KRISHNA A. ABRAMS District Attorney of Solano County By: Eric M. Charm, #215163 Deputy District Attorney 675 Texas St., Suite 4500 Fair?eld, California 94533 Telephone: (707) 784-6800 Attorney for the People SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SOLANO THE PEOPLE OF THE STATE OF CASE NO. VCR224653 CALIFORNIA, OPPOSITION TO Plaintiff, MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE vs. BILL 1437 JAMES ANTHONY GOVER JR., DATE: 1/4/ 19 Defendant. TIME: 9:00 DEPT: 15 INTRODUCTION In 1978, frustrated with ineffective sentencing laws for murder and a weak and ineffective Legislature, the people of the state of California put forth and overwhelmingly passed Proposition 7, known as the Briggs Initiative, to ?turn back the tide of violent crime? in California by imposing increased and prison terms for ?rst and second- degree murder. Forty years later, believing it knew better than 71% of voters], the legislature dramatically upended the will of the people by clawing back the law of murder and its sentencing in violation of the California constitution. On September 30, 2018, Governor Brown signed into law Senate Bill 1437 amending Penal Code section 188. The law eliminates decades to century old judicially recognized legal constructions that impute the malice necessary for murder on a pawn based on his or her participation in a crime. It also amends Penal Code section 189 to //1ep_ository. uchastings. edu/ca ballo__p?ps/ 840/ OPPOSITION TO DEFENDANT '8 MOTION TO DISMISS BASED THE UNCONSTITUTIONALITY OF SENATE BILL 1437 t?l limit those who can be prosecuted for ?rst degree felony murder, and adding Penal Code section 1170.95 providing for resentencing of anyone previouSly lawfully convicted of ?rst or second degree-murder but who could not be convicted for murder under the new law. In early 2018, the California Assembly acknowledged in AB. 3104, its own similar version of SB. 1437, that any changes to Penal Code sections? 189, 1-90 or 1902. required a 2/3 vote of both houses to pass because sueh legislative action would amend Proposition 115.2 Subsequently, the Legislative Counsel?s of?ce advised that the proposed amendments to Penal Code sections 188 and 189 encompassed in SB. 1437 affecting accomplice liability would require voter approval under Article II, section 10 of the California Constitution because they affected the 1978 Briggs Initiative by changing the sc0pe and effect of that initiative. (See Exhibit A [Legislative Counsel Bureau opinion letter dated June 20, 2018].) The Legislature chose to ignore that legal advice and passed SB. 1437 without voter approval and by less than 2/3 vote in both houses, thereby usurping the will of the electors of both Propositions 7 and 115 and violating the state constitution. The purpose of Califomia?s constitutional limitation on the legislature?s power to amend initiative statutes is to ?protect the People?s initiative powers by precluding the legislature from undoing what the people have done, without the electorate?s consent.? (Huening v. Eu (1991) 231 Cal.App.3d 766, 781.) For the reasons originally acknowledged by the California assembly, the further reasons cited by the Legislative Counsel?s Of?ce, and the additional reasons set forth below, SB. 1437 amending Penal Code sections 188 and 189 and adding Penal Code section 1170.95 must be stricken in its entirety as unconstitutional. 2 Notably, AB. 3104 made no mention of the requirement of voter approval despite clearly amending Penal Code sections 190 and 190. 2, which were the subject of to. which required app] OPPOSITION TO DIAFENDAN I MOT ION TO DISMISS ON THE UNCONSTITUTION ALITY OF SENATE BILL 1437 - 2 mqmmemmwoowSaGEBSZS POINTS AND AUTHORITIES AND ARGUMENT I. THE LEGISLATURE MAY AMEND OR REPEAL INITIATIVE- STATUTES ONLY AS PROVIDED FOR IN THE INITIATIVE OR WITH APPROVAL OF THE ELECTORS DeSpite the legislature?s declaration in SE. 1437 that ?[t]he power to de?ne crimes and ?x penalties is vested exclusively in the Legislative branch? (SB. 1437, 1, subd. in adopting its constitution the people of the State of California chose not to vest the sole and exclusive right to enact statutes in the legislature. Speci?cally, article IV, section one states, ?The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the peeple reserve to :themselves the powers of initiative and referendum.? (Emphasis added.) Those reserved powers of the people are contained in article II, sections eight and nine, which respectively instruct: ?The initiative is the power of the electors to propose statutes and amendments to the Constitution: and to adopt or reject them,? and ?