8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO

9 CENTRAL DIVISION
l0

11 THE PEOPLE OF THE STATE OF ) No. 381687-3

CALIFORNIA, )
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Plaintiff, )
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14 v_
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l5 DAVID GENE KANGAS, )
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16 Defendant. )

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0n August 12, 1988, David Gene Kangas (hereinafter “Defendant”) pled guilty to the first
2O

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degree murder of Timothy Earl Kachuck. On September 14, 1988, Defendant was sentenced to a

22 tenn of twenty-five years to life in prison by the Honorable Judge Vartabedian. On November 18 ’

23 1988, Defendant’s request for a certificate of probable cause on appeal was denied.

24
On January 4, 201 9, Defendant filed a Petition for Recall of Sentence (hereinafter

25
“Petition”) pursuant to Penal Code section 1170.95. The People have objected t0 the Petition 0n
26
the grounds that (1) Senate Bill 1437 unconstitutionally amends Proposition 7, (2) Senate Bill

1437 unconstitutionally amends Proposition 115, (3) Penal Code section 1170.95
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supgaxoxcom unconstitutionally violates the separation of powers doctrine, (4) Penal Code section 1170.95
County 0E Fresno
 violates the Victims’ Bill of Rights enacted as part of Proposition 9 (hereinafter “Marsy’s Law”),

and (5) Penal Code section 1170.95 unconstitutionally infringes upon the Governor’s pardon and

commutation power.

SENATE BILL 1437

rThe California Legislature passed Senate Bill 1437 0n September 30, 2018. 1t became

effective January 1, 2019. Senate Bill 1437, in part, makes changes t0 the existing law relating to

accomplice liability under the felony murder rule and eliminates the doctn'ne of natural and

probable consequences as it applies t0 the felony murder rule.

10
Pursuant to Senate Bill 1437 a person is liable for murder under the felony murder rule

11
only if the person was (1) the actual killer, (2) aided, abetted, counseled, commanded, induced,
12
solicited, requested, or assisted the actual killer an_d acted with the intent t0 kill, or (3) was a major
13
panicipant in the underlying felony and acted with reckless indifference t0 human life. (Penal
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15 Code section 189.) In addition, malice no longer may be imputed t0 a person based solely 0n his

l6 0r her participation in a crime, other than the murder itself, based on the theory of natural and

17‘
probable consequences. (Penal Code section 188.) Additionally, Senate Bill 1437 enacted Penal

18
Code section 1170.95 whereby an individual previously convicted of murder who could not be
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convicted under the revised statutes was eligible t0 seek to have his or her conviction vacated and
20
to be resentenced. Senate Bill 1437 also added subdivisions (c) and (d) t0 Penal Code section
21
190.2, however, the People have not challenged that aspect of Senate Bill 14371.
22

23 DISCUSSION

24 Article IV, section 1 of the California Constitution states, “[t]he legislative power of this

25 State is vested in the Califomia Legislature which consists of the Senate and Assembly, but the

26
1
The People argue that Senate Bill 1437 unconstitutionally amended Proposition
27 115 by enacting Penal Code section 189(e). The People argue Penal Code section
189(e) amended Proposition 115 by “making the Penal Code [section] 190.2(d)
28 showing a threshold of liability for first degree felony murdermAs such, SB
SUPERIOR COURT
County of Fresno
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 people reserve to themselves the powers of initiative and referendum.” Article II, section 10 of the

California Constitution states that “[t]he Legislature may amend or repeal an initiative statute by

another statute that becomes effective only when approved by the electors unless the initiative

statute permits amendment or repeal without the electors’ approval.”

“[T]he purpose of California’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.” (People v. Kelly

(2010) 47 Cal.4”‘ 1008, 1025 (hereinafter “Kelly”), citing Proposition I 03 Enforcement Project v.

