Attorney General's Amicus Curiae Brief in Support of Real Parties in Interest

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
THE PEOPLE,
Petitioner,
v. Case No. D075787
THE SUPERIOR COURT OF SAN DIEGO
COUNTY, Superior Court No.
Respondent, CR61365
ALLEN GOODEN,
Real Party in Interest.
THE PEOPLE,
Document received by the CA 4th District Court of Appeal Division 1.

Petitioner,
v. Case No. D075790
THE SUPERIOR COURT OF SAN DIEGO
COUNTY, Superior Court No.
Respondent, CR105918
MARTY DOMINGUEZ,
Real Party in Interest.
ATTORNEY GENERAL’S AMICUS CURIAE

BRIEF IN SUPPORT OF REAL PARTIES IN
INTEREST
XAVIER BECERRA *NELSON R. RICHARDS

Attorney General of California Deputy Attorney General
THOMAS S. PATTERSON State Bar No. 246996
Senior Assistant Attorney General 1300 I Street, Suite 125
TAMAR PACHTER P.O. Box 944255
Supervising Deputy Attorney General Sacramento, CA 94244-2550
Telephone: (916) 210-7867
Fax: (916) 324-8835
E-mail: Nelson.Richards@doj.ca.gov
Attorneys for the Attorney General as
Amicus Curiae in support of Real Party in
Interest
1
TABLE OF CONTENTS
Page
Amicus Curiae Information .......................................................................... 7

Introduction .................................................................................................. 7
Background................................................................................................... 8
I. Proposition 7 Set the Penalties for Murder, Not the
Elements of the Crime ............................................................ 8
II. Proposition 115 Added to the List of Predicate Crimes
Supporting a Charge of First Degree Murder and the
Punishments for Felony First Degree Murder ...................... 10
III. S.B. 1437 Changed the Culpability Required to
Convict a Person for Murder under the Felony-Murder

Rule and the “Natural and Probable Consequences”
Doctrine ................................................................................ 11
Argument .................................................................................................... 14
I. S.B. 1437 Does Not Amend Proposition 7 .......................... 15
A. Proposition 7 Did Not Set, or Prevent the
Legislature from Changing, the Elements of the
Crime of Murder. ...................................................... 15
B. Petitioner Misapprehends Proposition 7’s
Scope. ........................................................................ 19
C. Section 1170.95 Does Not Amend
Proposition 7. ............................................................ 22
II. S.B. 1437 Does not Amend Proposition 115 ....................... 22
Conclusion .................................................................................................. 24
2
TABLE OF AUTHORITIES
Page
CASES
Amwest Surety Ins. Co. v. Wilson

(1995) 11 Cal.4th 1243 .......................................................................... 15
County of San Diego v. Commission on State Mandates

(2018) 6 Cal.5th 196 ........................................................................ 18, 23
Franchise Tax Board v. Cory

(1978) 80 Cal.App.3d 772 ..................................................................... 14

In re Oluwa
(1989) 207 Cal.App.3d 439 ............................................................. 19, 20
Knight v. Superior Court

(2005) 128 Cal.App.4th 14 .............................................................. 18, 19
Lockett v. Ohio
(1978) 438 U.S. 586 ............................................................................... 16
Mobilepark West Homeowners Assn. v Escondido Mobilepark

West
(1995) 35 Cal.App.4th 32 ...................................................................... 14
Palermo v. Stockton Theatres, Inc.

(1948) 32 Cal.2d 53 ............................................................................... 20
People v. Banks
(2015) 61 Cal.4th 788 ...................................................................... 16, 21
People v. Chiu
(2014) 59 Cal.4th 155 ................................................................ 12, 19, 21
People v. Chun
(2009) 45 Cal.4th 1172 ........................................................ 11, 12, 18, 19
People v. Cooper
(2002) 27 Cal.4th 38 ....................................................................... passim
3
(continued)
Page
People v. Jenkins
(1995) 10 Cal.4th 234 ............................................................................ 17
People v. Kelly
(2010) 47 Cal.4th 1008 .................................................................... 14, 16
People v. Prettyman
(1996) 14 Cal.4th 248 ...................................................................... 12, 19
People v. Ruiz
(1996) 44 Cal.App.4th 1653 .................................................................. 17

People v. Sumstine
(1984) 36 Cal.3d 909 ............................................................................. 22
People v. Superior Court (Pearson)

(2010) 48 Cal.4th 564 ................................................................ 14, 15, 17
Proposition 103 Enforcement Project v. Quackenbush

(1998) 64 Cal.App.4th 1473 ............................................................ 14, 21
STATUTES
Code of Civil Procedure