[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.? Balancing the people?s reserved power, article II, section ten provides that the Legislature ?may amend or repeal a referendum statute. The Legislature may amend or repeal an initiative statute by another statute that becomes ejj?ective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors? approval.? (Emphasis added.) The purpose of limiting the Legislature?s power to amend an initiative statute ?is to ?protect the peOple?s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate?s consent.? (County of San Diego v. Commission on State Mandates 2018 WL 6037872 So important is the peoples? power that: Statutes and constitutional provisions adopted by the voters ?must be construed liberally in favor of the people's right to exercise the reserved oppo'smoN TO MOTION TODISMISS BASED ON THE UNCONSTITUTIONALITY 01: SENATE BILL 1437 powers of initiative and referendum. The initiative and referendum are not rights ?granted the people, but . . . powcr[s] reserved by them. Declaring it ?the duty of the courts to jealously guard this right of the peeple? [citation], the courts have described the initiative and referendum as articulating ?one of the most precious rights of our democratic process? [citation]. has long been our judicial policy to apply a liberal construction to this power wherever it rs challenged in order that the right not be improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it. [Citations (Ross: v. 131 own (l 995) 9 Cal. 4th 688 694?695 3.8 Cal. [{ptr 2d 363.- 889 l9. 2d 5571' In fact, ]he peOple' reserved power of initiative is greater than the power of the legislative body. The latter may not bind future Legislatures [citation], but by constitutional and charter mandate, unless an initiative measure expressly provides otherwise, an initiative measure may be amended or repealed only by the electorate. Thus, through exercise of the initiative power the people may bind future legislative bodies other than the people themselves.? (Id. at pp. 715? 316 38 Cal. Rptr. 2d 363-, 889 19. 2d 557.) (Shaw v. People ex rel. Chiang (2009) (Shaw) 1 75 Cal.App.4th 577, 596.) II. SENATE BILL 1437 UNCONSITUTIONALLY AMENDS PROPOSITION 7 The analysis necessary to determine whether amendment to a prior statute is described as follows: Whether an act is amendatory of existing law is determined not by title alone, or by declarations in the new act that it purports to amend existing law. On the contrary, it is determined by an examination and comparison of its provisions with existing law. If its aim is to clarify or correct uncertainties which arose from the enforcement of the existing law, or to reach situations which were not covered by the original statute, the act is amendatory, even though in its wording it does not purport to amend the language ofthe prior act. (Franchise Tax Bd. v. Cory (1978) (Cory) 80 Cal.App.3d 772, 777. [Italics in original]) A legislative statute amends an initiative statute if it changes the ?scope or effect? of the initiative. (Proposition 103 Enforcement Project v. Charles Quackenbush (1998) (Quackenbush) 64 Cal.App.4th 1473,1485.) ln Quackenbush a people?s initiative statute known as Proposition 103 relating to insurance premium rollbacks enacted statutes OPPOSITION TO DEFENDANT 8 MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 00' ON LII 43 Li.) ooqoxLALri?aoxogsaahss:5 providing for, among other things, excess premiums paid to insurers to be refunded to policyholders after premium rollbacks were applied. The initiative reserved to the legislature the power to amend the provisions of Prop. 103 only to further serve the purpose of the initiative, and then by either 2/3 vote in both houses or voter approval. (Id. at p. 1479) Subsequently, the legislature passed a separate statute that directed the insurance commissioner to deduct certain expenses incurred by insurers from its total premium income, which had the effect of redUCing an insurer?s overall rollback obligation. (Id. at pp. 1479-80.) The proponents of Prop. 103 sued for injunctive relief arguing the legislative statute resulted in an unauthorized amendment to Prop. 103 became it effectively reduced the amount of refund due policyholders after rollbacks, and Ein so doing the amendment did not serve the purpose of the initiative. (Id. at p. 1478-) The insurance commissioner argued that the statute passed by the legislature was not ?directed to any provision of Proposition 103, let alone [toward] changing the scope and effect for such a provision by adding or subtracting something from it.? (Id. at p. 1484.) Citing Cory, the Quackenbush court began with the definition of an amendment and noted it as: [A]ny change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provision which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise or supplement, or by an act independent and original in form . . . A statute which adds to or takes away from an existing statute is considered an amendment . . . [A]n amendment [is] a legislative act designed to change some prior or existing law by adding or taking from it some particular provision.? (Quackenbusl?z, supra, 64 Cal.App.4th at p. 1485.) The court in Quackenbush further recognized that in determining whether a particular action constitutes an amendment is the duty of the courts to jealously guard [the people?s initiative and referendum