does not qualify as refiling legislation. It restricts the

circumstances under which a person can be liable for murder under the felony-murder

rule or the natural and probable consequences doctrine. And it allows for individuals

who were previously convicted of murder under those theories to petition the court to

have those convictions vacated. It bears no similarity to refiling legislation. Senate

Bill 1437 does not expand (or otherwise involve) a statute of limitations and actually has

the opposite effect of refiling legislation: It reduces the number of persons who can be

liable for murder by restricting the scope of conduct on the basis of which a person can

be convicted of murder. Refiling legislation increases the number of people who can be

liable by expanding the timeframe within which liability can be imposed.

The District Attorney has not directed us to any authority “applying the Bunn and

King separation of powers analysis to bar legislation allowing the reopening of already-

final judgments of conviction (as distinct from already-final judgments of dismissal), and

[like Lamoureux] we have found none.” (Lamoureux, supra, 42 Cal.App.5th at p. 261,

italics omitted.) Accordingly, we decline to extend the California Supreme Court’s

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analysis in Bunn and King to Senate Bill 1437’s resentencing provision and reject the

District Attorney’s separation of powers claim.

4. Marsy’s Law

The District Attorney also argues that Senate Bill 1437 violates the rights of crime

victims to finality of judgments as enunciated in Marsy’s Law, which was passed by

voter initiative as Proposition 9. In addition, the District Attorney argues that Senate Bill

1437 violates Marsy’s Law by purportedly depriving victims of their right to safety.

These arguments too were rejected by Lamoureux, supra, 42 Cal.App.5th at pages 264-

266. We again agree with the analysis in Lamoureux.

Marsy’s Law, approved by voters in 2008, made several constitutional and

statutory amendments to “‘“[p]rovide [crime] victims with rights to justice and due

process”’ [citation], and to ‘“eliminat[e] parole hearings in which there is no likelihood a

murderer will be paroled . . . .”’ [Citation.]” (In re Vicks (2013) 56 Cal.4th 274, 281-

283.) “The measure’s findings express a number of grievances, including . . . the failure

of the criminal justice system to give victims ‘“notice of important hearings in the

prosecutions of their criminal wrongdoers, failure to provide them with an opportunity to

speak and participate, failure to impose actual and just punishment upon their

wrongdoers, and failure to extend to them some measure of finality to the trauma

inflicted upon them by their wrongdoers.””’ (Id. at p. 282.)

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 As relevant here, Marsy’s Law amended the California Constitution to provide

victims the right “[t]o a speedy trial and a prompt and final conclusion of the case and

any related post-judgment proceedings” and “[t]o have the safety of the victim, the

victim’s family, and the general public considered before any parole or other post-

judgment release decision is made.” (Cal. Const., art. I, § 28, subds. (b)(9), (b)(16).) To

promote finality, Marsy’s Law amended Penal Code provisions pertaining to parole,

namely, sections 3041.5, 3043, and 3044. (Prop. 9, supra, text of Prop. 9, §§ 5.1-5.3.)

Marsy’s Law can only be amended by voter initiative or by two-thirds majority in both

houses of the Legislature. (Prop. 9, supra, text of Prop. 9, § 9.)

However, Marsy’s Law “did not foreclose postjudgment proceedings altogether.”

(Lamoureux, supra, 42 Cal.App.5th at p. 264.) Instead, it “expressly contemplated the

availability of such postjudgment proceedings” by referring to “‘parole [and] other post-

conviction release proceedings’” and to “‘post-conviction release decision[s].’” (Id. at

pp. 264-265; see Cal. Const., art. I, § 28, subd. (b)(7) & (8).) “It would be anomalous

and untenable for us to conclude . . . that the voters intended to categorically foreclose the

creation of any new postjudgment proceedings not in existence at the time Marsy’s Law

was approved simply because the voters granted crime victims a right to a ‘prompt and

final conclusion’ of criminal cases. (Cal. Const., art. I, § 28, subd. (b)(9).)” (Lamoureux,

at p. 265, fn. omitted.)

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 Moreover, while the District Attorney is correct that section 1170.95 does not

authorize a superior court to assess victim and public safety when determining eligibility

for relief, if the court grants a section 1170.95 petition, it must resentence the defendant.

If the trial court concludes that a petitioner is entitled to have his or her murder

conviction vacated and the sentence recalled, the court is then required to “resentence the

petitioner on any remaining counts in the same manner as if the petitioner had not

previously been sentenced, provided that the new sentence, if any, is not greater than the

initial sentence.” (§ 1170.95, subd. d)(1).) “During resentencing, the court may weigh

the same sentencing factors it considers when it initially sentences a defendant, including

whether the defendant presents ‘a serious danger to society’ and ‘[a]ny other factors

[that] reasonably relate to the defendant or the circumstances under which the crime was

committed.’ [Citation.] At minimum, the [superior] court’s ability to consider these

factors during resentencing ensures the safety of the victim, the victim’s family, and the

general public are ‘considered,’ as required by Marsy’s Law.” (Lamoureux, supra, 42

Cal.App.5th at p. 266.)

For these reasons, we conclude, as did our colleagues in Lamoureux, that Senate

Bill 1437 does not violate Marsy’s Law.

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 IV

DISPOSITION

The superior court’s postjudgment order is reversed and the matter is remanded for

further proceedings under section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.
We concur:

RAPHAEL
J.

MENETREZ
J.

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