§ 902.1...................................................................................................... 7
Government Code
§ 12511..................................................................................................... 7
4
(continued)
Page
Penal Code
§ 109.2, subd. (d) ................................................................................... 21
§ 187........................................................................................... 11, 19, 20
§ 188................................................................................................ passim
§ 188, subd. (a)(1) .................................................................................. 11
§ 188, subd. (a)(2) .................................................................................. 11
§ 188, subd. (a)(3) ............................................................................ 13, 15
§ 189................................................................................................ passim
§ 189, subd. (e)........................................................................... 13, 15, 21
§ 189, subd. (f) ....................................................................................... 13

§ 190................................................................................................ passim
§§ 190-190.5 ................................................................................ 9, 15, 19
§ 190.1...................................................................................................... 9
§ 190.2.......................................................................................... 9, 10, 16
§ 190.2, subd. (b) ................................................................................... 16
§ 190.2, subds. (c)-(d) ............................................................................ 10
§ 190.3...................................................................................................... 9
§ 190.4...................................................................................................... 9
§ 190.5...................................................................................................... 9
§ 1170.95.................................................................................... 13, 21, 22
§ 1170.95, subd. (c)................................................................................ 13
§ 1170.95, subd. (d)(1) ........................................................................... 13
§ 1170.95, subd. (d)(2) ........................................................................... 22
§ 2930..................................................................................................... 19
CONSTITUTIONAL PROVISIONS
California Constitution
Article 5, § 13 .......................................................................................... 7
COURT RULES
California Rules of Court

Rule 8.200(c)(2) ....................................................................................... 7
Rule 8.487(d) ........................................................................................... 7
Rule 8.487(d)(3) ....................................................................................... 7
5
(continued)
Page
OTHER AUTHORITIES
Ballot Pamp., Gen. Elec. (Nov. 7, 1978) .............................................. passim
Ballot Pamp., Prim. Elec. (June 5, 1990) ........................................ 10, 11, 23
Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018 Reg. Sess.)
res. ch. 175 ............................................................................................. 11
Senate Bill 54 (1981-1982 Reg. Sess.) ........................................................ 18

Senate Bill 1437 (2017-2018 Reg. Sess.) ............................................. passim
Stats. 1981, ch. 404...................................................................................... 18
Stats. 1981, ch. 404, p. 1593 ....................................................................... 18
Stats. 1982, ch. 893, § 4............................................................................... 18
Stats. 1982, ch. 949, p. 3438 ....................................................................... 18
Stats. 1982, ch. 950, p. 3440 ....................................................................... 18
Stats. 2018, ch. 1015.............................................................................. 12, 13
Stats. 2018, ch. 1015, § 1, subd. (e) ............................................................ 22
Stats. 2018, ch. 1015, § 1, subd. (f) ............................................................. 22
Stats. 2018, ch. 1015, §§ 2-4 ....................................................................... 13
6
AMICUS CURIAE INFORMATION
This Court issued an order to show cause on May 21, 2019. That
order noted that the Attorney General may file an amicus curiae brief
pursuant to California Rules of Court rule 8.487(d).
Under that rule, the Attorney General’s brief must state his interest
and explain how the brief will assist the Court in deciding the matter. (See
id. rule 8.487(d)(3) [“The brief must provide the information required by
rule 8.200(c)(2)”].) This writ petition addresses the constitutionality of
Senate Bill 1437 (2017-2018 Reg. Sess.) (S.B. 1437). The Attorney
General is the “chief law officer of the State,” (Cal. Const., art. 5, § 13)

who “has charge . . . of all legal matters in which the State is interested”
(Gov. Code, § 12511), including defending laws against constitutional
challenges. Arguments made by the Attorney General in this capacity will
necessarily assist the Court in deciding the matter. (Cf. Code Civ. Proc.,
§ 902.1 [granting the Attorney General the right to intervene in any appeal
taken from a judgment declaring a law unconstitutional].)
7
INTRODUCTION
Before the enactment of S.B. 1437, someone who did not actually kill
another person, and who lacked the intent to kill another person, could still
be convicted of murder under certain applications of the felony-murder rule
and the “natural and probable consequences” doctrine of aider and abettor
liability. The Legislature concluded that this was unfair and inconsistent
with basic principles of individual culpability. It enacted S.B. 1437 to
require more to convict a person of murder. Under S.B. 1437, felony
murder and aiding and abetting a murder remain crimes. But now, to be
convicted of murder, it is not enough to have participated in a felony that

results in a death. Instead, a participant in a felony in which a person dies
must have either killed the victim, aided the actual killer with the intent to
kill the victim, or acted as a major participant in the commission of the
felony with reckless indifference to human life.
The petitions in these consolidated cases seek to invalidate S.B. 1437,
arguing that it is an unauthorized amendment of two ballot initiatives,
Proposition 7 and Proposition 115. But neither initiative addressed the
felony-murder rule, the “natural and probable consequences” doctrine, or
the mens rea necessary for a murder conviction. Because S.B. 1437 did not
amend either ballot initiative, the petitions should be denied.
BACKGROUND
I. PROPOSITION 7 SET THE PENALTIES FOR MURDER, NOT THE

