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Murder -- SB 1437

This area of our site offers some general information about SB 1437 and links to resources, including Ret. Judge Richard Couzens' analysis of SB 1437 and a CACJ Flash article by Al Menaster, The Term "Prima Facie" In The Context Of SB 1437. Please visit our SB 1437 Issues and Samples page to view collected sample arguments as they become available.

On September 30, 2018, the Governor signed Senate Bill No. 1437, which amends Penal Code sections 188 and 189, and creates Penal Code section 1170.95. SB 1437 limits accomplice liability for felony murder and murder under the natural and probable consequences theory, and provides for a petition procedure through which qualifying defendants may seek to vacate their murder convictions and obtain resentencing. The amendments are effective January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c).)

Summary of Changes

Felony Murder

Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187.) Malice may be express or implied. (Pen. Code, § 188.)

Prior to SB 1437, the felony murder rule made a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state. (People v. Chun (2009) 45 Cal.4th 1172, 1182.) First degree felony murder was a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. (Id. at p. 1182; former Pen. Code, § 189.)

SB 1437 amended Penal Code section 188 to require that a principal in a crime act with malice in order to be convicted of murder, and provides that malice shall not be imputed to a person based solely on his or her participation in a crime. (Pen. Code, § 188, subd. (a)(3).) The only exception to this requirement is set forth in subdivision (e) of section 189 (i.e. the amended first degree felony murder rule). (Pen. Code, § 188, subd. (a)(3).)

Under amended section 189, subdivision (e), a defendant is now liable for first degree felony murder only if he or she (1) was the actual killer; (2) with intent to kill, aided or abetted the actual killer in the commission of the murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in Penal Code section 190.2, subdivision (d). (Pen. Code, § 189, subd. (e).) However, subdivision (e) does not apply where the defendant knew or reasonably should have known the victim was a peace officer engaged in the performance of his or her duties. (Revised Pen. Code, § 189, subd. (f).)

Thus, as a result of the change to section 189, subdivision (e), an aider and abettor who was not the killer can only be liable for first degree felony murder if he or she had the intent to kill, or satisfied the Tison factors, i.e. was a major participant and acted with reckless indifference to human life (see Tison v. Arizona (1987) 481 U.S. 137; Pen. Code, § 190.2, subd. (d)), unless the peace officer exception outlined in subdivision (f) applies.

Natural and Probable Consequences

Under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime (target offense), but also for any other offense (nontarget offense) that was a natural and probable consequence of the crime aided and abetted. (People v. Chiu (2014) 59 Cal.4th 155, 158.)

Prior to SB 1437, under California Supreme Court precedent, an aider and abettor could not be held liable for first degree premeditated murder under the natural and probable consequences theory of liability, but could be held liable for second degree murder. (Id. at pp. 158-159, 161, 165-167.) Such liability applied where a defendant aided and abetted a target offense the natural and probable consequence of which was murder (meaning the murder was reasonably foreseeable). (Id. at pp. 161, 164-165.) In this situation, it was irrelevant whether the aider and abettor had the intent to kill; rather, culpability was imposed simply because a reasonable person in the defendant’s position could have foreseen the commission of the murder. (Id. at p. 164.)

By requiring malice for murder liability and prohibiting malice from being imputed to a person based solely on his or her participation in a crime (except in the newly-restricted first degree felony murder context) (see Pen. Code, § 188, subd. (a)(3)), SB 1437 effectively abrogated the natural and probable consequences theory of liability for murder.

Petition Process

SB 1437 created Penal Code section 1170.95, which provides for a petition procedure for a defendant convicted of felony murder, or of murder under a natural and probable consequences theory, to seek to vacate his or her murder conviction and obtain resentencing. Under this new statutory remedy, a defendant who could not be convicted of first or second degree murder under the new law may file a petition in the trial court to seek to vacate his or her first or second degree murder conviction. (Pen. Code, § 1170.95, subd. (a).) This applies to convictions resulting from jury trials, and where the defendant accepted a plea in lieu of a jury trial at which he or she could have been convicted of first or second degree murder. (Pen. Code, § 1170.95, subd. (a)(2).)

The petition should be filed in the trial court that sentenced the defendant and include a defendant's declaration stating that he or she is entitled to relief, the case number and year of conviction, and whether the defendant requests the appointment of counsel. (Pen. Code, § 1170.95, subd. (b)(1).) The trial court will then review the petition to determine whether the defendant made a prima facie showing for relief, and will appoint counsel if requested. (Pen. Code, § 1170.95, subd. (c).) The prosecution must file a response within 60 days and the defendant may file a reply within 30 days after the response is served (these deadlines may be extended for good cause). If a defendant makes a prima facie showing, the court will issue an order to show cause. (Pen. Code, § 1170.95, subd. (c).)

The court will hold a hearing to determine whether the murder conviction should be vacated and the defendant resentenced. (Pen. Code, § 1170.95, subd. (d)(1)-(2).) The prosecution will have the burden of proof at the hearing (beyond a reasonable doubt) to prove the defendant is ineligible for resentencing, and both parties may present new evidence, or rely on the record of conviction. (Pen. Code, § 1170.95, subd. (d)(3).)

If the prosecution does not meet its burden, the conviction shall be vacated and the defendant will be resentenced on the remaining charges. (Pen. Code, § 1170.95, subd. (d)(1), (3).) In cases where the defendant is entitled to relief but the murder was charged generically and the target offense or underlying felony was not charged, the defendant’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes. (Pen. Code, § 1170.95, subd. (e).)

The parties also have the option of waiving the resentencing hearing and stipulating that the defendant is entitled to have his or her murder conviction vacated. (Pen. Code, § 1170.95, subd. (d)(2).) Notably, if there was a prior finding by a court or jury that the defendant did not act with reckless indifference to human life or was not a major participant in the felony, the defendant is entitled to have his or her murder conviction vacated. (Ibid.)

Section 1170.95, subdivision (f) states, “This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.” (Pen. Code, § 1170.95, subd. (f).)

The full text of SB 1437 is available here (external link).

Other Resources

 

Legislative Materials--SB 1437 Bill Analysis (external link)

Accomplice Liability for Murder (SB 1437) (PDF)

By Ret. Judge Richard Couzens

CACJ Flash: The Term "Prima Facie" In The Context Of SB 1437(PDF)

By Al Menaster, Deputy Public Defender in Los Angeles County

This CACJ Flash is shared with permission from Mr. Menaster and CACJ.

FDAP's SB 1437 Memo

Brad O’Connell, Assistant Director at FDAP, prepared a thorough initial analysis of SB 1437 in October 2018. FDAP requested that their SB 1437 analysis not be distributed outside the criminal defense community, but they have given CCAP permission to share their memo with our panel attorneys. If you would like access to this memo, email resources@capcentral.org.

Prison Law Office Analysis of SB 1437 (external link to PDF)

 

 

 

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