10
Quackenbush (1998) 64 Cal.App.4th 1473, 1484 (hereinafter “Quackenbush”).)

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“For purposés 0f article II, section 10, subdivision (c), an amendment includes a legislative
12
act that changes an existing initiative statute by taking away fiom it.” (Kelly, supra, 47 Cal.4“‘ at
13
pp. 1026-1 027.) Kelly went on t0 state “despite the stn'ct bar on the Legislature’s authority to
14

15 amend initiative statues, judicial decisions have observed that this body is not thereby precluded

l6 from enacting laws addressing the general subject matter 0f an initiative. The Legislature remains

l7 free to address a "’related but distinct area’” [citations omitted].” (1d. at p. 1025.)

18
The California Supreme Court put it succinctly when addressing whether the Legislature
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had unconstitutionally amended Proposition 115 by enacting Penal Code section 1054.9. The
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Court stated, "In deciding whether this particular provision amends Proposition 115, we simply
21
need t0 ask whether it prohibits what the initiative authorizes, or authorizes what the initiative
22

23 prohibits.” (People v. Superior Court (Pearson), (2010) 48 Ca1.4"‘ 564 at page 571.)

24 Proposition 7

25
Proposition 7 was approved by the voters on November 7, 1978. The purpose 0f the
26
proposition was to (1) increase the penalties for first and second degree murder,
(2) expand the list
27

28 1437 clearly takes away from Proposition 115 by undermining one of its key
underpinnings.” (Supplemental Points and Authorities, page 4, lines l7 to 22.)
SUPERIOR COURT
County of Fresno

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 l of special circumstances requiring a sentence of either death or life in prison without possibility of

2
parole, and (3) revise existing law relating to mitigating or aggravating circumstances. (Ballot
3
Pamphlet, General Election (November 7, 1978).)
4
Proposition 7 made a number of changes to existing murder law. It increased the sentence

for first degree murder to twenty—five (25) years to life and increased the sentence for second
:

degree murder to fifteen (1 5) years to life. (Penal Code section 190.) The remainder 0f changes to
7

8 existing law addressed the requirements for alleging and proving special circumstances which

9 make the defendant death eligible or subj ect to a sentence of life in prison without the possibility
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0f parole.
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Senate Bill 1437 did not alter the punishment for first and/or second degree murder. A
person convicted of either degree of murder is subject to the identical sentence under Senate Bill
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I437 as the one required pursuant to Proposition 7.
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15 It is true that Senate Bill 1437 changed the elements and proof required to convict someone

16 other than the actual killer of either first or second degree murder. Put more plainly, Senate Bill

17 1437 changed who is subj ect to the increased penalties mandated by Proposition 7.

18
The People have argu‘ed the definition of murder in existence at the time of the passage of
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Profiosition 7 was engrafted into the language of Proposition 7. Their argument requires the court

to go beyond the unambiguous language of the initiative in order to interpret Proposition 7

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consistent with their position.
22

23 The Court in Pearson stated, “When we interpret an initiative, we apply the same

24 principles governing statutory cbnstruction. . ..If the language is not ambiguous, we presume the
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voters intended the meaning apparent from that language, and we may not add to the statute or

26 _ _ . -
rewnte 1t to conform to some assumed Intent not apparent fi'om that language. Ifthe language ls
27
ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent
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SUPERIOR COURT
and understanding of a ballot measure.” (Pearson, Id, at page 571.)
County of Fresno
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 1 The language of Proposition 7 unambiguously addressed the punishment imposed for

2
anyone convicted of murder. Proposition 7 did not address the statutes wherein murder is defined.

3
The court will not add to or rewrite Proposition 7 to conform to a presumed intent to engraft the
4
then existing definition of murder into the otherwise unambiguous language of the initiative. If the

voters intended to address the definition of murder they were free to d0 so. They did not.
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7
Senate Bill 1437 addresses the elements necessary to prove murder. That is a related but

8 distinct area from the mandatory sentencing language. passed by the voters in Proposition 7.

