Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.

This bill would require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This bill would provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.

This bill would require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This bill would provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.

This bill would prohibit malice from being imputed to a person based solely on his or her participation in a crime. The bill would prohibit a participant in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act. require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life. life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This bill would provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, 2nd degree felony murder, murder or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. The bill would provide that the court cannot, through this resentencing process, remove a strike from the petitioners record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.

This bill would prohibit malice from being imputed to a person based solely on his or her participation in a crime. The bill would prohibit a participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant or conspirator in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person personally committed the homicidal act, the person acted with premeditated intent to aid and abet an act wherein a death would occur, was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.

This bill would include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.

This bill would provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, 2nd degree felony murder, or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. The bill would provide that the court cannot, through this resentencing process, remove a strike from the petitioners record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.

This bill would prohibit malice from being imputed to a person based solely on his or her participation in a crime. The bill would prohibit a participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant or conspirator in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person personally committed the homicidal act, the person acted with premeditated intent to aid and abet an act wherein a death would occur, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.

This bill would include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.

This bill would provide a means of resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, 2nd degree felony murder, or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. The bill would provide that the court cannot, through this resentencing process, remove a strike from the petitioners record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

 UNFINISHED BUSINESS  

Bill No: SB 1437

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 4/24/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SENATE FLOOR: 26-11, 5/30/18

AYES: Allen, Anderson, Atkins, Beall, Cannella, De León, Dodd, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Moorlach, Pan, Roth, Skinner, Stern, Wieckowski, Wiener

NOES: Bates, Berryhill, Fuller, Gaines, Morrell, Newman, Nguyen, Nielsen, Stone, Vidak, Wilk

NO VOTE RECORDED: Bradford, Portantino

ASSEMBLY FLOOR: 42-36, 8/29/18 - See last page for vote

SUBJECT:

SOURCE: Anti-Recidivism Coalition

California Coalition for Women Prisoners

Californians for Safety and Justice

CARES for Youth

Felony Murder Elimination Project

Initiate Justice

Pacific Juvenile Defender Center

Restore Justice

University of San Francisco School of Law Criminal and Juvenile Justice Clinic and Racial Justice Clinic

USC Gould School of Law Post-Conviction Justice Project

Youth Justice Coalition

DIGEST:

This bill limits liability for individuals based on a theory of first or second degree felony murder. This bill allows individuals previously sentenced on a theory of felony murder to petition for resentencing if they meet specified qualifications.

Assembly Amendments

(1) specify that the provisions of the bill do not apply when the decedent is a peace officer, as specified; (2) clarify the resentencing provision s to make clear that petitioner has the burden to make a prima facie case that he or she is entitled to relief; (3) specify that if the statute of limitations on the underlying crime has run, that shall not apply in a resentencing under the provisions of the bill; (4) permit judges to impose a term of parole supervision upon completion of the term imposed under any resentencing; and (5) clarify that the provisions of the bill apply to accomplice liability under the first degree felony murder rule and the natural and probable consequences doctrine.

ANALYSIS:

Existing law:

1. Provides that all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
2. Provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more special circumstances is found to be true.
3. States that special circumstances include that the murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death.
4. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony listed above, which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole.
5. Provides that one who aids and abets another in the commission of a crime is a principal and is just as culpable as the principal offender.
6. States that every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.
7. Provides that, except as otherwise provided, every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
8. States the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or special circumstances has been found be true.
9. Provides that special circumstances include a murder that was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit robbery, kidnapping, rape, sodomy, lewd or lascivious act upon the person of a child under the age of 14 years, oral copulation, burglary, arson, train wrecking, mayhem, rape, or carjacking.
10. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids or abets in the commission of a specified felony which results in the death of a person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance involving commission of specified felonies has been found to be true.

This bill:

1. Specifies that in order to be convicted of murder, a participant in a crime must have the mental state described as malice, unless certain criteria are met.
2. States that malice shall not be imputed to a person based solely on his or her participation in a crime.
3. States that a participant in certain specified felonies is liable for first degree murder only if one of the following is proven:
   1. The person was the actual killer;
   2. The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; and,
   3. The person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified.
4. Allows a defendant to be convicted of first degree murder if the victim is a peace officer who was killed in the course of duty, where the defendant was a participant in certain specified felonies and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of duty, regardless of the defendant's state of mind
5. Allows a person convicted of felony murder or murder under a natural and probable consequences theory to file a petition with the court to have that the murder conviction vacated and be resentenced on any remaining counts when all of the following conditions apply:
   1. A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine;
   2. The person was convicted of first or second degree murder following a trial or accepted a plea bargain in lieu of a trial at which the person could be convicted for first of second degree murder; and
   3. The person could not be convicted of first or second degree murder under the provisions of this bill.
6. Requires the petition to be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, and on the attorney who represented the petitioner in the trial court.
7. Requires the petition to include following:
   1. A declaration by the petitioner that he or she is eligible for relief;
   2. The superior court case number and year of the petitioner's conviction; and
   3. Whether the petitioner requests the appointment of counsel.
8. Specifies that if any of the required information is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition.
9. Requires the court to review the petition and determine if the petitioner has made a sufficient showing that the petitioner potentially qualifies for resentencing.
10. States that the prosecutor shall file and serve a response within 60 days of the service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor's response is served.
11. Specifies that if the petitioner has made the required showing that the petitioner potentially qualifies for resentencing, the judge will issue an order to show good cause.
12. States that with 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts.
13. Allows the parties to waive a resentencing hearing and agree that the petitioner is eligible to have his or her murder conviction vacated and for resentencing.
14. States that at the hearing the burden of proof shall be on the prosecution to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing.
15. Provides that if the prosecutor fails to meet their burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
16. States that if the petitioner is entitled to relief pursuant to the provisions of this bill, and the offense underlying the felony murder conviction was not charged, the conviction shall be redesignated as the underlying offense for resentencing.
17. Allows the prosecutor and the petitioner to rely on the record of conviction or offer new or additional evidence as proof.
18. Requires a person resentenced pursuant to the provisions of this bill to receive credit for time served.
19. Allows the court to order person granted relief to be subject to parole supervision for up to three years following the completion of the sentence.
20. Makes findings and declarations.