ELEMENTS OF THE CRIME
Proposition 7, known as the Briggs Initiative, increased the penalties

for first and second degree murder; it did not alter the elements of the
crime. “The purpose of the Briggs Initiative was to substantially increase
the punishment for persons convicted of first and second degree murder.”
(People v. Cooper (2002) 27 Cal.4th 38, 42.) Before Proposition 7 was
8
enacted, a person convicted of first degree murder could be sentenced to
death, life without the possibility of parole, or life with possibility of
parole, with parole eligibility starting at year seven. (Ballot Pamp., Gen.
Elec. (Nov. 7, 1978), at p. 32, analysis of legislative analysis.) A person
convicted of second degree murder could be sentenced to a maximum of
seven years, which could be reduced by up to a one-third for good
behavior. (Id.)
Proposition 7 increased penalties for murder by amending Penal Code
sections 190 through 190.5. (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at
pp. 33, 41-45, Prop. 7 §§ 1-12 [Prop. 7].) Under amended section 190, a
conviction for first degree murder carries a sentence of death, life without

parole, or 25 years to life; and a conviction for second degree murder
carries a sentence of 15 years to life. (Prop. 7 § 2, adding new Penal Code
§ 190.) Other new sections built upon section 190. Section 190.1 set
phases for death penalty cases; section 190.2 set the special circumstances
in which a person convicted of first degree murder could be punished by
death or life without parole; section 190.3 set the procedure for imposing
the death penalty upon a person convicted of special-circumstance first
degree murder; section 190.4 set the procedure for determining whether a
murder included a special circumstance; and section 190.5 disqualified
from the death penalty those who were less than 18 years old when they
committed their crime. (Prop. 7 §§ 4, 6, 8, 10, 12.)
Proponents touted the initiative as a cure to the “weak and ineffective”
death penalty bill enacted by the Legislature the year before. (Ballot
Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) Invoking Charles Manson,
Sirhan Sirhan, the Zodiac Killer, the Skid-Row Slasher, and the Hillside
Strangler, they argued that “Proposition 7 will give every Californian the
protection of the nation’s toughest, most effective death penalty law.”
(Ibid.) Opponents of the law argued that it was “written carelessly,”
9
creating the possibility that “a man or a woman could be sentenced to die
for lending another person a screwdriver to use in a burglary, if the other
person accidently killed someone during the burglary.” (Id. at p. 35.) In
response, proponents assured the voters that a “person must have
intentionally aided in the commission of a murder to be subject to the death
penalty under this initiative.” (Ibid., capitalization omitted.)
Proposition 7 did not authorize the Legislature to amend its provisions
without voter approval. (See Prop. 7 §§ 1-12; Cooper, supra, 27 Cal.4th at
p. 44.)
II. PROPOSITION 115 ADDED TO THE LIST OF PREDICATE
CRIMES SUPPORTING A CHARGE OF FIRST DEGREE MURDER

AND THE PUNISHMENTS FOR FELONY FIRST DEGREE MURDER
Proposition 115, the Crime Victims Justice Reform Act, offered

“comprehensive reforms . . . to restore balance and fairness to [California’s]
criminal justice system.” (Ballot Pamp., Prim. Elec. (June 5, 1990), at
pp. 33, 65-69 [Prop. 115]; Prop. 115 § 1(a).) In addition to other significant
changes, and as relevant here, the law amended Penal Code sections 189
and 190.2
Specifically, Proposition 115 amended section 189 to add kidnapping,
train wrecking, and various sex offenses to the list of felonies supporting a
first degree murder charge. (Prop. 115 § 9.) It amended section 190.2 to
require a sentence of death or life without the possibility of parole in two
situations where the defendant is not the actual killer: first, if the defendant
aids or supports a killer and acts with the intent to kill; and second, if the
defendant is a major participant in certain crimes, such as robbery, where a
death occurs, and acts with reckless indifference to human life. (Prop. 115,
§ 10, Pen. Code, § 190.2, subds. (c)-(d).) 1
1
All further undesignated references are to the Penal Code.
10
Ballot arguments for the initiative did not address these specific
changes. (See Ballot Pamp., Prim. Elec. (June 5, 1990), at pp. 34-35.) The
proponents wrote generally about the need to enact “tougher laws” to keep
people “safe and free from fear.” (Id. at p. 34, capitalization omitted.)
Proposition 115 permits the Legislature to amend its terms by statutes
passed by a two-thirds vote in each house of the Legislature. (Prop. 115
§ 30.)
III. S.B. 1437 CHANGED THE CULPABILITY REQUIRED TO
CONVICT A PERSON FOR MURDER UNDER THE FELONY-
MURDER RULE AND THE “NATURAL AND PROBABLE
CONSEQUENCES” DOCTRINE

