People v. Burhop CA4/2

Opinion

Filed 8/28/20 P. v. Burhop CA4/2 See dissenting opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073709

v. (Super.Ct.No. FRE03818)

TRAVIS BURHOP, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.

Richard Power, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney

General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for the

Attorney General as Amicus Curiae on behalf of Defendant and Appellant.

1 Jason Anderson, District Attorney, and James R. Secord, Deputy District

Attorney, for Plaintiff and Respondent.

I. INTRODUCTION

In 2019, defendant and appellant, Travis Burhop, petitioned the superior court to

vacate his 2015 conviction for second degree murder and resentence him. (Pen. Code,

§ 1170.95.)1 The court denied the petition on the grounds that Senate Bill No. 1437

(2017-2018 Reg. Sess.) (Senate Bill 1437), which, effective January 1, 2019, amended

the definition of murder (§§ 188, 189) and added section 1170.95 to the Penal Code, is

unconstitutional because it impermissibly amended two initiate statutes, Proposition 7

(Prop. 7, Gen. Elec. (Nov. 7, 1978); Proposition 7) and Proposition 115 (Prop. 115,

Primary Elec. (June 5, 1990); Proposition 115). We reverse the judgment denying

defendant’s petition and remand the matter with directions to conduct further proceedings

on the petition.

II. FACTS AND PROCEDURAL BACKGROUND

In 2001, a jury convicted defendant of one count of first degree murder (§ 187,

subd. (a)) and one count of premeditated attempted murder (§§664, subd. (a),

187, subd. (a)), each with an armed principal enhancement (§ 12022, subd. (a)(1).)

Defendant admitted one prison prior (former § 667.5, subd. (b)) in exchange for striking

the punishment on one of the armed enhancements. Defendant was sentenced to 27 years

to life in prison.

1 Undesignated statutory references are to the Penal Code.

2 Defendant appealed, and this court affirmed his judgment of conviction and

sentence. (People v. Burhop (Aug. 10, 2004, E032717) [nonpub. opn.].) We held,

among other things, that substantial evidence supported defendant’s convictions for first

degree murder and premeditated attempted murder under the natural and probable

consequences doctrine. (Ibid.) That is, we concluded substantial evidence showed that

defendant intentionally aided and abetted an assault by means of force likely to produce

great bodily injury, and that the murder and attempted murder were natural and probable

consequences of the intended aggravated assault. (Ibid.)

The evidence at defendant’s trial showed the following: In 1999, defendant paid

Thomas Richard Baugh to “beat up or ‘take out’ ” K.R., also known as “Spike.” (People

v. Burhop, supra, E032717.) Baugh recruited two other persons, Robert Edward

Baldasaro and Caleb East, to assist him in the assault. (Ibid.) Defendant was claiming

that Spike owed defendant money. (Ibid.) Spike had used defendant’s money to

purchase ephedrine for defendant but sold the ephedrine and did not repay defendant.

(Ibid.) Ephedrine is a chemical used in manufacturing methamphetamine. (Ibid.)

Defendant sold methamphetamine. (Ibid.)

On November 19-20, 1999, Baugh and Baldesaro were looking for Spike. (People

v. Burhop, supra, E032717.) Baldesaro was “wacked out” on drugs. (Ibid.) Shortly

before 3:00 a.m. on November 20, 17-year-old G. C. and 16-year-old H. J. were sitting on

the front porch of a Redlands apartment. (Ibid.) Around one week earlier, Spike had

been evicted from the apartment. (Ibid.) Baldesaro walked up to the porch and, after

asking for a light, fired six or seven shots at G. C. and H. J. (Ibid.) G. C. died from two

3 gunshot wound to his chest. (Ibid.) H. J. was struck several times but survived. (Ibid.)

Spike and G. C. had similar hair, and the People claimed the shooting was a case of

mistaken identity. (Ibid.)

In 2015, defendant filed a habeas petition. The habeas petition is not part of the

record in this appeal, but defendant represents that his habeas petition was based on

People v. Chiu (2014) 59 Cal.4th 155. In Chui, our Supreme Court held that an aider and

abettor cannot be convicted of first degree premediated murder based on the natural and

probable consequences doctrine. (Id. at pp. 165-167.) Rather, the “punishment for

second degree murder is commensurate with a defendant’s culpability for aiding and

abetting a target crime that would naturally, probably, and foreseeably result in a murder

under the natural and probable consequences doctrine.” (Id. at p. 166.) An aider and

abettor “may still be convicted of first degree premediated murder based on direct aiding

and abetting principles”; that is, if the aider and abettor “encouraged the commission of

the murder with the intent or knowledge of the unlawful purpose of the perpetrator and

with the intent or purpose of committing, encouraging, or facilitating its commission.”

(Id. at pp. 166-167.) The parties settled defendant’s habeas proceeding by stipulating to

reduce his first degree murder conviction to second degree murder. Defendant was then

resentenced to 17 years to life in prison.

