People v. Thao CA3

Filed 10/29/20 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C089609

Plaintiff and Respondent, (Super. Ct. No. CRF-1998- 5317) v.

PAO THAO,

Defendant and Appellant.

Defendant Pao Thao was convicted of first degree murder and kidnapping in 1999. In 2019 he filed a petition seeking resentencing under Penal Code section 1170.95,1 which was enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) and took effect January 1, 2019. The trial court denied defendant’s petition on the basis that Senate Bill No. 1437 unconstitutionally amends two initiative measures:

1 Undesignated statutory references are to the Penal Code.

1

Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115). On appeal, defendant argues the trial court erred in declining to reach the merits of his petition and determining that Senate Bill No. 1437 is unconstitutional.2 As we explain, we have reached this issue before and see no reason to revisit our earlier decisions. Accordingly, we agree with defendant and reverse the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND In 1999 defendant was convicted of first degree murder and kidnapping. On direct appeal, we reversed the kidnapping conviction, but otherwise affirmed the judgment. (People v. Thao (March 20, 2000, C032213) [nonpub. opn.].) In 2019 defendant filed a form petition for resentencing under section 1170.95. Defendant checked boxes indicating: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he was convicted of first or second degree murder under the felony murder rule or natural and probable consequences doctrine; and (3) he could not now be convicted of first or second degree murder because of the recent changes to sections 188 and 189. The District Attorney opposed the petition, arguing Senate Bill No. 1437, and, consequently, section 1170.95, were unconstitutional. In particular, the District Attorney argued Senate Bill No. 1437 unconstitutionally amended Proposition 7 and Proposition 115 and violated the separation of powers doctrine and the Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law (Ballot Pamp., Gen. Elec. (Nov. 4, 2008)