People v. Rivera CA4/3

Filed 11/6/20 P. v. Rivera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058213

v. (Super. Ct. No. 96CF0802)

JUAN CARLOS RIVERA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, James Edward Rogan, Judge. Reversed and remanded with directions. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.

Defendant Juan Carlos Rivera appeals from the lower court’s denial of his petition for resentencing under Penal Code section 1170.95 (undesignated statutory references are to the Penal Code). The court found the legislation enacting section 1170.95 violated article II, section 10, subdivision (c) of the California Constitution by improperly amending 1978’s Proposition 7 and 1990’s Proposition 115. As a result, the court found defendant was not entitled to relief under section 1170.95. We reverse. FACTUAL BACKGROUND In 1998, a jury convicted defendant of second degree murder, misdemeanor assault, and dissuading a witness. The trial court separately found true a criminal street gang enhancement on the dissuading charge, and allegations of a prior strike and a prior serious felony conviction. Defendant was sentenced to 30 years to life on the murder, plus a consecutive 14 years on the other charges and enhancements. His conviction was affirmed in part, and reversed in part to correct custody credits. (People v. Diaz, et al. (Mar. 28, 2001, G023892, G025088) [nonpub. opn.].) In 2019, defendant filed a petition seeking resentencing on the murder count pursuant to section 1170.95. The court denied the petition, finding Senate Bill No. 1437 (Stats. 2018, ch. 1015; SB 1437)—the legislation that, among other things, enacted section 1170.95—was unconstitutional. The court found SB 1437 “materially amend[ed] [section] 190, as enacted by the electorate via Proposition 7, in a manner inconsistent with the electorate’s intent and without the electorate’s approval,” and “materially amend[ed] [sections] 189 and . . . 190.2, as amended by the electorate via Proposition 115, in a manner inconsistent with the electorate’s intent and without the required two- thirds majority of both houses of the California Legislature as required under the initiative.” The court did not address whether defendant otherwise qualified for relief under section 1170.95. Defendant appeals, contending the lower court erred by finding SB 1437 unconstitutional. He seeks reversal of the order denying his section 1170.95 petition and