Background

“The Legislature has said the effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first-degree murder for any homicide committed in the course thereof.” (People v. Cavitt (2004) 33 Cal. 4^th 187, 197.)

The deterrent effect of the felony-murder doctrine has been debated for decades. Countless legal scholars and law review articles have addressed the issue. Most recent studies have concluded that the felony murder rule does not have a deterrent effect on the commission of dangerous felonies or deaths during the commission of a felony. Proponents have argued that the felony-murder rule encourages criminals to reduce the number of felonies they commit and take greater care to avoid causing death while committing a felony. Opponents argue that criminals are unaware that the felony-murder rule even exists, and that it is impossible to deter criminals from committing unintentional and unforeseeable acts.

A 2002 study of FBI crime date found that nearly 20 percent of all murders annually between the years of 1970-1998 were felony murders. The results of the study suggested that the felony-murder rule has a relatively small effect on criminal behavior, and it does not substantially affect either the overall felony or felony-murder rate. Secondly, the study found that the effects varied by type of felony. While difficult to determine, the rule may have had a positive effect on reducing deaths during theft related offenses, it may have actually increased the rates of death in robbery-homicides. The rule was found to have no effect on rape deaths.

The United States adopted the felony murder rule as a form of English Common Law. English Common Law is the common legal system and concepts that has been adopted by courts throughout England, the United Kingdom, and their colonies worldwide.

1. Abolished in England and Wales via the Homicide Act of 1957.
2. Abolished in Northern Ireland via the Criminal Justice Act of Northern Ireland in 1966.
3. Held unconstitutional in Canada as breaching the principles of fundamental justice. (R v Vaillancourt (1987) 2 SCR 636.)
4. Abolished in Australia and replaced with a modified version known as “constructive murder” which requires that the offender commit an offense with a base penalty of 25 years to life in prison and that the death occurred in an attempt, during, or immediately after the base offense. Abolished and modified in the Crimes Act of 1958.
5. There was never a felony murder rule in Scotland.

In the United States there are still 46 states that have some form of a felony murder rule. Hawaii, Kentucky, Michigan, and Ohio have completely abolished the felony murder rule. In 24 of those states, including California, the punishment can be death. The felony murder rule has been removed from the American Law Institute’s Model Penal Code.

This bill does not eliminate the felony murder rule. The purpose of this bill is to merely revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Unknown one-time General Fund (GF) costs, likely in the millions of dollars or more, for courts to hold resentencing hearings.
2. Unknown one-time GF costs, potentially in the hundreds of thousands to millions of dollars, for the California Department of Corrections and Rehabilitation (CDCR) to transport inmates to resentencing hearings.
3. Ongoing administrative GF costs of about $200,000 for CDCR to review and update records.
4. Minor one-time costs for CDCR to train staff on the changes to the law.
5. GF costs of $42,000 in 2018-19 and $84,000 in 2019-20 for the Department of Justice to handle an increase in the number of appeals related to resentencing requests and to update records to reflect resentencing changes.
6. Unknown costs for CDCR to supervise resentenced inmates on parole for up to three years.
7. Unknown significant ongoing savings, likely amounting to hundreds of thousands of dollars to millions of dollars annually, for CDCR to incarcerate inmates for shorter sentences.

SUPPORT: (Verified 8/28/18)

Anti-Recidivism Coalition (co-source)

California Coalition for Women Prisoners (co-source)

Californians for Safety and Justice (co-source)

CARES for Youth (co-source)

Felony Murder Elimination Project (co-source)

Initiate Justice (co-source)

Pacific Juvenile Defender Center (co-source)

Restore Justice (co-source)

University of San Francisco School of Law Criminal and Juvenile Justice Clinic and Racial Justice Clinic (co-source)

USC Gould School of Law Post-Conviction Justice Project (co-source)

Youth Justice Coalition (co-source)

American Civil Liberties Union of California

American Friends Service Committee

Beit T’Shuvah

Bend the Arc Jewish Action

California Attorneys for Criminal Justice

California Public Defenders Association

Californians United for a Responsible Budget

Catholic Worker Hospitality House

Center for Juvenile Law and Policy

Center on Juvenile and Criminal Justice

Community Housing Partnership

Community Works West

Courage Campaign

East Side Studios

Ella Baker Center for Human Rights

Fair Chance Project

Felony Murder Elimination Project

Friends Committee on Legislation of California

Full Moon Pickles and Catering

Human Rights Watch

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Los Angeles Chapter of the National Action Network

New Jersey Parents Caucus

Pillars of the Community

Place4Grace

Prison Activist Resource Center

Prisoner Advocacy Network

Prisoner Hunger Strike Solidarity

Riverside Temple Beth El

Rubicon Programs
San Francisco Public Defender

Showing Up for Racial Injustice – Long Beach

Sister Inmate

Survived & Punished

The Advocacy Fund

The Modesto/Stanislaus NAACP

Time for Change Foundation

United Auto Workers Local 2865

University of San Francisco School of Law’s Criminal and Juvenile Justice Clinic and Racial Justice Clinic

WE ARE HERE TO HELP

Welcome Home LA Reentry

White People 4 Black Lives

Women’s Center for Creative Work

Women’s Council of the California Chapter of the National Association of Social Workers

Young Women’s Freedom Center

325 individuals

OPPOSITION: (Verified 8/28/18)

Association of Deputy District Attorneys

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotic Officers Association

California Peace Officers’ Association

California Police Chiefs Association

California State Sheriff’s Association

Crime Victims United

Los Angeles County District Attorney’s Office

Los Angeles Police Protective League

Los Angeles Professional Peace Officers Association

Peace Officers Research Association of California

Riverside Sheriffs’ Association

ASSEMBLY FLOOR: 42-36, 8/29/18

AYES: Aguiar-Curry, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Chu, Daly, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Rivas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Arambula, Baker, Bigelow, Brough, Caballero, Cervantes, Chávez, Chen, Choi, Cooley, Cooper, Cunningham, Dahle, Flora, Fong, Frazier, Gallagher, Grayson, Harper, Irwin, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Muratsuchi, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Gray, Rodriguez