power].? . . [I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right [to local initiative or referendum] be not Morlaxl TO BREED THE UNCONSTITUTIONALITY or SENATE BILL 1437 5 improperly annulled.? (Quackenbush, supra, at p. 1485. [internal citations omitted]) Further, the court stated, ?Any doubts should be resolved in favor of the initiative and referendum power, and amendments which may con?ict with the subject matter of initiative measures must be accomplished by popular vote, as Opposed to legislatively enacted ordinances, where the original initiative does not provide otherwise.? (Id. at p. 1486 [italics in original].) Ultimately, the court held that the legislature could not ?indirectly accomplish via the enactment of a statute which essentially amended a formula adopted to implement an initiative?s purpose, What it cannot accomplish directly by enacting a statute which amends the initiat'ive?s statutory provisions.? Then, quoting our supreme court in Sheehy v; Shirm (1894) 103 Cal. 325, 340, the court stated, ?To give effect to the constitution, it is as much the duty of the courts to see that it is not evaded as that it is not directly violated.? (Quackenbush, supra, at p. 1487.) Finding the independent statute was an amendment of Prop. 103, the court found the legislative statute ?constitutionally invalid as an act in excess of the legislature?s powers.? (Ibid) Similarly, in Mobilepark West Homeowners. Assn. v. Escondido Mobilepark West (Mobilepark), the Court of Appeal examined whether a city ordinance seeking to clarify alleged ambiguities in a city ordinance relating to controls of mobile home space rent increases passed by voter initiative Proposition by rede?ning the term ?tenant? used in the initiative to expand its meaning, and by adding additional requirements to the original initiative ordinance was an imprOper legislative amendment of an initiative measure which did not reserve amendatory authority to the City. (Mobilepark, supra, (1995) 35 Cal.App.4th 32, 39-40.) First, the court established that it was relying on Franchise Tax Bd. 1). Cory, supra, for the definition of ?amendment.? (Mobilepark at p. 40.). Next, citing De Vita v. County ofNapa (1995) 9 Cal.4th 763, 788, the court recognized that ?the Supreme Court explained that such provisions (Elections Code sections 9217 and 9125, which mirr01 article II, section 10 ofthe Constitution), have their roots OPPOSITION 8 MOTION TO BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 --6 00? ON (.the constitutional right of the electorate to initiative, ensuring that successful initiatives will not be undone by subsequent hostile boards of supervisors.? (Mobilepark at p. 41.) Finally, the court examined the changes made by the city to the voter initiative and found them to be amendatory within the meaning of Cory and not clarifying of any ambiguities within the initiative, thus improper and facially invalid. (Id. at pp. 42-43.) In rejecting the City?s primary argument the court stated, ?[The City?s] ordinance goes beyond the original scope of Proposition by adding to the de?nition of tenants affected by the initiative, and by requiring owners to offer certain options and disclosures before exempt leases may be executed.? And that, ?Proposition is not an ambiguous measure in its de?nition of the ?tenant? to be governed by the rent protection ordinance (not including prospective tenants). Nor are any ambiguities raised by the terms of Proposition as to the requirements for entering into rent control-exempt leases, such as [the City?s ordinance] addresses.? Finally, the court rejected the City?s contention that its ordinance was a ?separate ordinance [which does] not purport to amend [Proposition because it was merely legislation in a related but distinct area, holding instead that ?because Proposition establishes comprehensive rent control procedures, its scope of coverage and the conditions under which a rent control exempt lease may be entered into are not merely a related area, but rather go to the heart of the coverage of the initiative measure.? (Mobilepark at pp. 42-43.) A. Senate Bill 1437 Created Penal Code Section 1170.95, Amending Proposition 7 In 1978 seventy-one percent of the voters in California passed Proposition 7 known as the Briggs Initiative (hereinafter ?Prop. The purpose of the initiative was to ?turn back the rising tide of violent crime that threatens each and every [Californian]? by promulgating longer sentences for ?rst?degree and second?degree murder and creating a tough and effective death penalty law. (See Murder. Penalty California Pr0position 7 MFTIOE To D?Is'ivnss THE OF SENATE BILL 1437 f? Penal Code section 1903 to set the minimum term for ?rst?degree murder at 25-life and to increase the punishment for second?degree murder from a determinate term triad to 15- life; Senate Bill 1437?s newly-created Penal Code section 1170.95 amends Prop. 7 by authorizing the trial court to resentence defendants previously lawfully convicted and sentenced for ?rst and second-degree murder