SB 1437 removes the old “felony murder” law in order to increase the fairness of sentences. In conjunction with SB 1437, a new law — SB 775 — allows people who have been convicted of attempted murder and manslaughter under felony murder theories to qualify for sentence reduction as well. Read below to learn more.
To learn how Spolin Law P.C. can handle your SB 1437 petition, call us at (866) 716-2805.
What is SB 1437?
Senate Bill 1437 makes significant changes to Penal Code Sections 188 and 189. SB 1437 effectively ends the role of the “natural and probable consequences” doctrine in murder cases. It makes it harder for people to be convicted of felony murder and allows many inmates already convicted of felony murder to be resentenced to a lower sentence.
Old Felony Murder Rule
Under the old felony murder rule a person was guilty of “felony murder” if:
- They participated in a serious felony (e.g., carjacking, robbery, burglary, etc.)
- A victim of the felony died during or as a result of the felony
There was no requirement that the person convicted be involved in the killing or even intend for the killing to occur. For example, if during the course of a robbery five people are robbing a victim and one robber shoots the victim, then all five robbers would be guilty of “felony murder,” even if they never wished or had any knowledge that a killing would occur.
New Felony Murder Rule
Under the new felony murder rule (passed by SB 1437) a person can only be guilty of “felony murder” if:
- The person is the actual killer.
- The person acted with intent to kill, such as assisting the actual killer or encouraging the actual killer to kill the victim.
- The person was a major participant in the crime who acted with “reckless indifference to human life.”
- The victim was a police officer, who was killed on the job, and “the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties.”
Who are ‘Major Participants’ in a Crime?
In determining whether a person was a “major participant” in a crime, the court may consider:
- What role did the defendant have in planning the criminal enterprise that led to one or more deaths?
- What role did the defendant have in supplying or using lethal weapons?
- What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants?
- Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?
- What did the defendant do after the lethal force was used?
For example, a driver of a getaway car may be eligible to apply for resentencing. See Enmund v. Florida (1982) 458 US 782. See also People v. Banks (2015) 61 Cal 4th 788. See also People v. Perez (2016) 243 Cal.App.4th 863, 870.
Reckless Indifference to Human Life
In determining whether a person acted with “reckless indifference to human life,” the court may consider:
- Knowledge of weapons, and use and number of weapons;
- Physical presence at the crime and opportunities to restrain the crime and/or aid the victim;
- Duration of the felony;
- The defendant’s knowledge of a cohort’s likelihood of killing; and
- The defendant’s efforts to minimize the risks of the violence during the felony.
For example, participating in a robbery where the defendant believed that there were no bullets in the gun, among other things, is likely not considered “reckless indifference to human life.” See People v. Clark (2016) 63 Cal 4th 522.
While the California Attorney General has supported SB 1437 from the start, district attorney’s offices around the state deal with SB 1437 differently. Some counties accept that the law is constitutional and only challenge whether it applies specifically to certain defendants based on the unique facts of those cases. Several counties (such as Los Angeles, Orange, and Santa Clara) have challenged the constitutionality of SB 1437 under many different theories:
- SB 1437 improperly amends Proposition 7, the 1978 death penalty initiative.
- SB 1437 improperly amends Proposition 115, a 1990 initiative which amended felony murder.
- SB 1437 deprives crime victims of rights given by “Marsy’s Law” — Proposition 9, a 2008 initiative.
- SB 1437 violates the “separation of powers” concept (that different branches of government should not interfere with each other) by taking away power from the executive branch to reopen and overturn people’s sentences.
- SB 1437 violates the Eighth Amendment’s rule requiring narrow categories of murder which are eligible for the death penalty.
The good news is that SB 1437 has been expressly deemed constitutional under most of the challenges brought so far, though the Eighth Amendment challenge is arguably still unresolved.
In People v. Superior Court (2019) 42 Cal App 5th 270, the California Court of Appeals decided that SB 1437 does not improperly amend prior propositions. In People v. Lamoureux (2019) 42 Cal App 5th 241, the same court decided that SB 1437 does not violate the separation of powers or deprive crime victims of rights under “Marsy’s Law.” The California Supreme Court denied review of both cases, so these opinions are now final and binding law. Those trial courts that have addressed the prosecution’s Eighth Amendment arguments have focused instead on whether SB 1437 improperly amended previous propositions.
- What Does SB 1437 Do?
- Who Can Be Resentenced Under SB 1437?
- Filing an SB 1437 Petition
Who Can Be Resentenced Under SB 1437?
The following people can be resentenced under SB 1437:
- Someone convicted of first degree murder.
- Someone convicted of second degree murder.
- Someone that accepted a plea offer, who could have been convicted of first-degree or second-degree murder, had they proceeded to trial, or who could not be convicted of first or second-degree murder under the new law.
If you could have been charged with murder, using the current legal definition of murder, then you are not eligible to be resentenced.
How Does SB 775 Expand Who Is Eligible?
SB 775 utilizes the same resentencing guidelines as SB 1437; however, it expands who is eligible. The following people are also eligible for resentencing under SB 775:
- Someone who was convicted of manslaughter under the theory of felony murder or murder under the natural and probable consequences doctrine.