9 .Proposition 115

10 Proposition 115 was passed by the voters on June 5, 1990. It amended Penal Code section

11 189 to expand the definition of first degree murder t0 include murder committed during the

12 commission of five additional felony offenses. It also expanded the scope of Penal Code section

13 190.2 by adding subdivisions and

(c) (d).

14 Senate Bill 1437 does not amend the list of felonies that can be us'ed pursuant to the felony

15 murder rule as defined in Penal Code section 189. Kidnapping, sodomy, oral ccpulation of a

16 minor, forced sexual penetration, and train wrecking all remain as listed felonies in Penal Code

17 section 189.

18 Senate Bill 1437 added subdivisions (e) and (f) to Penal Code section 189. Those sections
19 read as follows:

20 (e) A participant in the perpetration or attempted perpetration of a felony listed in

subdivision (a) in which a death occurs is liable for murder only if one of the
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following is proven:

22 (l) The person is the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
23 counseled, commanded, induced, solicited, requested, or assisted the actual killer in
the commission of murder in the first degree.
24 The person was a maj or paxticipant
(3) in the underlying felony and acted with
reckless indifference to human life,
as described in subdivision (d) 0f Section 190.2.
25
(f) Subdivision (e) does not apply to a defendant when the victim is a peace officer

26 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
27 performance of his or her duties.

28

SUPERIOR COURT
County of Fresno
 1 Senate Bill 1437’s addition of subdivisions (e) and to Penal Code section 189 does not
(f)

2 change the definition of first degree murder as laid out in subdivision (a). That definition, as

3 amended pursuant to Proposition 115, remains in full force and effect. Rather, subdivisions (e)

4 and (f) address who is liable for murder under the felony murder rule as defined in subdivision (a).

5 Similarly, the changes to Penal Code section 190.2 pursuant to Proposition 115 remain

6 unaltered. Proposition 115 amended Penal Code section 190.2 so that a person, other than the

7 actual killer, is subject to the death penalty 0r life in prison without the possibility of parole if that

8 person, “with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, 0r

é assists any actor in the commission of murder in the first degree.” (Penal Code section 190.2(0).)

‘10 That language remains after the enactment of Senate Bill 1437.

11 Proposition 115 also amended Penal Code section 190.2 to read, “[n]0twithstanding

l2 subdivision (c), every person, not the actual killer, who, with reckless indifference to human life

13 and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in

14 the commission of a felony enumerated paragraph of subdivision

in (1 7) (a) which results in the

15 death of some person or persons, and who is found guilty of murder in the first degree therefor”

16 qualifies for the death penalty 0r life in prison without the possibility of parole. (Penal Code
l7 section 190.2(d).) That language also remains after the enactment of Senate Bill 143 7.

18 Senate Bill 1437 takes the language 0f Penal Code section 190.2(d) relating to the felony

l9 murder rule and uses it to consistently define who is liable for murder under the felony murder rule

20 pursuant to Penal Code section 189(a). The People argue this constitutes an amendment to

21 Proposition 115.

22 A11 0f the felony offenses listed in Penal Code section 190.2(a)(17) as felony murder
23 special circumstances are also listed as felonies that qualify for 15‘
degree felony murder under

24 Penal Code section 189(a). Murder by means of a destructive device, bomb, or explosive, lying in

25 wait, torture, murder by poison, murder committed by discharging a firearm from a vehicle are all

26 means of proving 15‘

degree murder under Penal Code section 189(a) and also conduct that

27 qualifies as a special’circumstance under Penal Code section 190.2.

