Cal. Legislature’s Rescue of Murderers Upheld

Los Angeles District Attorney George Gascón is engaged in an all-out effort to reduce the sentences of LA murderers. Among the beneficiaries of Gascón’s efforts is Scott Collins, who gunned down Fred Rose in 1992, stole his car, then drove the car to Fresno to use it in a drive-by shooting. For this he was justly sentenced to death, and the judgment has been upheld on both direct appeal and state habeas corpus.

Despite Gascón’s defection, there appeared to be a strong chance of stopping his intended miscarriage of justice until the murderer-friendly California Legislature came to his aid.One of Gascón’s tactics is asking the trial court to recall the case and resentence the defendant. This tactic was, until this summer, based on a provision of the Penal Code allowing such recalls that was formerly in section 1170(d) but was moved to section 1170.03 last year. Both sections are part of the Determinate Sentencing Law. Another provision of section 1170 says, “Nothing in this article [i.e., the DSL] shall affect any provision of law which imposes the death penalty, which authorizes or restricts the granting or probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life.”

In the Collins matter, both attorneys for the victim’s family and the Criminal Justice Legal Foundation, on behalf of itself and the California District Attorneys Association, filed amicus briefs invoking that language and arguing that the recall/resentence authority does not extend to death sentences or to life sentences. That would preclude its application to murder cases, as those are the only authorized sentences for murder in California.

The leadership of the California Legislature responded by ramming through a “fix” in a way that gave essentially no notice or opportunity to be heard to people who would oppose such a measure.  The fix moves the resentencing provision out of the DSL for the specific purpose of making it apply to life and death sentences. Beyond that, they made their fix effective immediately without the 2/3 vote normally needed for “urgency measures” through a constitutionally dubious tactic known as the budget trailer spot bill. The ramming through is dirty politics for which those who voted for the bill deserve to be held accountable at the polls. The immediate effect raised a constitutional issue for the courts.

Here we get rather deep into the legislative weeds. Most legislation in California takes effect on New Years Day following enactment. Exceptions include “urgency” measures that pass by a 2/3 vote, the state budget, and budget “trailer” bills needed to implement the budget and identified as such in the budget bill. Here is a description of AB 200 and its history from our supplemental amicus brief:

AB 200 was introduced on January 8, 2021 and amended to add a comma on February 18, 2021. With the comma amendment, the content of the bill in its entirety was: “It is the intent of the Legislature to enact statutory changes, relating to the Budget Act of 2021.” That is how it still read on June 15, 2022, when the Budget Act of 2022, SB 154, was enrolled and presented to the Governor. Section 39.00 of the latter act declared that AB 200, among many others, were bills “providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution.” One may wonder how a bill that makes no appropriation and states only an intent to make changes related to the prior year’s budget bill could possibly qualify for such a declaration, but that is what the budget bill says.

AB 200 was the subject of an evisceration amendment on June 26, 2022, eleven days after enrollment of the budget bill. The subject was changed from “Budget Act of 2021” to “Public safety omnibus.” The text of the bill was replaced in its entirety. The language quoted above was deleted, and the entire text of the “amended” bill was in the amendment. Nothing was left of the original bill but its number.

Section 7 of AB 200 adds a heading for a new Article 1.5 titled “Recall and Resentencing.” commencing with section 1172. Section 9 renumbers section 1170.03 as section 1172.1, implicitly placing it in the new article. The Legislative Counsel’s Digest and the committee report contradict each other on whether this is a substantive change in the law or a mere technical change. The former says in part (7), “This bill would renumber these provisions and place them in a new article, thereby making certain provisions that exclude certain persons from their use inapplicable to these renumbered provisions.” However, the Senate Budget Committee Report on the bill at page 2 characterizes the changes as “technical” and “renumbering” with no mention of a substantive change in the scope of the law. Permitting the recall of the sentences of murderers previously ineligible, in violation of the spirit and possibly the letter of victims’ constitutional rights to a final conclusion (see Cal. Const. art. I § 28, subd. (b)(9)), can hardly be characterized as “technical.”

The bill was listed on the hearing agenda for the Budget Committee the next day, along with 28 other bills covering a wide variety of subjects. No meaningful notice or opportunity to be heard was given to the public. There were no hearings in the criminal justice committees of either house. Amicus CDAA, which regularly tracks legislation related to criminal justice, was unaware of the bill until it was too late. The committee report listed both support and opposition as “None on file,” for the obvious reason that this was a stealth bill being rammed through in a process that was secret for all practical purposes. The Senate and Assembly floor analyses were the same as the committee report, stating that the bill made only technical changes. The bill passed both houses on June 29, 2022, the first day it constitutionally could (see Cal. Const. art. IV § 8, subd. (b)), under circumstances making it was highly unlikely that many of the members were aware that it had the effect now asserted by the People. It was signed by the Governor the next day.

In 2013, the California Court of Appeal for the Third District held in Howard Jarvis Taxpayer Assn. v. Bowen that such spot bills do not qualify for immediate effect. When a bill is “amended” so completely that it shares nothing with the original but the number, it is not the same bill that was “identified” in the budget act. Regrettably, the California Supreme Court exercised its authority (unique to California) to “depublish” this opinion, effectively forbidding citation of or reliance on it in California courts. Why they did that is unexplained. I suspect that a desire to avoid angering the Legislature during times of severe budget problems was a factor. The opinion can still be found in unofficial reporters at 151 Cal. Rptr. 3d 762, 2013 Cal. App. LEXIS 38, 2013 WL 205323.

That brings us back to the Collins case. Although forbidden to the cite the HJTA v. Bowen precedent, we argued the same constitutional theory. Disappointingly, the judge dismissed this argument without discussion. The entire holding on this point is: “While the amici CJLF and CDAA contend that AB 200’s enactment is an improper budget trailer bill, they bear the burden of clearly showing that an enacted statute is unconstitutional. [Citations.] That presumption has not been overcome.”

I have no quarrel with the statement that we bear the burden. I believe we carried it. An explanation of the conclusion that we did not would have been nice.

Only parties can appeal, not amici curiae (“friends of the court”). Whether the victims can seek extraordinary writ relief in a higher court is a question worth considering.

For the benefit of California voters, here are the members of the Legislature who voted for murderers against victims, to strip the victims of the finality they had been promised:

Assembly: Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Bloom, Boerner Horvath, Mia Bonta, Bryan, Calderon, Carrillo, Cervantes, Cooley, Cooper, Daly, Mike Fong, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gray, Grayson, Haney, Holden, Irwin, Jones-Sawyer, Kalra, Lee, Levine, Low, McCarty, McKinnor, Medina, Mullin, Muratsuchi, Nazarian, O’Donnell, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Stone, Ting, Villapudua, Ward, Akilah Weber, Wicks, Wilson, Wood, Rendon

Senate: Allen, Archuleta, Atkins, Becker, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Hertzberg, Hueso, Hurtado, Kamlager, Leyva, Limón, McGuire, Min, Newman, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

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