In 2017, the Legislature adopted a continuing resolution calling for
changes to the felony-murder rule and the “natural and probable
consequences” doctrine. (Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018
Reg. Sess.) res. ch. 175.) These theories of liability subject a defendant to
liability for murder under a lesser mens rea standard.
Generally, malice is an essential element of the crime of murder.
(§ 187.) It may be either express or implied. It is express “when there is
manifested a deliberate intention unlawfully to take away the life of a
fellow creature.” (§ 188, subd. (a)(1).) It is implied “when no considerable
provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (§ 188, subd. (a)(2).) Implied malice
has “both a physical and a mental component. The physical component is
satisfied by the performance of an act, the natural consequences of which
are dangerous to life. The mental component is the requirement that the
defendant knows that his conduct endangers the life of another and acts
with a conscious disregard for life.” (People v. Chun (2009) 45 Cal.4th
1172, 1181, internal citation, quotation marks, and ellipses omitted.)
The felony-murder rule, as it existed before 2019, made “a killing
while committing certain felonies murder without the necessity of further
11
examining the defendant’s mental state.” (Id. at p. 1182.) Felony murder
could either be in the first or second degree. First degree felony murder
was “a killing during the course of a felony specified in section 189, such
as rape, burglary, or robbery.” (Ibid.) Second degree felony murder was
“an unlawful killing in the course of the commission of a felony that is
inherently dangerous to human life but is not included among the felonies
enumerated in section 189.” (Ibid., quotation marks omitted; see also id. at
p. 1184 [holding that the second-degree felony-murder rule is based on
“section 188’s abandoned and malignant heart language”].)
Similarly, the “natural and probable consequences” doctrine, as it
existed before 2019, made “a person who aids and abets a confederate in

the commission of a criminal act . . . liable not only for that crime (the
target crime), but also for any other offense (nontarget crime)”—including
murder—“committed by the confederate as a ‘natural and probable
consequence’ of the crime originally aided and abetted.” (People v.
Prettyman (1996) 14 Cal.4th 248, 254.) “Because the nontarget offense
[was] unintended, the mens rea of the aider and abettor with respect to that
offense [was] irrelevant and culpability [was] imposed simply because the
person could have foreseen the commission of the nontarget crime.”
(People v. Chiu (2014) 59 Cal.4th 155, 164.) “An aider and abettor’s
liability for murder under the natural and probable consequences doctrine
operates independently of the felony-murder rule.” (Id. at p. 166.)
In 2018, the Legislature adopted, and the Governor signed, S.B. 1437.
(Stats. 2018, ch. 1015.) The Legislature declared that “[r]eform is needed
in California to limit convictions and subsequent sentencing so that the law
of California fairly addresses the culpability of the individual.” (Id., § 1.)
The new law was designed “to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the intent to kill, or
12
was not a major participant in the underlying felony who acted with
reckless disregard for human life.” (Ibid.)
To that end, the Legislature amended Penal Code sections 188 and
189 and added new section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.)
S.B. 1437 amended section 188 to provide that malice may not “be imputed
to a person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).) “[T]o be convicted of murder, a principal in a crime shall act
with malice,” except as provided in the newly added subdivision (e) of
section 189. (Ibid.) That new subdivision narrows the felony-murder rule
and the “natural and probable consequences” doctrine. Those theories may
only be used to charge murder in the commission of a felony when a

participant in the underlying felony (1) is the actual killer; (2) is not the
actual killer but, with intent to kill, aids or abets a first degree murder; or
(3) is a major participant in the underlying felony and acts with reckless
indifference to human life. (§ 189, subd. (e).) 2
Section 1170.95 creates a procedure to vacate prior convictions for
felony murder or murder under the “natural and probable consequences”
doctrine that do not meet the new criteria. Petitioners who make a prima
facie showing that they are entitled to relief will receive “a hearing to
determine whether to vacate the murder conviction and to recall the
sentence and resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not been previously been sentenced[.]”
(§ 1170.95, subds. (c), (d)(1).)
2
These new limitations do “not apply to a defendant when the
victim is a peace officer who was killed while in the course of his or her
duties, where the defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of his or her duties.”
(§ 189, subd. (f).)
13
ARGUMENT
S.B. 1437 did not amend either Proposition 7 or Proposition 115. A

statute amends an initiative when it is “‘designed to change the . . .
initiative by adding or taking from it some particular provision’” or by
“prohibit[ing] what the initiative authorizes, or authoriz[ing] what the
initiative prohibits.” (People v. Superior Court (Pearson) (2010) 48
Cal.4th 564, 571, quoting Cooper, supra, 27 Cal.4th at p. 44.) “But this
does not mean that any legislation that concerns the same subject matter as
an initiative, or even augments an initiative’s provisions, is necessarily an
amendment for these purposes.” (Ibid.) “The Legislature remains free to