to a sentence other than 25 or 15 to life. The legislative digest of SB. 1437 recognized that existing law enacted by Prop. 7 prescribes the penalties for ?rst and second-degree murder, and further rIeCOgni?zed that ithe bill would provide a means of vacating previously valid ?rst and second?degree murder convictions and resentencing defendants. (See Legislative Counsel?s Digest to Senate Bill No. 1437, Chapter 1015.) The law accomplished the sweeping murder sentencing overhaul by adding section 1170.95 to the Penal Code providing for a petition process by which a defendant previously lawfully convicted and sentenced for ?rst or secondidegree murder can seek resentencing in the trial court to a sentence substantially less than 15 or 25 to life. Thus, the resentencing provision changes the scope and effect of PrOposition 7 by permitting courts to impose sentences on thOSe Convicted for ?rst and second?degree murder to something other than the sentences authorized by the voters in1978 without the approval of the electorate. Voters are deemed aware of laws in existence at the time of approving an initiative, including the de?nition of the crime for which they are imposing a sentence. (Professional Engineers in California Government v. Kempron (2007) (Kempton) 40 Cal.4th 1016, 1048; People v. Weidert (1985) (Weiderr) 39 Cal.3d 836, 844 [enacting body deemed aware of existing laws and judicial constructions in effect at time legislation is enacted]; In re Lance W. (1985) 37 Cal.3d 873,890, fn.ll [principle applies to legislation enacted by initiative].) Urther, is a well-recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use these exact words in the same connection, the presumption is almost irresistible that it used them in the precise ,3 Prop. 7 also amended?nal nge section nul_in controversy_her_e. OPPOSITION TO MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 KO 00 NJ OX3 LII Lp and technical sense which had been placed upon them by the courts.? (City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191.) The presumption is equally applicable to measures adepted by popular vote. (Perry v. Jordan (1949) 34 Call2d 87, 93; See also, In re Jeam?ce D. (1980) 28 Cal.3d 210, 216.) When the people passed Prop. 7 murder was de?ned as ?the unlawful killing of a human being with malice aforethought and divided into ?rst and second-degree murder. All murder not murder in the ?rst degree as? de?ned in Section 189, was murder in the second?degree. (Pen. Code, 187, 189.) First?degree felony murder, originally codi?ed from the common law rule in California in 1850, was de?ned as a killing ?Committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288.? (Pen. Code, 189; People v. Dillon (1983) (Dillon) 34 Cal.3d 441, 472.) In addition to the statutory de?nitions of ?rst and second-degree murder in existence at the time Prop. 7 was passed, voters were presumed aware that California courts had long-construed the murder statutes to apply to defendants where the malice necessary for murder was imputed to a defendant either the direct perpetrator of the killing or his or her accomplice based solely on his or her participation in a crime. Second-degree felony murder had been judicially recognized as early asl964. (Peeple 12. Ford (1964) (Ford) 60 Cal.2d 772, 795 [?Homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, 189) constitutes at least second-degree Both conspirator liability and the natural and probable consequences doctrine as applied to murder was ?rst judicially recognized in 1907. (People v. Kau?man (1907) (Kau?man) 152 Cal. 331, 334 . .[W]here several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation all. Each is reSponsible for everything done by his confederates, which follows incidentally in the exEution ofthe common design as one o_fits probable and natural consequences, even OPPOSITION TO MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 9 though it Was not intended as a part of the original design or common And so.- called ?provocative act murder? was recognized by our Supreme Court as early as 1965. Thus, when the voters passed Prop. 7 increasing the penalty for defendants convicted of either ?rst or second-degree murder as it was then de?ned and long- recognized by California courts, the initiative applied to all duly convicted murder defendants that SB. 1437 now seeks to allow to be resentenced to terms far below that whiCh was mandated by the people. Our constitution requires that su?ch aetion be? approved by the voters. B. Senate Bill 1437 Amended Penal Code Section 188 Eliminating Imputed Malice Murder Constructions, and Penal Code Section 189, Requiring Additional Conduct to be Held Liable for First-Degree Felony Murder, Both of Which Amend Proposition 7 by Narrowing Its Scope The parallels and applicability of Quackenbush and Mobilepark to SE. 1437 is compelling and supports the invalidation of SB. 1437. Senate Bill 1437 amends the sc0pe of Proposition 7 by limiting who can be convicted and punished for ?rst and