- Someone convicted of attempted murder under any theory in which malice is imputed solely based on participation in the crime.
People who are charged with these crimes, but not yet convicted, may also be eligible for lower sentencing options.
Both. A “principal” is one who personally does the act that results in the victim’s death. “Aiders and Abettors” are individuals who either help or encourage the “principal” to do the act that results in the victim’s death. The abolition of the old felony murder doctrine means that helpers and encouragers can be resentenced. However, principals may also be resentenced where they did not act with express or implied malice (see discussion above) in engaging in the underlying and inherently dangerous felony that caused the victim’s death.
Arguably, yes. You can be convicted of murder if you do a “provocative act,” such as engaging in a gunfight, that causes someone else, who is not your accomplice, to kill someone. See generally 4 Witkin & Epstein, Cal Criminal Law (2017), Crimes Against the Person, §§ 207–08. Caselaw strongly suggests that “provocative act” murder is a form of natural and probable consequences liability, which has been abolished by SB 1437. People v. Gonzalez (2012) 54 Cal 4th 643, 655-56; CALCRIM 560-61. “Provocative act” murder is another concept that allows someone to be convicted of murder without acting with the required mental state, which is what SB 1437 seeks to prevent. This question is currently on appeal without any binding decisions either way.
If the jury or judge determined at trial that you were not a “major participant” or did not act with “reckless indifference to life,” you are entitled to a resentencing without the need for a hearing.
Unfortunately, no. The only way to raise an SB 1437 claim is to file a PC 1170.95 petition. In re Cobbs (2019) 42 Cal App 5th 1073.
- What Does SB 1437 Do?
- Who Can Be Resentenced Under SB 1437?
- Filing an SB 1437 Petition
Filing an SB 1437 Petition
The first step in this process in to file a petition with the court that originally sentenced you, declaring that you are eligible for resentencing.
You (or your attorney) must include the court case number and the year that you were convicted, as well as the supporting arguments and materials necessary. The petition must be served on the district attorney.
In your petition, it is necessary to establish that you are eligible for resentencing. To do this, you will need to include facts, proof, and legal arguments. You may even offer new evidence to support your petition. The government may oppose your petition.
If the court thinks that you are eligible to be resentenced, then the court will hold a hearing. At the hearing, the prosecutor must establish that you should not be resentenced. If the prosecutor fails to do this, the judge will order a resentencing. Alternatively, the prosecutor may agree that you are eligible for resentencing.
When you were originally sentenced, if the trial court determined that you were not a major participant in the felony, then you can now be resentenced under SB 1437.
Common Pitfalls and How to Avoid Them
The question of what records a court may consider and during which stages of PC 1170.95 review the court may consider these records is currently on appeal. The California Court of Appeals has held that a court may look beyond the petition’s conclusory statements that the defendant is entitled to relief to documents from the “record of conviction.” People v. Lewis (2020) 43 Cal App 5th 1128.
The statute does not expressly authorize the court to consider the “record of conviction” in determining whether you have satisfied the prima facie requirement to schedule a hearing and order the prosecution to respond since the “record of conviction” is to be considered during the merits hearing.
However, given the many summary denials pro per individuals have faced, it is essential to obtain and attach all beneficial documents from your “record of conviction” and minimize potentially harmful facts or holdings.
The Court of Appeals has permitted the trial courts to consider previous appellate opinions filed in a defendant’s case. People v. Lewis (2020) 43 Cal App 5th 1128. However, it is very important to argue that consideration of prior appellate opinions should be limited to their holdings on what findings jurors necessarily made.
Trial courts will be tempted to read statements of facts contained in prior appellate opinions as definitive and therefore make their own factual findings in reliance on those statements. However, it would be extremely dangerous to allow this without reference to the entire trial transcript or without allowing additional evidence at a hearing on the petition.
Finally, some trial courts have looked at even less reliable materials such as preliminary hearing transcripts and police reports, which are not intended to present a full development of the facts or reflect any defense evidence.
You should argue that the Chapman v. California (1967) 386 U.S. 18, standard applies, that the prosecution must prove that the prior jury actually relied on a legally valid theory or otherwise made all the findings necessary for conviction. This is the only theory that respects the defendant’s right to a jury determination of every fact necessary for conviction on a valid theory.
This is one of three competing views and is the most favorable to defendants. The statute requires the prosecutor to prove your ineligibility for resentencing “beyond a reasonable doubt.” This is a term of art that is susceptible to different interpretations.
Retired Judge J. Richard Couzens of the Placer County Superior Court authored a memorandum advocating for an intermediate interpretation that requires the prosecution to prove beyond a reasonable doubt that the defendant is guilty of first or second-degree murder under a valid theory.
The prosecution will likely argue for sufficiency review, which is least favorable to defendants, and merely assesses whether the evidence is sufficient that a reasonable trier of fact could find the defendant guilty under the revised homicide statutes.
There are no appellate cases yet establishing the standard for relief.
After resentencing, you will be given credit for time served.