address a related but distinct area or a matter that an initiative measure does
not specifically authorize or prohibit.” (People v. Kelly (2010) 47 Cal.4th
1008, 1025-1026 (Kelly), internal citations and quotation marks omitted.)
Courts will not invalidate a law enacted by the Legislature that does not
impinge on “what voters contemplated.” (Pearson, supra, 48 Cal.4th at
p. 571.) “The voters should get what they enacted, not more and not less.”
(Ibid., quotation marks and brackets omitted.) 3
3
This Court should decline Petitioner’s invitation to adopt a legal
standard for determining whether a statute amends an initiative that the
Supreme Court has questioned and never applied. (See Petn. 34 [all
citations to the petition filed in People v. Superior Court (Gooden)
(D075787)], relying on Proposition 103 Enforcement Project v.
Quackenbush (1998) 64 Cal.App.4th 1473 (Quackenbush)).) In
Quackenbush, supra, the court of appeal held in part that an amendment is
something that changes an initiative’s “scope and effect.” (64 Cal.App.4th
at p. 1486; see also Franchise Tax Board v. Cory (1978) 80 Cal.App.3d
772, 776-777; Mobilepark West Homeowners Assn. v Escondido
Mobilepark West (1995) 35 Cal.App.4th 32, 40.) In Kelly, the Supreme
Court called this an “expansive test,” and questioned its viability “in the
context of a constitutional provision that restricts legislative amendment of
an initiative statute.” (See Kelly, supra, 47 Cal.4th at p. 1026 & fn. 18.)
The “scope and effect” standard is nebulous, potentially undermining both
(continued…)
14
Initiatives are subject to ordinary rules of statutory construction.
(Pearson, supra, 48 Cal.4th at p. 571.) Courts “first consider the
initiative’s language, giving the words their ordinary meaning and
construing this language in the context of the statute and initiative as a
whole.” (Ibid.) “If the language is not ambiguous, [courts] presume the
voters intended the meaning apparent from that language, and [they] may
not add to the statute or rewrite it to conform to some assumed intent not
apparent from that language.” (Ibid.) “If the language is ambiguous, courts
may consider ballot summaries and arguments in determining the voters’
intent and understanding of a ballot measure.” (Ibid.)
I. S.B. 1437 DOES NOT AMEND PROPOSITION 7

Proposition 7 set the penalties to be imposed after a murder
conviction, not the elements of the crime of murder. S.B. 1437 changed the
elements that must be proven to convict for the crime of murder, not the
penalties upon conviction. (§ 188, subd. (a)(3); § 189, subd. (e).) This
change did not amend Proposition 7.
A. Proposition 7 Did Not Set, or Prevent the Legislature
from Changing, the Elements of the Crime of Murder.
The voters’ intent in enacting Proposition 7 is clear: to set minimum

penalties for a conviction of murder, by amending sections 190 through
190.5. (See Prop. 7 §§ 1-12.) By contrast, S.B. 1437 changed the
minimum intent required to sustain a murder conviction, by amending
sections 188 and 189. S.B. 1437 governs what is necessary to convict a
person of murder; Proposition 7 governs the penalties that must be imposed
(…continued)
the policy that limitations on the Legislature’s power “are to be strictly
construed,” and the “strong presumption of constitutionality that supports
the Legislature’s acts.” (See Amwest Surety Ins. Co. v. Wilson (1995) 11
Cal.4th 1243, 1253, 1255.)
15
upon conviction. While these two concepts are related, they are distinct—
“‘the definition of crimes generally has not been thought automatically to
dictate what should be the proper punishment.’” (People v. Banks (2015)
61 Cal.4th 788, 801, quoting Lockett v. Ohio (1978) 438 U.S. 586, 602.)
And the Legislature is not barred from passing laws in areas related to but
distinct from those addressed in an initiative. (Kelly, supra, 47 Cal.4th at
p. 1025-1026.) S.B. 1437’s changes to the elements of murder thus did not
amend Proposition 7.
The ballot materials confirm this reading of Proposition 7. The
measure’s focus was on punishment, in particular, the death penalty. The
proponents called the law “the nation’s toughest, most effective death

penalty law.” (Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) In their
arguments in support of the measure, they invoked criminals who killed
intentionally, including Charles Manson and the Zodiac Killer. (Ibid.)
Felony murder and the “natural and probable consequences” doctrine did
not factor into the arguments or legislative analysis. (See id. at pp. 32-35.)
Mens rea came up only where the proponents assured the voters that intent
to aid in the commission of a murder was required to impose a sentence of
life without parole or death on a defendant who was not the actual killer.
(Id. at p. 35.) The related provision, former section 190.2, subdivision (b),
authorized the death penalty for any person “whether or not the actual killer
found guilty of intentionally aiding . . . any actor in the commission of
murder in the first degree[.]” (Prop. 7, § 6.) 4 Nothing in S.B. 1437 changes
that punishment.
Governing caselaw demonstrates that Proposition 7 did not restrict the
Legislature’s authority to enact S.B. 1437. For example, in Cooper, supra,
4
Current subdivision (c) of section 190.2 is substantially similar to
the version of subdivision (b) enacted by Proposition 7.
16
the Supreme Court considered whether a statute limiting presentence
conduct credits available to a defendant convicted of second degree murder
and sentenced under section 190 improperly amended Proposition 7. (27
Cal.4th at pp. 40-43.) As amended by Proposition 7, section 190 permitted
a reduction in sentence under an article of the Penal Code that authorized
reductions based on post-sentence prison conduct credits. (Id. at p. 46.)
Finding the voters’ intent regarding presentence credits ambiguous, the
Court held that “because former section 190 does not specifically authorize
or prohibit presentence conduct credits,” the Legislature retained authority
to regulate them. (Id. at p. 47.) Section 190 similarly does not authorize or
prohibit the intent requirements enacted by S.B. 1437. 5