second?degree murder by adding requirements for murder liability not previously required by eliminating imputed malice and by adding new af?rmative requirements for felony-murder liability. Senate Bill 1437 amends Penal Code section 188 non-substantively by reorganizing it and breaking the section down into separate subdivisions. It amends section 188 substantively by adding subdivision (3), which says, ?Except as stated in subdivision of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed tO a person based solely on his or her participation in a crime.? (Senate Bill No. 1437, 2.) The bill likewise amends Penal Code section 189 non-substantively by breaking that section down into subdivisions and incorporating speci?c statutory de?nitions for the terms used within it. It amends section 189 substantively by adding subdivision which reads: OPPOSITION TO MOTION ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 \0 GO \1 UT Lu A participant in the perpetration or attempted perpetration of a felony listed in subdivision in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the ?rst degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision of Section 190.2. (Senate Bill No. 1437, 3.) Proposition 7 mandated life sentences for all defendants who could be convicted of ?rst or second-degree murder as de?ned by statute and which had been judicially construed at the time the initiative was passed, including ?rst degree felony murder, second-degree felony murder, murder under co?conspirator and natural and probable consequences doctrines, and provocative act murder. Each imputes the implied malice necessary for murder onto the defendant based on his or her participation in a crime that results in murder. The effect of the substantive amendments to Penal Code sections 188 and 189 is to reduce the total number of individuals eligible for punishment for ?rst or second-degree murder by eliminating long standing judicial constructions in existence when Prop. 7 was passed and by rede?ning who can be liable for ?rst degree murder under the felony murder rule. Indeed, the exact intended effect as stated in section one of the bill was to . . limit convictions and subsequent sentencing . . . and assist[] in the reduction of prison overcrowding . . Not only does SB. 1437 change the effect of Prop. To BASED ON UNCONSTITUTIONALITY or SENATE BILL 1437 7 in the manner explained in Quackenbush, it changes its full scope and reach of Prop. 7_ in the manner explained in Mobilepark. To determine exactly how SB. 1437 changes the scope of Prop. 7, it is necessary to ?rst examine the voters? intent in promulgating and passing the initiative; that is, how far a reach did the voters want the initiative to have? Did the voters really want the increased punishments for murder to reach everyone who could be convicted of ?rst or second-degree murder as it existed at the time to the extent that they wished to bind future legislatures and prevent that body from narrowing the scope of Prop. 7 by shallowing the pool of eligible murder defendants by simply changing the elements of murder so fewer defendants could be convicted and punished? In gaining an understanding of the scope of Prop.7 the voters intended it to have it is important to start with the proposition that, ?[t]here is a presumption, though not conclusive, that voters are aware of existing laws at the time a voter initiative is adopted.? (Santos v. Brown (2015) 238 Cal.App.4th 398, 410.) ?Ballot pamphlet arguments have been recognized as a proper extrinsic aid in construing voter initiatives adopted by popular vote. [Citations.]? (People v. Yearwood (2013) 213 Cal.App.4th 161, 171; see also Santos v. Brown (2015) 238 Cal.App.4th 398, 410; People v. Shabazz (2015) 237 Cal.App.4th 303, 313.) Likewise, ballot explanations by the Legislative Analyst are also a source of construing voter intent. (In re Lance W., supra, 37 Cal.3d at p. 888; People v. Walker (2016) 5 Cal.App.5th 872, 877.) ?In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration. [Citations.]? (In re Lance W. (1985) 37 Cal.3d 873, 889; see also People v. Rivera (2015) 233 Cal.App.4th 1085, 1099-1100.) the case ofa voters? initiative statute we may not prOperly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.? (Robert L. v. Superior Ct. (2003) 30 Cal.4th 894, 909, quoting Hodges v. Superior Court (1999) 21 Cal.4th 109, 114; see also People v. Rocco (2012) 209 Cal.App.4th 1571, 1575-) DISMISS BASED ON THE UNCONSTITUTIONALITY or SENATE BILL 1437 Woes-Jasmn-wmh. ?[R]ules of statutory construction are the same whether applied to the California Constitution or a statutory provision (Winchester v. Mabury (1898) 122 Cal. 522, 52.7), and ?[t]he same rules of interpretation should apply to initiative measures enacted as st?atutes.? (Sanders v. Pacific Gas Elec. C0. (1975) 53 Cal.App.3d 661, 672.)