Prepared by:

8/30/18 9:13:11

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1437

Author:(Skinner and Anderson)

As Amended Ver:August 20, 2018

Majority vote

SENATE VOTE: 26-11

SUMMARY: Limits liability for individuals based on a theory of 1st or 2nd degree felony murder. Allows individuals previously sentenced on a theory of felony murder to petition for resentencing if they meet specified qualifications. Specifically, this bill:

1. Specifies that in order to be convicted of murder, a participant in a crime must have the mental state described as malice, unless certain criteria are met.
2. States that malice shall not be imputed to a person based solely on his or her participation in a crime.
3. States that a participant in certain specified felonies is liable for first degree murder only if one of the following is proven:
   1. The person was the actual killer;
   2. The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; and,
   3. The person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified.
4. Allows a defendant to be convicted of first degree murder if the victim is a peace officer who was killed in the course of duty, where the defendant was a participant in certain specified felonies and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of duty, regardless of the defendant's state of mind
5. Allows a person convicted of felony murder or murder under a natural and probable consequences theory to file a petition with the court to have that the murder conviction vacated and be resentenced on any remaining counts when all of the following conditions apply:
   1. A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine;
   2. The person was convicted of 1st or 2nd degree murder following a trial or accepted a plea bargain in lieu of a trial at which the person could be convicted for first of second degree murder; and
   3. The person could not be convicted of 1st or 2nd degree murder under the provisions of this bill.
6. Requires the petition to be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, and on the attorney who represented the petitioner in the trial court.
7. Requires the petition to include following:
   1. A declaration by the petitioner that he or she is eligible for relief;
   2. The superior court case number and year of the petitioner's conviction; and
   3. Whether the petitioner requests the appointment of counsel.
8. Specifies that if any of the required information is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition.
9. Requires the court to review the petition and determine if the petitioner has made a sufficient showing that the petitioner potentially qualifies for resentencing.
10. States that the prosecutor shall file and serve a response within 60 days of the service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor's response is served.
11. Specifies that if the petitioner has made the required showing that the petitioner potentially qualifies for resentencing, the judge will issue an order to show good cause.
12. States that with 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts.
13. Allows the parties to waive a resentencing hearing and agree that the petitioner is eligible to have his or her murder conviction vacated and for resentencing.
14. States that at the hearing the burden of proof shall be on the prosecution to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing.
15. Provides that if the prosecutor fails to meet their burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
16. States that if the petitioner is entitled to relief pursuant to the provisions of this bill, and the offense underlying the felony murder conviction was not charged, the conviction shall be redesignated as the underlying offense for resentencing.
17. Allows the prosecutor and the petitioner to rely on the record of conviction or offer new or additional evidence as proof.
18. Requires a person resentenced pursuant to the provisions of this bill to receive credit for time served.
19. Allows the court to order person granted relief to be subject to parole supervision for up to three years following the completion of the sentence.
20. Makes findings and declarations.

EXISTING LAW:

1. Provides that all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
2. Provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more special circumstances is found to be true.
3. States that special circumstances include that the murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death.
4. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony listed above, which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole.
5. Provides that one who aids and abets another in the commission of a crime is a principal and is just as culpable as the principal offender.
6. States that every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.
7. Except as otherwise provided, every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
8. States the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or special circumstances has been found be true.
9. Special circumstances include a murder that was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit robbery, kidnapping , rape, sodomy, lewd or lascivious act upon the person of a child under the age of 14 years, oral copulation, burglary, arson, train wrecking, mayhem, rape, or carjacking.
10. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids or abets in the commission of a specified felony which results in the death of a person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance involving commission of specified felonies has been found to be true.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown one-time General Fund (GF) costs, likely in the millions of dollars or more, for courts to hold resentencing hearings.
2. Unknown one-time GF costs, potentially in the hundreds of thousands to millions of dollars, for the California Department of Corrections and Rehabilitation (CDCR) to transport inmates to resentencing hearings.
3. Ongoing administrative GF costs of about $200,000 for CDCR to review and update records.
4. Minor one-time costs for CDCR to train staff on the changes to the law.
5. GF costs of $42,000 in 2018-19 and $84,000 in 2019-20 for the Department of Justice to handle an increase in the number of appeals related to resentencing requests and to update records to reflect resentencing changes.
6. Unknown costs for CDCR to supervise resentenced inmates on parole for up to three years.
7. Unknown significant ongoing savings, likely amounting to hundreds of thousands of dollars to millions of dollars annually, for CDCR to incarcerate inmates for shorter sentences.

COMMENTS: According to the author, "SB 1437 seeks to restore proportional responsibility in the application of California's murder statute reserving the harshest punishments for those who intentionally planned or actually committed the killing.

"In criminal justice, a person's intent is a critical element to determine punishment for a criminal offense with one glaring exception. Under current California law, prosecutors are able to replace the intent to commit murder with the intent to commit a felony if the felony results in a death. Thus a person can be found guilty of murder if a death occurs while a felony is committed. It does not matter whether the death was intended or whether a person had knowledge that the death had even occurred.

"The result is that California's felony murder statute has been applied even when a death was accidental, unintentional or unforeseen but occurred during the course of certain crimes.

"This application of the statute has caused disproportionately long sentences for people who did not commit murder, and who in some cases had, at best, very peripheral involvement in the crime that resulted in a death.

"According to a 2018 survey by the Anti-Recidivism Coalition and Restore Justice, 72% of women currently incarcerated in California with a life sentence did not commit the homicide. Additionally, the average age of those charged and sentenced under this interpretation of the murder statute is 20 years old; indicating that youth who were peripheral to a homicide are often held as responsible as the actual killer.