In Pearson the Supreme Court held that Proposition 115’s limitation
on discovery in criminal trials did not preclude the Legislature from
enacting a statute permitting broader discovery in post-conviction
proceedings. (Pearson, supra, 48 Cal.4th at p. 567.) The Court concluded
that that the new law augmented Proposition 115 by providing for
discovery that the initiative did not. (Id. at p. 570.) But recognizing the
differences in the goals of criminal trials and habeas corpus proceedings,
the Court concluded that the voters who enacted Proposition 115 did not
intend to provide for or prohibit discovery in habeas corpus matters. (Id. at
pp. 571-573.) Similar reasoning applies here. Just as criminal trials are
5
Even in the area of sentencing, courts have recognized that
Proposition 7 did not limit the Legislature’s authority. (See People v.
Jenkins (1995) 10 Cal.4th 234, 1230-1231 & fn. 7 [holding that neither
section 190 nor any other provision of Proposition 7 “indicates that the
electorate intended to preclude a murderer from receiving a total sentence
that is greater than the term provided under section 190”]; People v. Ruiz
(1996) 44 Cal.App.4th 1653, 1660-1661 [following Jenkins].) These cases
show that Proposition 7 set only minimum penalties for murder and does
not otherwise limit the Legislature’s authority.
17
distinct from habeas corpus proceedings, the elements of a crime are
distinct from the punishment for the crime. An initiative addressing one
does not prevent the Legislature from addressing the other.
A related principle led the Court of Appeal to find that a legislative
enactment did not amend an initiative in Knight v. Superior Court (2005)
128 Cal.App.4th 14. There, Proposition 22 prevented the Legislature from
recognizing same-sex marriages performed in other jurisdictions. (Id. at
p. 20.) The Legislature subsequently amended the domestic partnership
laws to give domestic partners the same legal rights and obligations as
married couples, subject to some limitations. (Id. at p. 21.) The court held
that the new law did not amend Proposition 22 because the initiative did not

address the domestic partnership laws, which predated Proposition 22. (Id.
at p. 26.) The court declined to read “undisclosed objectives” into the
initiative that “the electorate was not given the opportunity to vote on.”
(Ibid.) Similarly here, this Court should decline to read into Proposition 7
undisclosed objectives to restrict legislative authority to amend sections
188 and 189. 6
6
In addition to this caselaw, the history of unchallenged amendments
to sections 188 and 189 since Proposition 7 was enacted in 1978 shows that
the initiative did not prevent the Legislature from amending those sections.
(See Stats. 1981, ch. 404, p. 1593; Stats. 1982, ch. 893, § 4; Stats. 1982,
ch. 949, p. 3438; Stats. 1982, ch. 950, p. 3440.) For instance, Senate Bill
54 (1981-1982 Reg. Sess.) amended the definition of malice in section 188
and the definition of deliberate and premeditated in section 189. (Stats.
1981, ch. 404, Leg. Counsel’s Digest & §§ 6-7.) No one argued that
Proposition 7 prohibited those changes. (See County of San Diego v.
Commission on State Mandates (2018) 6 Cal.5th 196, 212 [considering
history of legislative amendments when rejecting argument that initiatives
prohibited such amendment].)
Nor has Proposition 7 proved a consideration when courts discuss
the limits or elements of felony murder or the “natural and probable
consequences” doctrine. For instance, in Chun, supra, 45 Cal.4th 1172, the
(continued…)
18
B. Petitioner Misapprehends Proposition 7’s Scope.
Petitioner contends that the voters incorporated sections 187, 188, and
189 into Proposition 7. (See Petn. at pp. 30-33.) This conclusion has no
support in the text, which does not amend those statutes. (See Prop. 7,
§§ 1-12.) And it has no support in the ballot materials, which do not
discuss those sections. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at
pp. 32-35.) Because voters did not have an opportunity to consider this
objective, it is not part of the initiative. (See Knight, supra, 128
Cal.App.4th at p. 26.)
Despite the lack of any persuasive evidence, Petitioner contends that

