Filed 10/29/20 P. v. Thao CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C089609
Plaintiff and Respondent, (Super. Ct. No. CRF-1998-
5317)
v.
PAO THAO,
Defendant and Appellant.
Defendant Pao Thao was convicted of first degree murder and kidnapping in 1999.
In 2019 he filed a petition seeking resentencing under Penal Code section 1170.95,1
which was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4) and took effect January 1, 2019. The trial court denied defendant’s petition
on the basis that Senate Bill No. 1437 unconstitutionally amends two initiative measures:
1 Undesignated statutory references are to the Penal Code.
1
Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7) and
Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115). On
appeal, defendant argues the trial court erred in declining to reach the merits of his
petition and determining that Senate Bill No. 1437 is unconstitutional.2
As we explain, we have reached this issue before and see no reason to revisit our
earlier decisions. Accordingly, we agree with defendant and reverse the trial court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999 defendant was convicted of first degree murder and kidnapping. On direct
appeal, we reversed the kidnapping conviction, but otherwise affirmed the judgment.
(People v. Thao (March 20, 2000, C032213) [nonpub. opn.].)
In 2019 defendant filed a form petition for resentencing under section 1170.95.
Defendant checked boxes indicating: (1) a complaint, information, or indictment was
filed against him that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable consequences doctrine; (2) he was convicted of
first or second degree murder under the felony murder rule or natural and probable
consequences doctrine; and (3) he could not now be convicted of first or second degree
murder because of the recent changes to sections 188 and 189.
The District Attorney opposed the petition, arguing Senate Bill No. 1437, and,
consequently, section 1170.95, were unconstitutional. In particular, the District Attorney
argued Senate Bill No. 1437 unconstitutionally amended Proposition 7 and
Proposition 115 and violated the separation of powers doctrine and the Victims’ Bill of
Rights Act of 2008, also known as Marsy’s Law (Ballot Pamp., Gen. Elec. (Nov. 4, 2008)
2 The Attorney General has filed an amicus curiae brief supporting defendant’s position.
The Yolo County District Attorney filed a brief in opposition.
2
text of Prop. 9).3 Defendant, through appointed counsel, filed a response. The trial court
heard argument and issued a written order denying the petition without reaching its
merits based on its finding that Senate Bill No. 1437 was unconstitutional. Specifically,
the court found “[Senate Bill No.] 1437 explicitly takes away from the punitive
consequences of persons sentenced under the provisions of Proposition 7” and “prohibits
what Proposition 115 authorizes to the extent that it narrows the class of persons subject
to Penal Code section 189.”
DISCUSSION
We addressed the same issue earlier this year in People v. Superior Court
(Ferraro) (2020) 51 Cal.App.5th 896 and again even more recently in People v.
Lombardo (2020) 54 Cal.App.5th 553. We see no reason to revisit our position, which is
also the position of the appellate courts in other districts that have addressed the issue and
concluded Senate Bill No. 1437 is not an invalid amendment of either Proposition 7 or
Proposition 115. (See, e.g., People v. Bucio (2020) 48 Cal.App.5th 300, 311-312;
People v. Cruz (2020) 46 Cal.App.5th 740, 747; People v. Solis (2020) 46 Cal.App.5th
762, 769; People v. Lamoureux (2019) 42 Cal.App.5th 241, 251; People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 275.)
Consistent with these decisions, and for the reasons expressed therein, we will
reverse the trial court’s order and remand the case for further proceedings.
3 On appeal, the District Attorney briefs only arguments as to Propositions 7 and 115.
3
DISPOSITION
The trial court’s order denying defendant’s Penal Code section 1170.95 petition is
reversed. The matter is remanded for further proceedings on the merits of the petition.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
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People v. Thao CA3
Combined Opinion