? (People v. Bustamante (1997) 57 Cal.App.4th 693, 699, fn. 5; see also People v. Estrada (2017) .3 Cal.5th 661, 668; People v. Rizo (2000) 22 Cal.4th 681, 685.) When we interpret an initiative, we apply the same principles governing statutory construction. We ?rst consider the initiative?s language, giving the words their ordinary meaning and c'oriStruing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the v'oters intended the meaning apparent from that languagethe 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. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; see also People v. Arroyo (2016) 62 Cal.4th 589, 593; People v. Scarbrough (2015) 240 Cal.App.4t-h 916, 922?923.) The subject of Prop. 7 was the penalty for murder, both prison and the death penalty. The ballot argument in favor of Prop. 7 highlights the ?deadly plague of violent crime which terrorizes law-abiding citizens? and criticizes the Legislature for passing penalties that are ?weak and ineffective.? The argument speaks to a desire to have the ?nation?s toughest, most effective? penalties for murder and notes that ?judges and law enforcement officials have agreed that Proposition 7 will provide them with a powerful weapon of deterrence in their war on violent crime.? (Murder. Penalty California Proposition 7 (1978), uroig?tilj.) The overall tone and concern expressed in the arguments together with the signi?cant changes actually made to the various penalties for murder, make clear the intent of the electorate to secure the community against violent crime by imposing prison terms or the death penalty on all defendants who could be convicted of murder under then-existing law; Thus, the broad applicati_on and scope OPPOSITION TO MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 ?13 of the initiative was as much a part of the proposition as was the actual increased prison terms promulgated by its passage. So signi?cant was the electorate?s disdain for legislative weakness in establishing murder penalties as demonstrated by the tone of the ballot arguments that the proposition was drafted in such a way as to bind all future legislatures from making any changes to the effect or scope of the measure unless the people approved. Today?s Legislature, however, has indeed undermined the will of the electorate by its changes to Penal Code sections 188 and 189, as recognized in the legislative counsel?s digest to 8B. 1437 and clearly stated in section one of the law itself. C. Any Amendments to Proposition 7 Require Voter Approval The power vested in the electorate to decide whether the Legislature can amend an initiative statute is absolute. (Amwest Surety Ins. Co. v. Wilson (1995) (Amwest) 11 Cal.4th 1243, 1251. Proposition 7 did not reserve power to amend its provisions to the legislature. Therefore, any legislative statutes which amend Prop. 7 require voter approval. (CA Const., art. 11, Senate Bill 1437 amended Prop. 7 and was not approved by the voters. It is therefore, unconstitutional and must be stricken. SENATE BILL 1437 UNCONSITUTIONALLY AMENDS PROPOSITION 115 California voters passed Proposition 115 known as the Crime Victim?s Reform Act (hereinafter ?Prop. 115?). Among the goals of the people in enacting Prop. 115 was to ?create a system in which violent criminals receive just punishment. . . . and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools.? (Prop. 115, 1, subd. To that end, and among other things, Prop. 115 amended Penal Code section 189 expanding the definition of ?rst-degree murder to include murder committed during the commission or attempted commission of ?ve additional serious crimes. (Prop. 115, 9.) Proposition. 115 also amended Prop. 7, expanding its scope by increasing the overall number of individuals eligible for punishment for first degree felony murder. However, unlike B. 1437, the voters approved the change to Prop. 7?s scope when they approved Prop. 115. Prop 115 in turn reserved power to amend its pr_ovisions to the OPPOSITION TO DEFENDANT MOTION TO DISMISS BASED THE UNCONST ITUTIONALITY OF SENATE BILL 1437 ?14 legislature, but only ?by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.? (Prop. 115, 30.) Section 3 of SB. 1437 amended Penal Code section 189 by adding subdivisions as outlined above and, which precludes the application of subdivision if the murder victim is a police of?cer killed in the course of his or her duties. By its terms, Prep. 115 requires either voter approval or a 2/3 vote in both houses to make this change since Pen-a1 Code section 189 is a ?Statutory provi'sion[] contained in this measure.? (Prop. 115, 30.) Recently, our Supreme Court held: When technical reenactments are required under article IV, section nine 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. This conclusion applies unless the provision is integral to accomplishing the electorate?s goals in enacting the initiative or other indicia support the conclusion that voters reasonably intended to limit the Legislature?s ability to amend that part of the statute. (Commission on Mandates, supra, 2018 WL 6037872 23. [italics in original In Commission on Mandates the state was attempting to get out from under its obligation