"The California Supreme Court has commented on the necessity to fix this interpretation of California's murder statute. In People v. Dillon, the state Supreme Court called the use of the felony murder rule to charge those who did not commit a murder, or had no knowledge or involvement in the planning of the murder, 'barbaric.'

"States such as Arkansas, Massachusetts, Kentucky, Hawaii, Michigan, and Ohio have narrowed the scope of what is known as the felony murder rule and limited the application of their murder statute. Ohio, for example, now requires that a killing that occurs during a felony must be an intentional killing in order to receive a first-degree murder conviction.

"SB 1437 clarifies that a person may only be convicted of murder if the individual willingly participated in an act that results in a homicide or that was clearly intended to result in a homicide."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004162

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1437

Author:(Skinner) – As Amended Ver:May 25, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill limits liability for individuals based on a theory of 1^st or 2^nd degree felony murder if the person did not actually commit the murder and meets other criteria. This bill also allows individuals previously sentenced on a theory of felony murder to petition for resentencing if they meet specified qualifications.

FISCAL EFFECT:

1. Unknown one-time GF costs, likely in the millions of dollars or more, for courts to hold resentencing hearings.
2. Unknown one-time GF costs, potentially in the hundreds of thousands to millions of dollars, for the California Department of Corrections and Rehabilitation (CDCR) to transport inmates to resentencing hearings.
3. Ongoing administrative GF costs of about $200,000 for CDCR to review and update records.
4. Minor one-time costs for CDCR to train staff on the changes to the law.
5. GF costs of $42,000 in 2018-19 and $84,000 in 2019-20 for the Department of Justice to handle an increase in the number of appeals related to resentencing requests and to update records to reflect resentencing changes.

COMMENTS:

1. Background. The felony-murder rule is a legal doctrine that excludes considerations of context and intention in a murder. When someone is killed during the commission of a felony, regardless of how or by whom they are killed, any person engaged in the felony is charged with murder. The United States is the only country in the world to use the felony-murder rule. Hawaii and Kentucky have banned the felony-murder rule by statute and in Michigan has banned it through a decision by the Michigan Supreme Court. In Michigan, the Supreme Court noted when it abolished the felony-murder rule:

Whatever reasons can be gleaned from the dubious origin of the felony-murder rule to explain its existence, those reasons no longer exist today. Indeed, most states, including our own, have recognized the harshness and inequity of the rule as is evidenced by the numerous restrictions placed on it. The felony-murder doctrine is unnecessary and in many cases, unjust in that it violates the basic premise of individual moral culpability upon which our criminal law is based.”

Under the current felony-murder rule in California, criminal liability for a homicide is very broad. A defendant may be convicted of first-degree murder under the felony-murder rule if the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a felony, even if the defendant did not commit a murder, and even if the killing was unintentional, accidental, or negligent. First degree murder carries a sentence of 25 years to life. A defendant may be convicted of second-degree felony murder if a killing happened during the commission, attempted commission, or flight following the commission or attempted commission of an “inherently dangerous felony” even if the defendant did not commit a murder, and even if the killing was unintentional, accidental, or negligent. Second degree murder carries a sentence of 15 years to life.

1. Purpose. This bill would limit the liability for individuals under a theory of 1^st or 2^nd degree felony murder. Under the provisions of this bill, an individual would not be liable for 2^nd murder under a theory of felony murder unless the individual personally committed the act that resulted in death. Under the provisions of this bill an individual would not be liable for 1^st degree felony murder unless (a) the person was the actual killer; (b) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or (c) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified. According to the author:

SB 1437 seeks to restore proportional responsibility in the application of California’s murder statute reserving the harshest punishments for those who intentionally planned or actually committed the killing.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 26, 2018

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1437

Author:(Skinner) – As Amended Ver:May 25, 2018

SUMMARY: Limits liability for individuals based on a theory of 1^st or 2^nd degree felony murder. Allows individuals previously sentenced on a theory of felony murder to petition for resentencing if they meet specified qualifications. Specifically, this bill:

1. States that the mental state required for murder (malice) shall not be imputed to a person based solely on his or her participation in a crime.
   
2. Specifies that a participant in the commission or attempted commission of a felony inherently dangerous to human life may be imputed to have acted with implied malice only if he or she personally committed the homicidal act.
   
3. States that a participant in certain specified felonies is liable for first degree murder only if one of the following is proven:
   
   1. The person was the actual killer;
      
   2.  The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; and,
      
   3. The person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified.
4. Makes a crime that involves any felony that is inherently dangerous to human life in which a person was killed, a serious felony (strike).
   
5. States that a defendant may submit a request to have his or her conviction vacated and petition for resentencing when all of the following conditions apply:
   
   1. A complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine;
      
   2. The defendant was sentenced to first degree or second degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder; and,
      
   3. The defendant could not be convicted of first degree or second degree murder because of changes made by the provisions of this bill.
      
6. Requires that the petition include a declaration by the petitioner that he or she believes that he or she is eligible for relief under the provisions of this bill.
   
7. Specifies that upon receipt of the petition, the court shall provide notice to the attorney who represented the petitioner in the superior court, or to the public defender if the attorney of record is no longer available, and to the district attorney in the county in which the petitioner was prosecuted.
   
8. States that if the court finds that there is sufficient evidence that the petitioner falls within the provisions of this section, the court shall hold a resentencing hearing to determine whether to recall the sentence and commitment previously ordered and to resentence the petitioner in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
   
9. Provides that the parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her sentence vacated and for resentencing.
   
10. States that if there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence.
    
11. Specifies that if the petitioner was charged with or convicted of first degree murder under a theory of felony murder, the petitioner shall have the initial burden of going forward with evidence that he or she was not the actual killer, did not act with the intent to kill, and did not act as a major participant with reckless disregard for human life in the commission of the felony.
    
12. Specifies that if the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.
    
13. States that if the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
    
14. The prosecutor may rely on the record of conviction to meet its burden, but the petitioner may offer new or additional evidence to meet the burden of going forward or in rebuttal of the prosecution’s evidence.
    
