People v. Velten CA2/6

Filed 8/24/20 P. v. Velten CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B298964 (Super. Ct. No. F000464362002) Plaintiff and Respondent, (San Luis Obispo County)

v.

JENNIFER VELTEN,

Defendant and Appellant.

Jennifer Velten appeals from a postjudgment order denying her petition for resentencing under Penal Code1 section 1170.95. Appellant contends the court erred in finding that Senate Bill No. (SB) 1437, pursuant to which section 1170.95 was enacted, is unconstitutional. We agree and accordingly reverse. FACTUAL AND PROCEDURAL HISTORY In 2012, appellant was charged with murder (§ 187, subd. (a)), burglary (§ 459), and robbery (§ 211). After a preliminary

1 All undesignated statutory references are to the Penal Code.

hearing, appellant pleaded guilty to second degree murder and was sentenced to 15 years to life in state prison. Following the enactment of SB 1437, appellant filed a petition for resentencing pursuant to section 1170.95. The prosecution moved to dismiss the petition on the ground that SB 1437 is unconstitutional. In its motion, the prosecution contended that SB 1437 unconstitutionally amended Propositions 7 and 115. The prosecution also argued that SB 1437 conflicts with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law). In its reply to appellant’s opposition, the prosecution further asserted that SB 1437 violates the separation of powers doctrine by undermining the finality of court judgments. In its ruling, the court stated that the evidence at appellant’s preliminary hearing “showed probable cause to believe that [appellant] and three codefendants participated in the burglary and robbery of the victim, in a residential motel, resulting in a co-defendant stabbing the victim to death. It is clear that for purposes of the preliminary hearing that the People relied on a felony murder theory.” The court nevertheless denied the petition, concluding that SB 1437 “violate[s] the California Constitution by violating the separation of powers doctrine, the constitutional requirement for finality of judgments, and the due process protections accorded both the parties, and by unconstitutionally amending Propositions 115 and 7. Accordingly, [appellant] cannot, as a matter of law, secure the relief . . . section 1170.95 purports to offer.” DISCUSSION Appellant contends the trial court erred in denying her petition for resentencing under section 1170.95 based on the finding that SB 1437 is unconstitutional. We agree. SB 1437, which went into effect on January 1, 2019, amended the definition of murder in sections 188 and 189 to