by amending sections 190 through 190.5, which mention first and second
degree murder, the voters implicitly incorporated sections 187, 188, and
189 into Proposition 7. (Petn. 32-33.) Petitioner relies on In re Oluwa
(1989) 207 Cal.App.3d 439 for support. (Id. at p. 32.) In that case, the
court addressed whether a prisoner could use work credits to reduce his 15-
years-to-life sentence for second degree felony murder. (Oluwa, supra, 207
Cal.App.3d at p. 442.) Proposition 7 added language to section 190
providing that the article in the Penal Code starting with section 2930
(…continued)
Supreme Court upheld the second degree felony-murder rule against a
challenge that it was a “a judicially created doctrine with no statutory
basis.” (Id. at p. 1180.) Had Proposition 7 somehow codified that rule, the
Court’s analysis of its history would have been much shorter. (See id. at
pp. 1180-1188 [not mentioning Proposition 7 in historical analysis of
statutory basis for second degree felony murder]; see also, e.g., Prettyman,
supra, 14 Cal.4th at pp. 262-270 [no mention of Proposition 7 imposing
limitations when holding that 1992 jury instruction requiring trial courts to
identify an uncharged target offense should have been used in “natural and
probable consequences” murder case]; Chiu, supra, 59 Cal.4th at pp. 165-
167 [no mention of Proposition 7 imposing limitations when holding that
holding that “a defendant cannot be convicted of first degree premeditated
murder under the natural and probable consequences doctrine”].)
19
governed custody credits. (Id. at p. 445.) As amended, section 190 stated
that the referenced article “shall apply to reduce any minimum term of 25
or 15 years in state prison imposed pursuant to this section,” and that “such
person shall not otherwise be released on parole prior to such time.”
(Prop. 7, § 2.) The prisoner requested that his sentence be reduced based
on a section added to that article after Proposition 7 was enacted. (Ibid.).
The court rejected his request, relying on the principle of statutory
interpretation that “where a statute adopts by specific reference the
provisions of another statute . . . such provisions are incorporated in the
form in which they exist at the time of the reference and not as
subsequently modified.” (Ibid., quoting Palermo v. Stockton Theatres, Inc.

(1948) 32 Cal.2d 53, 58-59.) It distinguished the “cognate rule . . . that
were the reference is general instead of specific, such as a reference to a
system or body of law relating to the subject at hand, the referring statute
takes the law or laws referred . . . as they may be changed from time to
time[.]” (Ibid., quoting Palermo, supra, 32 Cal.2d at pp. 58-59.)
Here, the reference in Proposition 7 is quite different. It mentions
“person[s] guilty of murder in the first degree” and “person[s] guilty of
murder in the second degree.” (See Prop. 7, § 2.) It does not specifically
identify sections 187, 188, and 189, state that they “shall apply,” or that
they “shall not otherwise be” changed. (See ibid.) These references are
exactly the sort of general references that are subject to amendment. (See
Palermo, supra, 32 Cal.2d at pp. 58-59.) They cannot be used to prevent
the Legislature from acting. (See Cooper, supra, 27 Cal.4th at p. 46
[distinguishing Oluwa and upholding law providing for presentence
conduct credits because provisions referenced in Proposition 7 addressed
only postsentence credits].)
Petitioner also contends that S.B. 1437 goes to the “heart of
Proposition 7.” (See Petn. at p. 43.) But S.B. 1437 does not reduce the
20
penalty for the murderers who were the focus of Proposition 7—those who
act with the intent to kill, like Charles Manson and the Zodiac Killer. (See
Ballot Pamp., Gen. Elec. (Nov. 7, 1978), at p. 34.) Nor does it weaken the
“nation’s toughest, most effective death penalty law.” (See ibid.) 7
Petitioner mistakenly relies on Quackenbush. (Petn. at pp. 34-35.) In
that case, the voters adopted Proposition 103, a comprehensive set of rules
designed to regulate the insurance industry and protect consumers.
(Quackenbush, supra, 64 Cal.App.4th at pp. 1478-1479.) The initiative
rolled back insurance rates, made the Insurance Commissioner an elected
office, and vested it with authority to “adopt a ratemaking formula to
implement the rate rollback requirement.” (Id. at pp. 1479, 1486.) The

Legislature then enacted a statute requiring that certain costs, such as
premium taxes and commissions, be included in insurer’s rollback
obligations, and prohibiting insurers from seeking reimbursement for those
costs from the State. (Id. at p. 1480.) The Court held that statute amended
Proposition 103 because it restricted the Commissioner’s discretion to
determine how those costs should be treated. (Id. at p. 1486.)
Section 1170.95 is different; it leaves intact Proposition 7’s sentencing
scheme. (See id. at pp. 1486-1487.)
7
In addition, a large subset, if not all, of the people now excluded
from liability under the felony-murder rule or the “natural and probable
consequences” doctrine by subdivision (e) of section 189 were not eligible
for death before S.B. 1437 was enacted. (See § 109.2, subds. (d); Banks,
supra, 61 Cal.4th at p. 332 [“felony-murder participants [are] eligible for
death only when their involvement is substantial and they demonstrate a
reckless indifference to the grave risk of death created by their actions”];
see also Chiu, supra, 59 Cal.4th at p. 890 [“a defendant cannot be convicted
of first degree premeditated murder under the natural and probable
consequences doctrine”].)
21
C. Section 1170.95 Does Not Amend Proposition 7.
Petitioner also argues that section 1170.95 amends Proposition 7