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SUPERIOR COURT
County of Fresno
 The People point to Senate Bill 1437 using the language of Penal Code sectiou 190.2(d)
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quoted above in its enactment of Penal Code section 189(6) as evidence of an unconstitutional

amendment of Proposition 115. They argue that by using the language of Penal Code section
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190.2(d) as part of the definition of murder in Penal Code section 189(8) the Legislature has taken

away from Proposition 115 by “undermining one of its key underpinnings.” (People’s
QONU'I

Supplemental Points and Authorities, page 4, lines 21 and 22.) Adding Penal Code section 189(6)

to make who is liable for 1“ degree felony murder under the felony murder rule as defined in Penal

8 Code section 189(a) consistent with what qualifies as felony murder as a special circumstance

9 pursuant to Penal Code section 190.2 does no injury to the underpinnings of Proposition 115. It is

10 consistent with a significant number of factors that can be used both to qualify conduct as 15‘

11 degree murder and/or to qualify someone for the death penalty or life in prison without the

12 possibility of parole.

13 Once again, the rules applicable to interpreting a proposition or initiative are significant.

14 The language of Proposition 115 unambiguously amended Penal Code section 189 to add five
15 additional felony offenses for purposes of the felony murder rule and by enacting Penal Code

16 section 190.2 (c) and (d).

17 As mentioned above, all five felony offenses remain in Penal Code section 189 and Penal

l8 Code section 190.2 (c) and (d) remain unchanged. Senate Bill 1437 did not change those

19 provisions enacted by Proposition 115. Senate Bill 1437 did change the law regarding liability for

20 murder for individuals other than the actual killer. It did so consistent with the language enacted

21 by Proposition 115 in Penal Code section 190.2(d). The People’s argument requires the court to
22 presume an intent by the voters to require an ongoing liability for murder for individuals other than

23 the actual killer consistent with the definitions in effect at the time of the passage of Proposition

24 1 1 5.

25 The language of Proposition 1 15 is unambiguous. Consistent with the language quoted

26 above fi'om Pearson in regard to the plain meaning of Proposition 7, this court will not go behind

27 the unambiguous language of the initiative to engraft an intent to fi'eeze in time the liability for

28 murder of someone other than the killer. If the voters intended to do so they were able to include
SUPERIOR COURT
County ct Fresno

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 1 language to that effect. They did not. This court will not engrafi such an intent Onto the

2 unambiguous language the voters enacted.

3 Separation of Powers

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The People argue that Penal Code section 1170.95 as enacted by Senate Bill 1437 violates

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the separation of powers doctn'ne by infringing upon core judicial powers by commanding courts

to reopen final judgments.

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The authorities relied upon by the People for its position address legislation that revived
8

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cases that had already been dismissed by the court. (Plaut v. Spendthrifi Farm (1995) 514 U.S.

10 211 and People v. Bunn (2002) 27 Cal.4“‘ 1.) Penal Code section 1170.95 does not revive

11 previously dismissed cases but rather creates a mechanism'that allows a persoq convicted of

12
murder to petition the court to modify and/or vacate a criminal conviction due to substantive

13 _

changes 1n .the law.

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The People have not cited any authon'ty for the proposition that retroactive application of
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changes to the law that result'in individuals obtaining the benefit of those changes violate the
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17 separation of powers doctrine. The lack of authority for the People’s position is understandable.

18 If the People’s interpretation of the separation of powers doctrine is correct the results

19 would be both irrational and unjust. Suchan intelpretation would support the following result:

20
Individual one is convicted of crime A and sentenced tolprison. The Legislature changes the law
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in such a way that individual one would no longer be liable under the revised crime A. Going

forward no person would be prosecuted for the condubt individual one engaged in, but individual
::
one is barred from relief and must remain in prison based on the separation of powers doctrine.
24

25 Such an interpretation lacks any semblance ofjustice and is without support in the law. The

26 rationale and holdings of Plaut and Bunn address a completely separate and distinct factual

27
situation where the change in the law extended statutes of limitation and revived previously
28 . .

dlsmlssed cases.
SUPERIOR COURT
Seounty of Fresno
 1 Marsx’s Law
2 The People argue that Penal Code section 1170.95, as enacted by Senate Bill 143 7, violates

3
the California Constitution, article 1, section 28, otherwise known as Marsy’s Law. Marsy’s Law
4
states in part:

6 (5) Victims of crime have a collectively shared right to expect that persons
convicted of committing criminal acts are sufficiently punished in both the manner
7
and the length of the sentences imposed by the courts of the State of California.
8
This right includes the right to expect that the punitive and deterrent effect of
custodial sentences impdsed by the courts will not be undercut or diminished by the
9 granting of rights and privileges to prisoners that arc not required by any provision
of the United States Constitution or by the laws of this State to be granted to any
10 person incarcerated in a penal or other custodial facility in this State as a
punishment or correction for the commission of a crime.
11
(6) Victims of crime are entitled to finality in their criminal cases. Lengthy appeals

12 and other post—judgment proceedings that challenge Criminal convictions, frequent

and difficult parole hearings that threaten to release criminal offenders, and the
13 ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong
the suffering of crime victims for many years after the crimes themselves have been
14 perpetrated. This prolonged suffering of crime victims and their families must come
to an end.
l5
(7) Finally, the People find and declare that the n'ght to public safety extends to

16 public and pn'vate primary, elementary, junior high, and senior high school, and
community college, California State University, University of Califomia, and
17 pn'vate college and university campuses, where students and staff have the right to
bc safe and secure in their persons.
18
(8) To accomplish the goals it is necessary that the laws of California relating to the
criminal justice process be amended in order to protect the legitimate rights of
19
victims of crime.
20 (b) In order to preserve and protect a victim’s rights to justice and due process, a
victim shall be entitled to the following rights:
21 (1) To be treated With fairness and respect for his or her privacy and dignity, and to
be free from intimidation, harassment, and abuse, throughout the criminal or
22 juvenile justicq process.

23 (2) To be reasonably protected from the defendant and persons acting on behalf of
the defendant.
24 (3) To have the safety of the victim and the victim’s family considered in fixihg the
amount of bail and release conditions for the defendant.
25 (4) To prevent the of confidential information or records to the
disclosure
defendant, the defendant’s attorney, or any other person acting on behalf of the
26
defendant, which could be used to locate or harass the victim or the victim’s family
2.7 or which disclose confidential communications made in the course of medical or
counseling treatment, or which-are otherwise privileged or confidential by law.
28 (5) To refuse an interview, deposition, or discovery request by the defendant, the
defendant’s attorney, or any other person acting on behalf of the defendant, and to
SUPERIOR com
County Of Fresno
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 1 set reasonable conditions on the conduct of any such interview to which the victim
consents.
2
(6) To
reasonable notice of and to reasonably confer with the prosecuting agency,
upon request, regarding, the arrest of the defendant if known by the prosecutor, the
3
charges filed, the determination whether to extradite the defendant, and, upon
4 request, to be notified of and informed before any pretn'al disposition of the case.
(7) To reasonable notice of all public proceedings, including delinquency
5 proceedings, upon request, at which the defendant and the prosecutor are entitled to
be present and of all parole or other post-conviction release proceedings, and to be
6
present at all such proceedings.
(8) To be heard, upon request, at any proceeding, including any delinquency
proceeding, involving a post-arrest
release decision, plea, sentencing, post-
8 conviction release decision, or any proceeding in which a right of the victim is at
lssue.
9
(9) To a speedy uial and a prompt and final conclusion of the case and any related
post-judgment proceedings.
10
(10) To provide infonnation to a probation department official conducting a pre-
11 sentence investigation conceming the impact of the offense on the victim and the
victim’s family and any sentencing recommendations before the sentencing of the
l2 defendant.
(1 1) To receive, upon request, the pre-sentence report when available to the
13 defendant, except for those portions made
confidential by law.
(12) To be informed, upon request, of the conviction, sentence, place and time of
14
incarceration, or other disposition of the defendant, the scheduled release date of the

