People v. Kness CA2/6

Filed 8/24/20 P. v. Kness CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B299645 (Super. Ct. No. F000278122) Plaintiff and Respondent, (San Luis Obispo County)

v.

ALLEN REED KNESS,

Defendant and Appellant.

Allen Reed Kness appeals an order denying his petition for resentencing pursuant to Penal Code1 section 1170.95. Kness contends the trial court erred when it found Senate Bill No. 1437 (SB 1437) unconstitutional. We agree and reverse. PROCEDURAL HISTORY Kness aided and abetted in a murder. The jury found him guilty of second degree murder (§§ 187, subd. (a), 189, subd.

1 Further unspecified statutory references are to the Penal Code.

(b)), but found not true the allegation that he personally used a deadly and dangerous weapon in the commission of the crime (§ 12022, subd. (b)). The trial court sentenced him to 15 years to life. We affirmed the judgment in an unpublished decision. (People v. Kness (May 7, 2001, B139989) [nonpub. opn.].) Following the enactment of SB 1437 in 2018, Kness filed a petition for resentencing pursuant to section 1170.95. He declared he was convicted of second degree murder “pursuant to the felony murder or the natural and probable consequences rule” and “could not now be convicted of murder because of changes made to Penal Code § 188.” The court denied the petition, finding SB 1437 unconstitutional. DISCUSSION The District Attorney contends the trial court properly determined SB 1437 unconstitutional because it (1) unlawfully amends Propositions 7 and 115, (2) violates the separation of powers, and (3) violates Marsy’s Law. Since the trial court’s ruling, several courts, including our own in People v. Bucio (2020) 48 Cal.App.5th 300 (Bucio), rejected these same arguments and upheld the constitutionality of SB 1437. (See also People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 (Gooden); People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux); People v. Solis (2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th 740; People v. Johns (2020) 50 Cal.App.5th 46; People v. Prado (2020) 49 Cal.App.5th 480; People v. Smith (2020) 49 Cal.App.5th 85.) Consistent with our recent opinion in Bucio, we conclude SB 1437 is constitutional. SB 1437 “amended section 188, which defines malice. Now, to be convicted of murder, a principal must act with malice aforethought . . . . [SB 1437] also amended section 189 to restrict