to reimburse counties for costs associated with certain aSpects of civil commitment proceedings for sexually violent predators under The Sexually Violent Predators Act Welf. Inst. Code, 6600 et seq), claiming that the 2006 voter- enacted Sexual Predator Punishment and Control Act: Jessica?s Law (Prop. 83) substantively amended and reenacted various statutes that served as the basis for the reimbursement mandate and therefore costs previously associated with SVPA proceedings were no longer a state mandate requiring reimbursement, but a voter mandate with costs to be borne by the counties. (Commission on Mandates, supra, at pp. 1-2.) At issue was whether the statutes that had been amended by Prep. 83, and then reenacted in full as amended as required by the constitution, did in fact make substantive opposi'iION Morin? timings BASED ON THE UNCONSTITUTIONALITY or SENATE BILL 1437 ?15 ,changes to the SVPA or were merely technical. The Court held they had not. (Id. at p. 3.) The Court went to some length to emphasize that its holding pertained to the wholesale reenactment of a statute without substantive change. It spoke of the underlying purposes of Prop. 83, which had re-enacted the SVP provisions but did ?not focus on duties local governments were already performing under the (Commission on Mandates, supra, at p. 22.) By way of contrast, the Court looked at Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, where legislative deviatiOns of money from a trust fund created by Prop. 116 were improper amendments of the electorate?s enactment outside of the proposition?s authorization. The Court in Commission on Mandates said this sought ?to undo the Very protections the voters had enacted,? (Id. at p. 21), and went to ?the heart of a voter initiative.? (Id. at p. 20-.) Relevant to the argument here, it was noted by the court in Commission on Mandates that Prop. 83 did expand the de?nition of a sexually violent predator, and ?[a]lthough the SVP de?nition does not itself impose any particular duties on local governments, it is necessarily incorporated into each of the listed activities. Indeed, whether a county has a duty to act (and, if so, what it must do) depends on the SVP definition.? (Commission on Mandates, supra, 2018 WL 6037872 at pp. 26-26 [italics in original].) The Court, therefore, remanded the matter back to the Commission to determine whether and how the initiative?s expanded de?nition of an SVP may affect the state?s obligation to reimburse the Counties for implementing the amended statute. (Id. at p. 3.) Thus, the question was left open whether amending the statute to broaden the definition Of an SVP, resulting in a larger group of individuals who could be subject to the law thus triggering a county?s duty to act is a substantive change. Prop. 1 15 amended Penal Code section 189 to add five additional serious felonies to the felony murder rule, including kidnapping, sodomy, oral copulation of a minor, forced sexual penetration, and train wrecking. The question is whether Penal Code section 189?s re-enactment in SB. 1437 with the amendments was simply to make technical non?substantive changes to it thus not requiring the 2/3 vote required by Prop. 1 15. it was not. It is true that some Ofthe changes to the section are nominal and non- OPPOSITION TO MOTION TO BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 ?i6 \Doo?an-waww substantive SB. 1437 reorganized the section and included statutory de?nitions for some of the terms used within it but as a. plain reading ofnewly?added subdivision demonstrates, SB. 1437 substantially limits who can be liable for felony murder in California by requiring additional elements be proved that were not included in Prop. 115?s version of Penal Code section 189. Prep. 115 did not merely re-enact Penal Code section 189 as required by the Constitution to make minor technical, non-subStanti've changes to it. The heart of Prop. 115 focused on the fact that ?the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to. murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system.? (Prop. 115, Furthermore, ?[t]he goals of the people in enacting this measure are . . . to create a system in which violent criminals receive just punishment, . . . and in which society as a whole can be free from fear of crime in our homes, neighborhoods, and schools.? (PrOp. 115, Removing culpability from felony murder cannot be said to be anything other than at odds with those goals. Since the original amendment to section 189 contained in Prop. 115 was not a mere technical change, but rather, a substantive one, any further substantive changes to Penal Code section 189 require 2/3 approval vote in both houses as mandated by Prop. 115. Senate Bill 1437 thereafter substantively changed section 189 and did so without the necessary 2/3 approval vote in both houses.4 It is therefore an unconstitutional amendment and must be stricken. http: //leginfo. legislature .ca . 