Filed 7/2/21 P. v. Shephard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E076346
v. (Super.Ct.No. FSB036069)
MATTHEW JOSEPH SHEPHARD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Reversed with directions.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Banta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, Matthew Joseph Shephard, filed a petition for
resentencing pursuant to Penal Code1 section 1170.95 (Stats. 2018, ch. 1015, § 4), which
was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court struck
the petition, finding section 1170.95 unconstitutional. On appeal, defendant contends the
court erred in finding section 1170.95 unconstitutional. The People agree. We reverse the
order striking defendant’s petition and remand for further proceedings.
I. PROCEDURAL BACKGROUND2
On October 21, 2003, a jury found defendant guilty of first degree murder (§ 187,
subd. (a), count 1), second degree burglary (§ 459, count 3), negligent discharge of a
firearm (§ 246.3, court 4), and felonious evasion of a police officer (Veh. Code § 2800.2,
subd. (a), count 5). The jury acquitted defendant of attempted murder. (§§ 664, 187,
subd (a), count 2). The trial court imposed an aggregate sentence of 25 years to life, plus
two years four months in state prison. By opinion filed November 28, 2005, this court
affirmed the judgment but ordered the abstract of judgment corrected to show defendant’s
determinate sentence as 16 months, rather than two years four months. (People v.
Shephard, supra, E036967.)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On our own motion, we take judicial notice of the record in defendant’s appeal
from the original judgment. (People v. Shephard (Nov. 28, 2005, E036967) [nonpub.
opn.] (Shephard); see Evid. Code, § 459.) Nonetheless, we find the facts unnecessary to
our resolution of the issues on appeal.
2
On January 8, 2019, defendant filed a petition for resentencing pursuant to section
1170.95. The People filed a motion to strike the petition contending Senate Bill No. 1437
was unconstitutional. Defense counsel filed opposition to the motion to strike.
In their request for judicial notice of this court’s opinion, the People argued that
defendant had failed to make a prima facie showing for relief because defendant was the
actual killer. The People later filed an additional brief arguing both that Senate Bill
No. 1437 was unconstitutional and that defendant had failed to make a prima facie
showing of relief because defendant was the actual killer. At the hearing on the petition
on November 20, 2020, the trial court found section 1170.95, as enacted by Senate Bill
No. 1437, was unconstitutional and struck defendant’s petition.
II. DISCUSSION
Defendant contends the trial court erred in striking his petition based on its
conclusion that section 1170.95, as enacted by Senate Bill No. 1437, was
unconstitutional. The People concur. We agree.
To date, every California appellate court to address the issue, including this court,
have rejected claims that Senate Bill No. 1437 is unconstitutional. (E.g., People v. Johns
(2020) 50 Cal.App.5th 46 (Johns); People v. Lippert (2020) 53 Cal.App.5th 304 (Lippert)
(but see dis. opn. of Ramirez, P.J.).) In Johns, this court agreed with our colleagues in
other courts and rejected the contention that Senate Bill No. 1437 unlawfully undermined
the voters’ intent when they passed Proposition 7. “Proposition 7 set the penalties for
murder, not the elements of the crime of murder. (See Prop. 7, §§ 1-12.) Senate Bill
1437 left the punishment for murder unchanged, but altered the elements required to
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convict an accused of murder. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e).)
Specifically, Senate Bill 1437 changed the minimum intent required to sustain a murder
conviction by amending Penal Code sections 188 and 189. That change did not amend
the statutory provisions enacted by the voters in passing Proposition 7. [Citation.]
Senate Bill 1437 simply did not address any matter Proposition 7 specifically authorizes
or prohibits. Since the Legislature is not barred from passing laws in areas related to but
distinct from those addressed in an initiative, Proposition 7 was no bar to their passing
Senate Bill 1437.” (Johns, at p. 63; accord, People v. Lombardo (2020) 54 Cal.App.5th
553, 560-561 (Lombardo); Lippert, at p. 312; People v. Nash (2020) 52 Cal.App.5th
1041, 1058-1067 (Nash); People v. Bucio (2020) 48 Cal.App.5th 300, 309-311 (Bucio);
People v. Cruz (2020) 46 Cal.App.5th 740, 754-759 (Cruz); Solis, supra, 46 Cal.App.5th
at p. 779; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 284-286
(Gooden); Lamoureux, supra, 42 Cal.App.5th at p. 251.)
Likewise, in Johns, we agreed with Gooden and rejected the argument that Senate
Bill No. 1437 was an invalid amendment because it did not comply with Proposition 115.
“‘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.’” (Johns, supra,
50 Cal.App.5th at p. 65, quoting Gooden, supra, 42 Cal.App.5th at p. 287.) Therefore,
the Legislature was not required to enact Senate Bill No. 1437 by a two-thirds majority of
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both houses. (Gooden, at pp. 287-288; accord, Lombardo, supra, 54 Cal.App.5th at
p. 561; Lippert, supra, 53 Cal.App.5th at pp. 312-313; Nash, supra, 52 Cal.App.5th at
pp. 1067-1069; Solis, supra, 46 Cal.App.5th at pp. 780-784; Cruz, supra, 46 Cal.App.5th
at pp. 759-761; Bucio, supra, 48 Cal.App.5th at pp. 311-312; Lamoureux, supra,
42 Cal.App.5th at p. 251.)
Finally, this court agreed with our colleagues in other courts that Senate Bill
No. 1437 does not violate the sanctity of finality as enshrined in Marsy’s Law or the
separation of powers doctrine. (Johns, supra, 50 Cal.App.5th at pp. 66-69; accord, People
v. Marquez (2020) 56 Cal.App.5th 40, 47-51; Lombardo, supra, 54 Cal.App.5th at
pp. 561-565; Lippert, supra, 53 Cal.App.5th at p. 313; Nash, supra, 52 Cal.App.5th at
pp. 1070-1083; Bucio, supra, 48 Cal.App.5th at pp. 312-314; Lamoureux, supra,
42 Cal.App.5th at pp. 260-266.) We agree with the parties and the courts cited, ante, that
section 1170.95 was constitutionally enacted by Senate Bill No. 1437. Thus, the court
below erred in striking the petition on the basis that section 1170.95 was unconstitutional.
Therefore, because the trial court did not address whether defendant was eligible for relief
under section 1170.95, we remand the matter for the trial court to make such a
determination in the first instance.
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III. DISPOSITION
The order striking defendant’s petition is reversed. The matter is remanded for the
trial court to consider the petition anew, beginning with a determination of whether
defendant has made a prima facie case.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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