15. States that if the petitioner was charged with or convicted of second degree murder under a theory of felony murder or the natural and probable consequences doctrine, the petitioner shall have the initial burden of going forward with evidence that he or she did not personally commit the homicidal act.
    
16. Provides that if the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.
    
17. States that if the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
    
18. Clarifies that the resentencing procedure does not authorize a court to remove a strike from the petitioner’s record.

EXISTING LAW:

1. Provides that all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. (Pen. Code, § 189.)
   
2. Provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more special circumstances is found to be true.
   
3. States that special circumstances include that the murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death. (Penal Code §190.2, subd. (a)(17).)
   
4. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony listed above, which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole. (Penal Code §190.2, subd. (d).)
   
5. Provides that one who aids and abets another in the commission of a crime is a principal and is just as culpable as the principal offender. (Pen. Code, § 31.)
   
6. States that every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. (Pen. Code, § 190, subd. (a).)
   
7. Except as otherwise provided, every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life. (Pen. Code, § 190, subd. (a).)
   
8. States the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or special circumstances has been found be true. (Pen. Code, § 190.2.)
   
9. Special circumstances include a murder that was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit robbery, kidnapping , rape, sodomy, lewd or lascivious act upon the person of a child under the age of 14 years, oral copulation, burglary, arson, train wrecking, mayhem, rape, or carjacking. (Pen. Code, § 190.2, subd(a)(17).)
   
10. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids or abets in the commission of a specified felony which results in the death of a person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance involving commission of specified felonies has been found to be true. (Pen. Code, § 190.2.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, "SB 1437 seeks to restore proportional responsibility in the application of California’s murder statute reserving the harshest punishments for those who intentionally planned or actually committed the killing.

“In criminal justice, a person’s intent is a critical element to determine punishment for a criminal offense with one glaring exception. Under current California law, prosecutors are able to replace the intent to commit murder with the intent to commit a felony if the felony results in a death. Thus a person can be found guilty of murder if a death occurs while a felony is committed. It does not matter whether the death was intended or whether a person had knowledge that the death had even occurred.

“The result is that California’s felony murder statute has been applied even when a death was accidental, unintentional or unforeseen but occurred during the course of certain crimes.

“This application of the statute has caused disproportionately long sentences for people who did not commit murder, and who in some cases had, at best, very peripheral involvement in the crime that resulted in a death.

“According to a 2018 survey by the Anti-Recidivism Coalition and Restore Justice, 72% of women currently incarcerated in California with a life sentence did not commit the homicide. Additionally, the average age of those charged and sentenced under this interpretation of the murder statute is 20 years old; indicating that youth who were peripheral to a homicide are often held as responsible as the actual killer.

“The California Supreme Court has commented on the necessity to fix this interpretation of California’s murder statute. In People v. Dillon, the state Supreme Court called the use of the felony murder rule to charge those who did not commit a murder, or had no knowledge or involvement in the planning of the murder, ‘barbaric’.

“States such as Arkansas, Massachusetts, Kentucky, Hawaii, Michigan, and Ohio have narrowed the scope of what is known as the felony murder rule and limited the application of their murder statute. Ohio, for example, now requires that a killing that occurs during a felony must be an intentional killing in order to receive a first-degree murder conviction.

“SB 1437 clarifies that a person may only be convicted of murder if the individual willingly participated in an act that results in a homicide or that was clearly intended to result in a homicide.”

1. Felony Murder Rule: The felony murder rule is a legal doctrine that excludes considerations of context and intention in a murder-crime: when someone is killed during the commission of a felony, regardless of how or by whom they are killed, the person engaged in the felony is charged with murder. The United States is the only country in the world to use the felony murder rule. Hawaii and Kentucky have banned the felony murder rule by statute and in Michigan through the Supreme Court. In Michigan, the Supreme Court noted when it abolished the felony murder rule: “Whatever reasons can be gleaned from the dubious origin of the felony-murder rule to explain its existence, those reasons no longer exist today. Indeed, most states, including our own, have recognized the harshness and inequity of the rule as is evidenced by the numerous restrictions placed on it. The felony-murder doctrine is unnecessary and in many cases, unjust in that it violates the basic premise of individual moral culpability upon which our criminal law is based.”
   
   Under the current felony murder rule in California, criminal liability for a homicide is very broad. A defendant may be convicted of first-degree murder under the felony-murder rule if the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily-enumerated felony (Penal Code § 189), even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent. First degree murder carries a sentence of 25 years to life. A first degree murder accompanied by one or more special circumstances is punishable by death or life without parole. Special circumstances include the participation in one of the same statutorily-enumerated felonies which qualified the crime as first degree murder. If the accomplice was not the actual killer, the accomplice is still punishable with death or life without parole if the accomplice was a major participant in the crime and acted with reckless indifference to human life.
   
   A defendant may be convicted of second-degree felony murder if a killing happened during the commission, attempted commission, or flight following the commission or attempted commission of an “inherently dangerous felony” even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent. Second degree murder carries a sentence of 15 years to life.
   
   This bill would limit the liability for individuals under a theory of 1^st or 2^nd degree felony murder. Under the provisions of this bill, an individual would not be liable for 2^nd murder under a theory of felony murder unless the individual personally committed the act that resulted in death. Under the provisions of this bill an individual, would not be liable for 1^st degree felony murder unless; (1) the person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified.
   
   This bill does not make any changes to the sentencing for an individual found liable for 1^st degree felony murder. Under this bill, those individuals would still potentially be eligible for a death sentence or life without parole, if certain criteria were met.
   
   Under the provisions of this bill, an individual would remain criminally liable for their participation in any other crime, even if they were not liable for felony murder.
   
   This bill contains provisions that would allow individuals that are currently serving sentences based on a theory of felony murder to petition the court for resentencing.
   
2. Concept of Felony Murder/Felony Murder and Culpability: Felony murder relies on the concept that an individual who participates in a felony should be responsible for a death that occurs during the course of that felony regardless of how that death occurred. But for the commission of the crime, the death would not have occurred. Based on that concept, the person that participated in the felony is responsible for the death of another, even if the death is unintentional, accidental, or committed by another person.
   
