People v. Velten CA2/6 ( 2020 )


Menu:
  • Filed 8/24/20 P. v. Velten CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    THE PEOPLE,                                                 2d Crim. No. B298964
    (Super. Ct. No. F000464362002)
    Plaintiff and Respondent,                            (San Luis Obispo County)
    v.
    JENNIFER VELTEN,
    Defendant and Appellant.
    Jennifer Velten appeals from a postjudgment order denying
    her petition for resentencing under Penal Code1 section 1170.95.
    Appellant contends the court erred in finding that Senate Bill No.
    (SB) 1437, pursuant to which section 1170.95 was enacted, is
    unconstitutional. We agree and accordingly reverse.
    FACTUAL AND PROCEDURAL HISTORY
    In 2012, appellant was charged with murder (§ 187, subd.
    (a)), burglary (§ 459), and robbery (§ 211). After a preliminary
    1   All undesignated statutory references are to the Penal
    Code.
    hearing, appellant pleaded guilty to second degree murder and
    was sentenced to 15 years to life in state prison.
    Following the enactment of SB 1437, appellant filed a
    petition for resentencing pursuant to section 1170.95. The
    prosecution moved to dismiss the petition on the ground that SB
    1437 is unconstitutional. In its motion, the prosecution
    contended that SB 1437 unconstitutionally amended Propositions
    7 and 115. The prosecution also argued that SB 1437 conflicts
    with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law). In its
    reply to appellant’s opposition, the prosecution further asserted
    that SB 1437 violates the separation of powers doctrine by
    undermining the finality of court judgments.
    In its ruling, the court stated that the evidence at
    appellant’s preliminary hearing “showed probable cause to
    believe that [appellant] and three codefendants participated in
    the burglary and robbery of the victim, in a residential motel,
    resulting in a co-defendant stabbing the victim to death. It is
    clear that for purposes of the preliminary hearing that the People
    relied on a felony murder theory.” The court nevertheless denied
    the petition, concluding that SB 1437 “violate[s] the California
    Constitution by violating the separation of powers doctrine, the
    constitutional requirement for finality of judgments, and the due
    process protections accorded both the parties, and by
    unconstitutionally amending Propositions 115 and 7.
    Accordingly, [appellant] cannot, as a matter of law, secure the
    relief . . . section 1170.95 purports to offer.”
    DISCUSSION
    Appellant contends the trial court erred in denying her
    petition for resentencing under section 1170.95 based on the
    finding that SB 1437 is unconstitutional. We agree.
    SB 1437, which went into effect on January 1, 2019,
    amended the definition of murder in sections 188 and 189 to
    2
    narrow the scope of the felony murder rule and the natural and
    probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–3.)
    The measure also added section 1170.95 to establish a procedure
    whereby persons previously convicted of murder, who could not
    be convicted under the new definitions, could petition to have
    their convictions vacated. “If the petitioner is found eligible for
    relief, the murder conviction must be vacated and the petitioner
    must be resentenced ‘on any remaining counts in the same
    manner as if the petitioner had not been previously . . .
    sentenced, provided that the new sentence, if any, is not greater
    than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (People v.
    Bucio (2020) 
    48 Cal.App.5th 300
    , 307 (Bucio).)
    After appellant filed her opening brief, our colleagues in
    Division One of the Fourth Appellate District issued two opinions
    upholding the constitutionality of SB 1437. (People v. Superior
    Court (Gooden) (2019) 
    42 Cal.App.5th 270
    , review denied
    February 19, 2020, S259700 (Gooden) [SB 1437 did not amend
    Propositions 7 and 115]; People v. Lamoureux (2019) 
    42 Cal.App.5th 241
    , review denied February 19, 2020, S259835
    (Lamoureux) [SB 1437 did not unconstitutionally amend
    Propositions 7 and 115 and did not violate the separations of
    powers doctrine or Marsy’s Law].) After briefing was completed,
    we issued an opinion following Gooden and Lamoureux in
    rejecting all four of the constitutional challenges at issue in this
    appeal. (Bucio, supra, 48 Cal.App.5th at p. 306.) Since then,
    numerous other courts have issued opinions rejecting identical
    constitutional challenges to SB 1437. (See, e.g., People v.
    Superior Court (Ferraro) (2020) 
    51 Cal.App.5th 896
    ; People v.
    Alaybue (2020) 
    51 Cal.App.5th 207
    ; People. v. Lopez (2020) 
    51 Cal.App.5th 589
    ; People v. Johns (2020) 
    50 Cal.App.5th 46
    ;
    People v. Prado (2020) 
    49 Cal.App.5th 480
     ; People v. Smith
    3
    (2020) 
    49 Cal.App.5th 85
    ; People v. Solis (2020) 
    46 Cal.App.5th 762
    ; People v. Cruz (2020) 
    46 Cal.App.5th 740
    .)
    Although the People address Gooden and Lamoureux in
    their respondent’s brief, they did not submit any supplemental
    briefs addressing Bucio or the numerous other cases uniformly
    holding that SB 1437 is constitutional.2 Because we have already
    rejected all four of the grounds upon which the trial court in this
    case found SB 1437 to be unconstitutional (Bucio, supra, 48
    Cal.App.5th at p. 306), and the People have declined to address
    that decision or the many other recent published decisions that
    have all reached the same conclusion, we deem it sufficient for
    present purposes to once again hold—pending a contrary decision
    by our Supreme Court—that SB 1437 is constitutional.
    DISPOSITION
    The order dismissing appellant’s section 1170.95 petition is
    reversed, and the matter is remanded for the trial court to
    consider the merits of the petition.
    NOT TO BE PUBLISHED.
    PERREN, J.
    We concur:
    GILBERT, P. J.                 YEGAN, J.
    2 We grant the People’s unopposed request for judicial
    notice of documents regarding the legislative histories of
    Propositions 7 and 115 and SB 1437. (Evid. Code, §§ 452, subs.
    (c) & (d), 459.)
    4
    Timothy S. Covello, Judge
    Superior Court County of San Luis Obispo
    ______________________________
    Jonathan E. Demson, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Dan Dow, District Attorney, Melissa Chabra, Deputy
    District Attorney, for Plaintiff and Respondent.
    5
    

Document Info

Docket Number: B298964

Filed Date: 8/24/2020

Precedential Status: Non-Precedential

Modified Date: 8/24/2020