1437 OPPOSITION TO MOTION TO DISMISS on THE UNCONSTITUTIONALITY OF SENATE BILL 1437 CONCLUSION The court should deny defendant?s motion to dismiss because Senate Bill 1437 amended Proposition 7 and was not approved by the voters. Accordingly, Senate Bill 1437 is unconstitutional and must be stricken. Furthermore, since the passage of Proposition 115, any substantive changes to Penal Code Section 189 requires a 2/3 approval vote in both houses. The required 2/3 approval in both houses did not occur. Therefore, Senate Bill 1437 is an unconstitutional amendment that must be stricken because it usurps the will of the electors violating the state Constitution. DATED: January 3, 2019 Respectfully submitted, KRISHNA A. ABRAMS District Attorney ERIC M. CHARM Deputy District Attorney OPPOSITION TO MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY or SENATE BILL 1437 ?18 p?l EXHIBIT A To BASES ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 ?19 I ?10113111?. - ., 15.115515113931155; . FEJ :11I'IfIlfliEn . . wa??qp". . . ?l . .. 1111-25151 55111 1 - I 1 414;; . 1" 31511515512:21his? 1? I41, "1:351: ?1:571:23. .. II: .. gi'klfi?" g" 1 _Int??lIhil-u .1, . ?l 5" - 111-111.? I .II1I51 I'll arJ I ?i?til'jr 61?: 11:11 - 1 5:51:31 I r- 7511.1: . 1} 11'" 11155;: :5535141311:51:15. 118151? 1 '11: .. 1112.111111'1'1'1115 4111511111" uiau??' REE-bra r5541.}: 5.. Nlh?? ?ql li?Hrln 5111' Pmr'son .llIiLi 11111111111111 5511115155 E1 ?(545111:- 11111122155115.1115: - 11111511131515 55:51:15 #351511 T. 515.5115. 5511- Fr1qkl15rTm-f Il?t 1.1115115: .jaIIrlrIl. 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PROOF OF SERVICE I, the undersigned, certify under penalty of perjury that my business address is the Of?ce of the District Attorney, 675 Texas St, Suite 4500, Fair?eld, Solano County, California and I am not a party to the within entitled action; On January 3rd, 2019:, I served the attached: OPPOSITION TO MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY 0F SENATE BILL 1437 FOR JAMES ANTHONY GOVER, VCR224653. Hand delivering a true copy thereof to the Of?ce of the Public Defender?: ATTN: APD BARRETT Hand delivering a true copy thereof to the Staff Attorney: Hand delivering a true copy thereof to the Of?ce of the Alternate Public Defender I: Placing a true copy at the DA Reception Desk for pickup by: Placing a true copy in a sealed envelope, for mailing thru the Solano County Central Mail Services: Placing a true copy in a sealed envelope, postage hereon fully prepaid, and deposited in the United States Mail in Fair?eld, California, addressed to the following: By facsimile to the following: I declare under penalty of perjury that the foregoing is true and correct. Executed This 3m Day of January, 2019 at Fair?eld, California. glam Legal Secretary PROOF OF. SERVICE I, the undersigned, certify under penalty of perjury that my business address is the Of?ce of the District Attorney, 675 Texas St., Suite 4500, air?eld, Solano County, California and I am not a party to the within entitled action; On January 2019: I served the attached: OPPOSITION TO DEF MOTION TO DISMISS BASED ON THE OF SENATE BILL 1437 FOR JAMES ANTHONY GOVER, Hand delivering a true copy thereof to the Office of the Public Defender: A Hand delivering a true copy thereof to the Of?ce of the Con?ict Defender: Cl Hand delivering a true copy thereof to the Staff Attorney: El Placing a true copy at the DA Reception Desk for pickup by: Placing a true copy in a sealed envelope, for mailing thru the Solano County Central Mail Services: El Placing a true copy in a sealed envelope, postage hereon fully prepaid, and deposited in the United States Mail in Fair?eld, California, addressed to the following: K1 By fax to the following: AMY MORTON 707-644-7528 I declare under penalty of perjury that the foregoing is true and correct. Executed This 3rd Day of January, 2019, at Fairlield, California. (AXNWNA ?(team mate? Legal Secretary PROOF OF SERVICE I, the undersigned, certify under penalty of perjury that my business address is the Of?ce of the District Attorney, 675 Texas St., Suite 4500, Fair?'eld, Solano County, California and I am inot a party to the within entitled action; On January 2019: I served the attached: OPPOSITION TO MOTION TO. DISMISS BASED ON THE UNCONSTITUTIONALITY OF SENATE BILL 1437 FOR JAMES ANTHONY GOVER, VCR224653. Hand delivering a true copy thereof 'to the Of?ce of the Public Defender: Hand delivering a true copy thereof to the Of?ce of the Con?ict Defender: Hand delivering a true copy thereof to the Staff Attorney: Placing a true copy at the DA Reception Desk for pickup by: El Placing a true copy in a sealed envelope, for mailing thru the Solano County Central Mail Services: El Placing a true copy in a sealed envelope, postage hereon ?illy prepaid, and deposited in the United States Mail in Fair?eld, California, addressed to the following: By fax to the following: THOMAS MAAS 707-423-1911 I declare under penalty of perjury that the foregoing is true and correct. Executed This 3rd Day of January, 2019, at Fair?eld, California. @\Mm\ffim\ Legal Secretary