   The broadest version of the doctrine of felony murder makes even an accidental killing-one caused by non-negligent conduct a murder. If a death is accidental, then by definition the state can prove no mental fault (not even negligence, the least culpable recognized state of mind) with regard to the element of causing the death of another human being. (https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1696&context=wlulr) Under California criminal law, the general rule to be found guilty of murder is that the person must intend to kill or act with conscious disregard for human life. The felony murder rule has been broadly criticized because it does not require a defendant to have that state of mind which is generally required to establish culpability for a murder.
   
3. Felony-Murder Rule Does Not Necessarily Act as a Deterrent: In California conviction for murder, requires proof of intent to kill or action taken with conscious disregard for human life. Under the felony murder rule, a person can be convicted of murder without proof of any intent to kill or conscious disregard of human life, if the death at issue occurred during the commission of a felony. Proponents of the rule argue that it encourages criminals to reduce the number of felonies they commit and to take greater care to avoid causing death while committing a felony. Opponents argue that criminals are unaware of the felony murder rule and, more importantly, that it is impossible to deter criminals from committing unintentional acts. Critics also argue that the felony murder rule distorts marginal deterrence incentives— once a felon has accidentally caused one death, there is less to deter him from intentionally killing other witnesses to the crime. (http://www.law.virginia.edu/pdf/malani/felonymurder021111rand.pdf)
   
   Anup Malani, published a paper in 2002, which examined data related to the felony-murder rule. Ms. Malani concluded that the felony murder rule does not provide an effective deterrent to criminal behavior. Ms. Malani compared the difference in average crime rates in states and years with and without the rule (defined as states that do and do not punish felony murder as first-degree murder, respectively) during the 1968-98 period. Ms. Malani found that the felony murder rule does not substantially improve crime rates. Based on her research, Ms. Malani suggested that if the primary rational for a state to retain the felony murder rate is to reduce crime, the state should reconsider the rule. (Id.)
   
4. Argument in Support: According to the Center on Criminal and Juvenile Justice, “California’s accomplice liability law can impose first degree murder charges on individuals who are accused of a felony—such as robbery or burglary—that resulted in a death. While a murder conviction typically requires proof of premeditation and intent, the accomplice liability law creates an exception to this standard and allows the state to impose the most severe penalties, including life in prison, for the commission of a lesser offense. This life sentence is imposed even if a person did not kill, aid in the killing, nor act with any intent to harm. While it is important to hold those who endanger public safety accountable, punishment should be proportional to an individual’s culpability. SB 1437 will make clear that a charge of first degree murder requires that someone had intent to kill, aided and abetted the killing, or acted with reckless indifference to human life.
   
   “This bill does not end criminal liability for accomplices in crime; those who participated in the underlying crime will still be charged for their participation in the crime. Those who actually caused the death will still be liable for murder. All participants will be held accountable and will be appropriately sentenced based on their level of participation in the homicide.
   
   “Existing accomplice laws disproportionately impact youth of color and women. The majority of those incarcerated as accomplices are under the age of 25 at the time of the crime. Moreover surveys indicate that approximately 70 percent of women charged with homicide were accomplices, not the actual perpetrators of the act that led to death. These women are often in coercive relationships with the perpetrators. Nevertheless, because of the acts of others, they are subjected to life sentences, and sometimes even a longer sentence than the actual perpetrator.
   
   “As California seeks to address severe, unconstitutional overcrowding in its state prisons, voters and lawmakers have enacted reforms, including AB 109, Prop 47, and Prop 57, that are reducing incarcerated populations, shortening overly-punitive sentences, and bringing more Californians home. However, the benefit of these recent reforms has accrued primarily to those with nonviolent convictions. To meaningfully reduce prison populations and repair the harm of decades of mass incarceration, the state must also provide relief to those with violent felony convictions. By addressing the characteristic unfairness of accomplice liability law, the California Legislature will demonstrate its commitment to bringing overdue reforms to violent felony sentencing and redirecting state resources away from costly investments in corrections.”
   
5. Argument in Opposition: According to the California District Attorneys Association, “There are a number of concerns raised in this bill:
   
   “First, the retroactive application of this bill applies to convictions that resulted from both jury and bench trials as well as convictions that resulted from negotiated plea bargains. Under the provisions of this measure, a resentencing hearing will necessarily require a full court record, including transcripts and exhibits, to determine the exact level of participation in the crime in order to determine whether a particular defendant is entitled to relief. In cases that resolved through a negotiated plea, no such record exists and virtually all participants in murders may qualify for relief to which they may not be entitled.
   
   “Additionally, this bill requires the prosecution to prove beyond a reasonable doubt that the petitioner falls into one of the categories that precludes resentencing. In cases that resolved through a negotiated plea, the absence of a full court record will necessarily prevent the people from establishing beyond a reasonable doubt whether a petitioner is excluded. The result will entitle virtually all petitioners who apply, even those who were major participants in the crime which resulted in death, to be entitled to a resentencing and the elimination of their well-deserved criminal liability.
   
   “Second, by placing the burden on the prosecution to prove beyond a reasonable doubt that petitioners do not qualify for resentencing, this bill will require the litigation of facts previously not litigated in the original case, particularly in cases that resolved through a plea. It is unclear from this bill whether the determination of those facts will be conducted by the resentencing judge or will necessitate a jury – which has significant procedural and constitutional implications as well as significant costs.
   
   “Moreover, this bill provides no exception to allow for the trial transcript to be used in a resentencing hearing. The effect of this would be to necessitate the calling of witnesses, other victims, and family members who may have been involved in the original case. The effects of this to crime victims and survivors would be devastating.
   
