People v. Burnett CA4/3

Filed 11/30/20 P. v. Burnett 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058563

v. (Super. Ct. No. C-94692)

ALLEN DEAN BURNETT II, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Allen Dean Burnett II, appeals from a postjudgment order after the trial 1 court denied his petition pursuant to Penal Code section 1170.95, which the Legislature enacted in Senate Bill No. 1437 (S.B. 1437). Burnett argues the trial court erred by concluding S.B. 1437 was unconstitutional because it impermissibly amended two voter initiatives. We agree and reverse the order. FACTS In 1994, a jury convicted Burnett of first degree murder (§ 187, subd. (a)), second degree robbery (§§ 211), kidnapping (§ 207, subd (a)), kidnapping for robbery (§ 209, subd. (b)), and several special circumstances. The trial court sentenced Burnett to life without possibility of parole. We affirmed the judgment. (People v. Burnett (Sept. 17, 1996, G016443) [nonpub. opn.].) In 2019, Burnett filed a section 1170.95 petition to vacate his murder conviction and be resentenced. The Orange County District Attorney filed an opposition and Burnett filed a reply brief. The trial court denied the petition, concluding S.B. 1437 (Stats. 2018, ch. 1015, §§ 2-4), was unconstitutional because it impermissibly amended Propositions 7 and 115. DISCUSSION “Legislation unconstitutionally amends an initiative statute if it changes that statute ‘“‘by adding or taking from it some particular provision.’”’ [Citations.] Legislation may address the same subject matter as an initiative, and may even augment the provisions of an initiative, without amending it. The key to our analysis is determining ‘“whether [the legislation] prohibits what the initiative authorizes, or authorizes what the initiative prohibits.”’ [Citation.]” (People v. Solis (2020) 46 Cal.App.5th 762, 769 (Solis).) Although our review is de novo, we presume the Legislature acted within its authority. (Id. at p. 771.) 1 All further statutory references are to the Penal Code, unless otherwise indicated.