In 2019, defendant petitioned the superior court to vacate his second degree

murder conviction and to resentence him under section 1170.95.

4 III. DISCUSSION

On September 30, 2018, the Governor signed Senate Bill 1437 into law, and the

bill became effective on January 1, 2019. (Cal. Const., art. II, § 10.) The bill redefined

murder, in certain circumstances, by “amend[ing] the felony murder rule and the natural

and probable consequences doctrine, as it relates to murder, 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 was not a major participant in the underlying felony who acted with reckless

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill changed the

definition of murder by amending Penal Code sections 188 and 189. (Stats. 2018,

ch. 1015, §§ 2-3.) The bill also added section 1170.95 to the Penal Code. (Stats. 2018,

ch. 1015, § 4.) Section 1170.95 allows persons convicted of first or second degree

murder, under the former felony-murder rule or the former natural and probable

consequences doctrine, to petition the superior court to vacate their murder convictions

and resentence them.

As noted, in 2019, defendant petitioned the superior court to vacate his 2015

second degree murder conviction and to resentence him under section 1170.95. The

superior court denied defendant’s petition on the ground that Senate Bill 1437 is

unconstitutional in that it impermissibly amended Propositions 7 and 115. In this appeal,

defendant, joined by the Attorney General in an amicus brief, claims the petition was

erroneously denied because Senate Bill 1437 did not amend Propositions 7 or 115.

Defendant and the Attorney General also claim that Senate Bill 1437 did not

impermissibly amend a third initiate statute, Proposition 9 (Prop. 9, Gen. Elec.

5 (Nov. 4, 2008); Proposition 9), or violate separation of powers principles. Respondent,

the People, represented by the Riverside County District Attorney (the district attorney),

defend the judgment denying defendant’s section 1170.95 petition.

The arguments that the district attorney raises in support of the judgment denying

defendant’s petition were thoroughly considered and rejected by our Division One

colleagues in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux) (Senate Bill

1437 does not violate Propositions 7, 115, or 9, or separation of powers principles), and

People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Senate Bill 1437 does

not violate Propositions 7 or 115). Subsequently, this court and all other appellate courts

that have considered these issues have either followed Lamoureux and Gooden or have

otherwise concluded that Senate Bill 1437 is constitutionally valid. (People v. Lippert

(Aug. 11, 2020, E072688) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 754] (Lippert));

People v. Nash (Aug. 3, 2020) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 724] (Nash);

People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896; People v. Lopez (2020)

51 Cal.App.5th 589; People v. Alaybue (2020) 51 Cal.App.5th 207; People v. Johns

(2020) 50 Cal.App.5th 46 (Johns); People v. Prado (2020) 49 Cal.App.5th 480; People v.

Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835; People v. Bucio

(2020) 48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762; People v. Cruz

(2020) 46 Cal.App.5th 740.)

In a thoughtful dissenting opinion in Lippert, Presiding Justice Ramirez concluded

that Senate Bill 1437 is unconstitutional because it impermissibly amended Proposition 7

and because it violates separation of powers principles. (Lippert, supra, ___ Cal.App.5th

6 ___ [2020 Cal.App. Lexis 754, pp. *15-*37] (dis. opn. of Ramirez, P.J.).) Presiding

Justice Ramirez reiterates these same concerns in his dissenting opinion in this case.

Earlier, in a concurring and dissenting opinion in Nash, Acting Presiding Justice

Poochigian likewise concluded that Senate Bill No. 1437 is unconstitutional because it

impermissibly amended Proposition 7. (Nash, supra, ___ Cal.App.5th ___ [2020

Cal.App. Lexis 724, at pp. *64-*69] (conc. & dis. opn. of Poochigian, Acting P.J.).)

Here, it is unnecessary to further discuss the constitutional validity of Senate Bill

1437, given that its constitutional validity, and the dissenting views of its constitutional

invalidity, have been so thoroughly discussed in the extant case law. Instead, we follow

and adopt the reasoning of Lamoureux, Gooden, of this court’s decision in Johns, of the

majority opinion in Lippert, and of the other decisions upholding the constitutional

validity of Senate Bill 1437. For the reasons explained in these decisions, we conclude

that Senate Bill 1437 did not amend Propositions 7, 115, or 9; does not violate separation

of powers principles; and is, therefore, constitutionally valid.

7 IV. DISPOSITION

The judgment is reversed. The matter is remanded to the superior court for further

proceedings on defendant’s section 1170.95 petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. I concur:

RAPHAEL J.

8 [The People v. Travis Burhop, E073079]

RAMIREZ, P.J.

I respectfully dissent. For the reasons that I stated in my dissent in People v.

Lippert (2020) ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 754], I believe Senate Bill

No. 1437 (2017-2018 Reg. Sess.) (SB 1437) is unconstitutional because (1) it amends

Proposition 7, and (2) it violates the separation of powers. RAMIREZ P. J.