   “Finally, the requirements placed on a petitioner to seek a resentencing hearing merely require the submission of a request indicating that a petitioner was convicted of murder and that the prosecution theory could have included a theory of first or second degree felony murder. Charging documents, plea forms, jury verdict forms and other documents involved in the prosecution of murder cases do not specify the theory under which someone is charged or even convicted of murder. The only way to determine whether a felony murder theory was advanced in a particular case would be to examine the transcripts at trial. The effect of this provision of the bill would be to allow everyone convicted of murder – actual killers, those acting with premeditated intent, and major participants acting with reckless indifference to human life included – to successfully petition to have a resentencing hearing. Combined with the burden on the prosecution to prove beyond a reasonable doubt the petitioner’s ineligibility for a resentencing, this bill will effectively authorize the release of actual killers and those who played major roles in the killing of others during dangerous felonies.
   
   “We are committed to working to find a reasonable and measured approach to felony murder reform. Unfortunately this bill falls short and creates some potentially disastrous and costly problems that renders this bill unworkable.”

1. Related Legislation:
   
   1. AB 3104 (Cooper), would limit the sentence for specified first degree murder convictions where the person is not the actual killer, but participated in specified felonies, to 25 years to life. Would specify that a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, but who is an accomplice in a specified felony that results in the death of a person, is guilty of second degree murder, punishable by 15 years to life. AB 3104 is on the Assembly Inactive File.
      
   2. SB 971 (Nguyen), would additionally include among those special circumstances that the victim was intentionally killed because of his or her sexual orientation or gender, as defined. SB 971 failed passage in the Senate Public Safety Committee.
      
2. Prior Legislation:
   
   1. AB 2195 (Bonilla), of the 2015-2016 Legislative Session, would have require the district attorney of each county to collect data on the number of persons charged with and convicted of felony murder, disaggregated by race and gender, and, beginning July 1, 2017, to report that data to the Department of Justice. AB 2195 was held on the Assembly Appropriations Committee Suspense File.
      
   2. SB 878 (Hayden), of the 1999-2000 Legislative Session, would have required the court in a case involving felony murder with a defendant who did not physically or directly commit the murder, whether imposition of a sentence of first degree murder is proportionate to the offense committed and to the defendant’s culpability in committing that offense by considering specified criteria and to state its reasons on the record. SB 878 failed passage on the Senate Floor.

REGISTERED SUPPORT / OPPOSITION:

Support

Restore Justice (Co-sponsor)

Anti-Recidivism Coalition (Co-sponsor)

Californians for Safety and Justice (Co-sponsor)

California Coalition for Women Prisoners (Co-sponsor)

CARES for Youth (Co-sponsor)

Felony Murder Elimination Project (Co-sponsor)

Initiate Justice (Co-sponsor)

Pacific Juvenile Defender Center (Co-sponsor)

University of San Francisco School of Law Criminal and Juvenile Justice Clinic and Racial Justice Clinic (Co-sponsor)

USC Gould School of Law Post-Conviction Justice Project (Co-sponsor)

Youth Justice Coalition (Co-sponsor)
American Civil Liberties Union of California

The Advocacy Fund
American Friends Service Committee
Beit T’Shuvah

Bend the Arc Jewish Action
California Attorneys for Criminal Justice

Californians United for a Responsible Budget

California Public Defenders Association

Catholic Worker Hospitality House

Center for Juvenile Law and Policy

Center on Juvenile and Criminal Justice

Community Housing Partnership

Community Works West

Courage Campaign

East Side Studios

Ella Baker Center for Human Rights

Fair Chance Project

Friends Committee on Legislation of California
Human Rights Watch

Lawyers Committee for Civil Rights of the San Francisco Bay Area

Felony Murder Elimination Project

Full Moon Pickles and Catering

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Los Angeles Chapter of the National Action Network

The Modesto/Stanislaus NAACP

New Jersey Parents Caucus

Pillars of the Community

Place4Grace

Prison Activist Resource Center

Prisoner Advocacy Network

Prisoner Hunger Strike Solidarity

Riverside Temple Beth El

Rubicon Programs
San Francisco Public Defender

Showing Up for Racial Injustice – Long Beach

Sister Inmate

Survived & Punished

Time for Change Foundation

University of San Francisco School of Law’s Criminal and Juvenile Justice Clinic and Racial Justice Clinic

United Auto Workers Local 2865

WE ARE HERE TO HELP

Welcome Home LA Reentry
White People 4 Black Lives

Women’s Center for Creative Work

Women’s Council of the California Chapter of the National Association of Social Workers; Young Women’s Freedom Center

325 Private Individuals

Opposition

Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Peace Officers’ Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriff’s Association

Crime Victims United

Los Angeles County District Attorney’s Office
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Peace Officers Research Association of California
Riverside Sheriffs’ Association

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1437

Author: , et al.

Amended: 5/25/18

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 4/24/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: Author

DIGEST:

This bill revises the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

ANALYSIS:

Existing law:

1. Defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. (Pen. Code, § 187, subd. (a).)
2. Defines malice for this purpose as either express or implied and defines those terms. (Pen. Code, § 188.)
   1. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.
   2. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
3. Provides that when it is shown that the killing resulted from an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice. (Pen. Code, § 188.)
4. Defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies. (Pen. Code, § 189.)
5. Prescribes, as enacted by Proposition 7, approved by the voters at the November 7, 1978 statewide general election, a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. (Pen. Code, § 190.)
6. Defines second degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life. (Pen. Code, §§ 187 & 190.05.)
7. Defines a serious felony as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000. (Pen. Code, § 667.1.)
8. Requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law. (Pen. Code, §§ 667.5 & 1192.7.)

This bill:

1. Prohibits malice from being imputed to a person based solely on his or her participation in a crime.
2. Prohibits a participant in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.
3. Prohibits a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.
4. Includes in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.
5. Provides a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or second degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder, and the defendant could not be charged with murder after the enactment of this bill. The initial burden is on the petitioner to show that he or she was not the killer, did not act with the intent to kill, and did not act as a major participant with a reckless disregard for human life in the commission of the felony.
6. Provides that the court cannot, through this resentencing process, remove a strike from the petitioner’s record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

Background

The felony murder rule applies to murder in the first degree as well as murder in the second degree. The rule creates liability for murder for actors (and their accomplices) who kill another person during the commission of a felony. The death need not be in furtherance of the felony, in fact the death can be accidental.

