People v. Lugo CA4/3

Filed 9/29/20 P. v. Lugo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G058523

v. (Super. Ct. No. 08WF0147)

JOSEPH LUGO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Reversed and remanded. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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This is an appeal from an order summarily denying defendant’s petition to 1 dismiss his murder conviction. (Pen. Code, § 1170.95.) The trial court denied the petition because it found that the enabling legislation violates the California Constitution. (Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill 1437.) We disagree. Senate Bill 1437 did not directly amend any initiative statutes. Senate Bill 1437 also did not indirectly amend any initiative measures. We therefore reverse and remand so that defendant’s section 1170.95 petition can be considered on its merits.

I PROCEDURAL BACKGROUND In 2010, a jury found defendant Joseph Lugo guilty of first degree murder, attempted murder, and a substantive gang offense. The jury also found true related firearm and gang allegations. The trial court sentenced defendant to an aggregate prison term of 25 years to life. In 2019, defendant filed a section 1170.95 petition. Defendant averred, “I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and “I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§188 and 189, effective January 1, 2019.” The prosecution argued “Senate Bill 1437 violates the California Constitution.” In the alternative, the prosecution argued under section 1170.95, 2 defendant “is statutorily ineligible.” The trial court found Senate Bill 1437 to be unconstitutional.