15 defendant, and the release of or the escape by the defendant from custody.
(l3) To restitution.
16 (A) It is the unequivocal intention of the People of the State of California that all
persons who suffer losses as a result of cn'minal activity shall have the right to seek
17 and secure restitution from the persons convicted of the crimes causing the losses
they suffer.
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(B) Restitution shall be ordered from the convicted wrongdocr in every case,
1g regardless of the sentence or disposition imposed, in which a crime victim suffers a
loss.
20 (C) All monetary payments, monies, and property collected from any person who
has been ordered to make restitution shall be first applied to pay the amounts
21 ordered as restitution to the victim.
(14) To the prompt return of property when no longer needed as evidence.
22
(15) To be informed of all parole procedures, to participate in the parole process, to
23 provide information to the parole authority to be considered before the parole of the
offender, and to be notified, upon request, of the parole or other release 0f the
24 offender.
(16) To have the safety of the victim, the victim’s family, and the general public
25
considered before any parole or other post—judgment release decision is made.

26 (17) To be informed of the rights enumerated in paragraphs (1) through (16).

27 (California Constitution, Article 1, section 28, subdivisions (5) through (17).)

28

£35513? $33250
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 Senate Bill 1437 does not change any portion of Marsy’s Law. Victims 0f crime retain all

0f the rights enumerated in Article 1, section 28 of the California Constitution. Marsy’s Law

enumerates the rights 0f victims. Marsy’s Law does not define who commits a crime. That task

remains with the Legislature.

The Governor’s Pardon Authority

1n the People’s Supplemental Points and Authorities they‘raise the additional argument that

Penal Code'section 1170.95 unconstitutionally invades the govemor’s exclusive pardon authority.

The People rest their argument in large part on an attempt to distinguish the ruling in Way v.

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Superior Court (1977) 74 Cal.App.3d 165 from the current case.

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In Way the court upheld the Legislature’s ability t0 retroactively apply the newly enacted
12
determinate sentencing law t0 inmates incarcerated under the previous indeterminate sentencing
13
law. The court held the Legislature’s objective was to apply the new sentencing scheme
l4

15 retroactively in order to prevent defendants convicted of the same offense from being “subj ect to

16 disparate terms solely because of the time when they committed their crimes.” (Id. At p. 177.)

l7 The court found the Legislature’s retroactive application of the determinate sentencing law did not

18
unconstitutionally infringe on the Governor’s pardon and commutation power.

19
Consistent with the court’s reasoning in Way, this court finds Penal Code section 1170.95
20
falls well within the Legislature’s ability and authority t0 ensure that defendants convicted 0f the
21
same crime are punished consistently. Put simply, the Legislature is well within its authority t0
22

23 ensure that people do not remain in prison for conduct that no longer constitutes a crime. To use

24 the language of Way, Penal Code section 1170.95 is not an act of grace but rather a means to

25 “restructure punishments for criminal conduct and to make them uniform to the extent reasonably

26
possible.” (Id. At p. 177.)

27
To read the Govemor’s constitutional pardon and commutation powers in a way that would
28
SUPERIOR COURT
result in individuals being forced t0 remain in prison for murder for conduct the Legislature no
County of Fresno

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 l longer defines as murder is simply untenable. The Legislature has the constitutional authority to

2
define the crime ofi murder and has the equally important authority to seek to ensure that

3
individuals are punished consistently for that crime regaxdless of when their conviction occurred.

Conclusion
:
For the reasons stated above, the comt finds (1) Senate Bill 1437 does not
6

7
unconstitutionally amend Proposition 7, (2) Senate Bill 1437 does not unconstitutionally amend

8 Proposition 115, (3) Penal Code section 1170.95 as enacted by Senate Bill 1437 does not violate

9 the separation of powers doctrine, (4) Penal Code section 1170.95 as enacted by Senate Bill 1437

l0
does not conflict with Marsy’s law, and (5) Penal Code section 1170.95 does not
ll
unconstitutionally infringe on the Governor’s pardon and commutation powers.
12

13
Dated this 18th day of September, 2019.
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.16 @7JONAIHAN SKILES

17' JUDGE OF THE SUPERIOR COURI
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SUPERIOR COURT
County cf Fresno
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