because it “allows someone who was convicted of murder, lawfully and as
a matter of historical fact, to secure a sentence less than that mandated in
section 190[.]” (Petn. at pp. 48-49.) Sentencing did motivate the
Legislature, in part, to enact S.B. 1437. (Stats. 2018, ch. 1015, § 1,
subd. (f).) But the lawmakers’ concern was not that murderers are, or had
been, sentenced too harshly; rather, it was that those who do not meet the
amended mens rea requirements set forth in sections 188 and 189 should
not be, or should not have been, convicted of murder. (See Stats. 2018,

ch. 1015, § 1, subd. (e) [discussing “culpability of the individual].)
Section 1170.95 addresses that concern without amending
Proposition 7. It creates a procedure for vacating murder convictions of
people who had not themselves killed anyone, acted with the intent to kill,
or acted as a major participant in a felony with reckless indifference to
human life. (§ 1170.95, subd. (d)(2).) Anyone who has a conviction
vacated would no longer be “guilty of murder,” and section 190’s
mandatory penalties would no longer apply. (Cf. People v. Sumstine (1984)
36 Cal.3d 909, 920 [“When the issuance of a writ of habeas corpus vacates
the underlying conviction, the judgment ceases to exist for all purposes”].)
II. S.B. 1437 DOES NOT AMEND PROPOSITION 115
Although Proposition 115 is different from Proposition 7 in that it

amended the crime of murder in section 189 instead of the punishment for
murder, the analysis is the same as the analysis of Proposition 7.
(Prop. 115, § 9.) Proposition 115 added kidnapping, train wrecking,
sodomy, oral copulation, and forcible sexual penetration to the list of
predicate felonies for first degree murder in section 189. It did not restrict
22
the Legislature’s authority to change the culpability requirement to convict
for murder. S.B. 1437 thus did not amend Proposition 115.
Petitioner’s arguments to the contrary lack merit. (See Petn. at p. 49-
53.) Petitioner contends that Proposition 115, by reenacting section 189 in
its entirety, implicitly reenacted liability for the five new offenses under the
felony-murder rule and “natural and probable consequences” doctrine. (See
Petn. at p. 50.) Technical reenactment does not, however, prevent the
Legislature from amending portions of a reenacted section that are not
“integral to accomplishing the electorate’s goals in enacting the initiative”
absent “other indicia . . . that the voters reasonably intended to limit the
Legislature’s ability to amend that part of the statute.” (County of San

Diego, supra, 6 Cal.5th at p. 214 [“When technical reenactments are
required under article IV, section 9 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”].) Petitioner cites this standard but misapplies
it. (See Petn. at p. 49.)
Proposition 115 added to the list of predicate crimes that can form the
basis of a first degree murder conviction. (Prop. 115, § 9.) Although, at the
time, such a conviction could have been based on the felony-murder rule or
the “natural and probable consequences” doctrine, Proposition 115 did not
address either of those theories. Nor, more importantly, did it address the
mental state necessary to establish criminal liability under either theory.
Nothing in the ballot materials discussed the felony-murder rule, the
“natural and probable consequences” doctrine, or the mental state for
murder. The Legislative Analyst’s analysis explains that the “proposal
makes numerous significant and complex changes in criminal law and in
the judicial procedures that must be followed in criminal cases.” (Ballot
Pamp., Prim. Elec. (June 5, 1990), at p. 32.) The discussion of those
23
changes does not mention the felony-murder rule or the “natural and
probable consequences” doctrine. (Id. at pp. 32-33.) Nor do the arguments
by proponents or opponents of the initiative. (Id. at pp. 34-35.)
Accordingly, S.B. 1437 did not amend Proposition 115.
CONCLUSION
For the foregoing reasons, the petition for writ of mandate should be
denied.
Dated: July 12, 2019 Respectfully submitted,
XAVIER BECERRA

Attorney General of California
THOMAS S. PATTERSON
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
/s/ Nelson Richards

NELSON R. RICHARDS
Deputy Attorney General
Attorneys for the Attorney General as Amicus
Curiae in support of Real Party in Interest
24
CERTIFICATE OF COMPLIANCE
I certify that the attached Attorney General’s Amicus Curiae Brief in

Support of Real Parties in Interest uses a 13 point Times New Roman font
and contains 5,364 words.
Dated: July 12, 2019 XAVIER BECERRA

Attorney General of California
/s/ Nelson Richards

NELSON R. RICHARDS

Deputy Attorney General
Attorneys for the Attorney General as Amicus
Curiae in support of Real Party in Interest
25

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION ONE

Document received by the CA 4th District Court of Appeal Division 1.