Filed 4/12/21 P. v. Clayton CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A158220
v.
ANDREW BERNARD CLAYTON, (Marin County
Defendant and Appellant. Super. Ct. No. SC112594)
Senate Bill No. 1437 amended the mens rea requirements for murder
and “restricted the circumstances under which a person can be liable for
murder under the felony-murder rule or the natural and probable
consequences doctrine. (Stats. 2018, ch. 1015.)” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 246 (Lamoureux).) As a result, the mens rea required for
a murder conviction, malice aforethought, “shall not be imputed to a person
based solely on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2
[amending Pen. Code, § 188].)1 Additionally, participants in specified felonies
are now liable for murder only if the defendant: (1) killed the victim;
(2) aided the actual killer with the intent to kill; or (3) “was a major
participant in the underlying felony and acted with reckless indifference to
human life . . . .” (Stats. 2018, ch. 1015, § 3 [adding § 189, subd. (e)].) The
All further statutory references are to the Penal Code unless
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otherwise specified.
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legislation also established a procedure for vacating prior convictions for
felony murder or murder under the natural and probable consequences
theory that do not fulfill these amended criteria. (§ 1170.95, subds. (a), (c),
(d)(1).)
The trial court dismissed defendant Andrew Clayton’s section 1170.95
petition seeking to vacate his first degree murder conviction (§ 187, subd. (a)),
related to the killing of a person during a drug-related robbery. (People v.
Clayton (Sept. 20, 2006, A104581) [nonpub. opn.].) Instead of reaching the
merits, the trial court concluded Senate Bill No. 1437 was unconstitutional
because it invalidly amended Proposition 7,2 a voter initiative enhancing
punishments for murder. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1978)
analysis of Prop. 7 by Legis. Analyst, pp. 32–33.)
Defendant appealed, arguing Senate Bill No. 1437 is constitutional.
We agree. Numerous Courts of Appeal have rejected the same arguments the
People3 make here and have found Senate Bill No. 1437 constitutional. (See,
e.g., People v. Nash (2020) 52 Cal.App.5th 1041, 1053 [Fifth District]; People
v. Lombardo (2020) 54 Cal.App.5th 553, 555 [Third District]; People v.
Alaybue (2020) 51 Cal.App.5th 207, 211 [Sixth District]; People v. Lopez
(2020) 51 Cal.App.5th 589, 593–594 [Second District]; Lamoureux, supra, 42
Cal.App.5th at p. 246 [Fourth District].)
Defendant requested that we take judicial notice of the text, analysis,
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and arguments for Propositions 7 and 115 and the Senate Public Safety
Committee report for Senate Bill No. 1437. We now grant his request. (See
Evid. Code, §§ 452, subd. (b), 459, subd. (a).)
3The District Attorney of Marin County defends the trial court’s order,
while the Attorney General has submitted an amicus brief defending the
constitutionality of Senate Bill No. 1437, and in support of defendant.
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First, Senate Bill No. 1437 did not invalidly amend Proposition
7 or 115—a voter initiative adding certain predicate felony offenses for
establishing felony-murder liability. (See People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270, 280–282, 287 [under Cal. Const., art. II, § 10,
subd. (c), Legislature may address related but distinct area or matters that a
voter initiative does not expressly authorize or prohibit]; Prop. 115, as
approved by voters, Primary Elec. (June 5, 1990).) Second, section 1170.95
does not violate victims’ rights to safety, finality of criminal judgments, or
“truth in sentencing”—providing sentences served “ ‘shall not be
substantially diminished by early release policies . . . .’ ” (See People v. Bucio
(2020) 48 Cal.App.5th 300, 313 [Victims’ Bill of Rights Act of 2008 did not
restrict the Legislature from creating postconviction procedures]; Lamoureux,
supra, 42 Cal.App.5th at pp. 264–266 [when resentencing under § 1170.95,
courts consider whether defendant poses serious danger to society].) Third,
section 1170.95 does not violate the separation of powers by infringing upon
the judiciary’s core function to issue final judgments or the Governor’s power
of clemency. (Lamoureux, supra, 42 Cal.App.5th at pp. 255–256 [“section
1170.95’s interference with the executive’s clemency authority, if any, is
merely incidental to the main legislative purpose of Senate Bill 1437”], 261–
263 [Legislature has the power to adjust prison terms in final judgments for a
legitimate public purpose].)
We accept the published decisions’ analyses and conclusions that
Senate Bill No. 1437 is constitutional. There is no reason to elaborate on
those discussions here.
DISPOSITION
The order is reversed and remanded.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Wiseman, J.*
A158220/People v. Andrew Bernard Clayton
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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