The purpose of the rule is to deter those who commit felonies from killing by holding them strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental during the perpetration or attempted perpetration of the felony. (People v. Cavitt (2004) 33 Cal. 4^th 187, 197.)

First Degree Felony Murder

First degree felony murder rule applies when a death occurs during the commission of one of a list of enumerated felonies.  These felonies are as follows:  arson, robbery, any burglary, carjacking, train wrecking, kidnapping, mayhem, rape, torture, and a list of sexual crimes (including rape, sodomy, oral copulation, forcible penetration, or lewd acts with a minor). (Pen. Code, § 189.)

If someone is standing watch while his friend breaks into a locked vehicle and is discovered by a security guard and they all flee on foot.  If the security guard falls to the ground in pursuit of the burglars and dies as a result of the fall, both co-defendants could be convicted of murder.   

Second Degree Felony Murder

Second degree murder occurs when a death occurs during the commission of a felony that has not been enumerated in code as constituting first degree felony murder, but that courts have defined as “inherently dangerous.”  (People v. Ford (1964) 60 Cal.2d 772.) The standard courts are supposed to use for inherently dangerous is that the felony cannot be committed without creating a substantial risk that someone could be killed. (People v. Burroughs (1984) 35 Cal. 3d 824, 833.) 

So therefore, a defendant who fires a weapon in the air to deter criminals from burglarizing their property can be convicted of second degree felony murder if the firing of the weapon kills a human being.  That defendant could be convicted of 15 years to life in state prison. 

Lack of Deterrent Effect on Criminal Behavior

“The Legislature has said the effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first-degree murder for any homicide committed in the course thereof.” (People v. Cavitt (2004) 33 Cal. 4^th 187, 197.)

The deterrent effect of the felony-murder doctrine has been debated for decades. Countless legal scholars and law review articles have addressed the issue. Most recent studies have concluded that the felony murder rule does not have a deterrent effect on the commission of dangerous felonies or deaths during the commission of a felony. Proponents have argued that the felony-murder rule encourages criminals to reduce the number of felonies they commit and take greater care to avoid causing death while committing a felony. Opponents argue that criminals are unaware that the felony-murder rule even exists, and that it is impossible to deter criminals from committing unintentional and unforeseeable acts.

A 2002 study of FBI crime date found that nearly 20 percent of all murders annually between the years of 1970-1998 were felony murders. The results of the study suggested that the felony-murder rule has a relatively small effect on criminal behavior, and it does not substantially affect either the overall felony or felony-murder rate. Secondly, the study found that the effects varied by type of felony. While difficult to determine, the rule may have had a positive effect on reducing deaths during theft related offenses, it may have actually increased the rates of death in robbery-homicides. The rule was found to have no effect on rape deaths.

Elimination of the Felony Murder Doctrine Worldwide

The United States adopted the felony murder rule as a form of English Common Law. English Common Law is the common legal system and concepts that has been adopted by courts throughout England, the United Kingdom, and their colonies worldwide.

1. Abolished in England and Wales via the Homicide Act of 1957.
2. Abolished in Northern Ireland via the Criminal Justice Act of Northern Ireland in 1966.
3. Held unconstitutional in Canada as breaching the principles of fundamental justice. (R v Vaillancourt (1987) 2 SCR 636.)
4. Abolished in Australia and replaced with a modified version known as “constructive murder” which requires that the offender commit an offense with a base penalty of 25 years to life in prison and that the death occurred in an attempt, during, or immediately after the base offense. Abolished and modified in the Crimes Act of 1958.
5. There was never a felony murder rule in Scotland.

In the United States there are still 46 states that have some form of a felony murder rule. Hawaii, Kentucky, Michigan, and Ohio have completely abolished the felony murder rule. In 24 of those states, including California, the punishment can be death. The felony murder rule has been removed from the American Law Institute’s Model Penal Code.

This bill does not eliminate the felony murder rule. The purpose of this bill is to merely revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

1. Court: Unknown, potentially-major workload costs in the millions of dollars to the courts to process and adjudicate petitions. Costs would be dependent on the number of individuals who would file a petition for vacation of conviction and resentencing pursuant to this bill. (General Fund*)
2. Department of Corrections and Rehabilitation (CDCR): Unknown, potentially-major costs in the hundreds of thousands of dollars to the millions of dollars to the department to supervise and transport inmates from state facilities to the appropriate courthouses for resentencing hearings. Actual costs would be dependent on the number of individuals whom CDCR is required to transport and how many inmates the department could transport and supervise per excursion. (General Fund)

Additionally, CDCR anticipates administrative workload costs of about $200,000 for case records audit and review of resentencing documents, data and document entry into the Strategic Offender Management System, and release processing and data entry into the Electronic Records Management System. (General Fund)

Unknown, potentially-major out-year or current-year savings in reduced incarceration expenses for inmates resentenced to a shorter term of incarceration. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual savings would be dependent on the number of individuals who successfully petition the court for resentencing and whose sentences to state prison are reduced to a shorter term than what was initially imposed. When these averted admissions are compounded, the savings could reach into the millions of dollars annually. (General Fund)

1. Local costs: Unknown costs to county District Attorneys’ Offices and Public Defenders’ Offices to litigate petitions for resentencing. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

SUPPORT: (Verified 5/25/18)

American Civil Liberties Union of California

American Friends Service Committee

Anti-Recidivism Coalition

Beit T’Shavah

Bend the Arc Jewish Action

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Public Defenders Association

Californians for Safety and Justice

Californians United for a Responsible Budget

CARES for Youth

Catholic Worker Hospitality House

Center for Juvenile Law and Policy

Center on Juvenile and Criminal Justice

Community Housing Partnership

Community Works West

Courage Campaign

East Side Studios

Ella Baker Center for Human Rights

Fair Chance Project

Felony Murder Elimination Project

Friends Committee on Legislation of California

Full Moon Pickles and Catering

Human Rights Watch

Initiate Justice

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Pacific Juvenile Defender Center

Pillars of the Community

Place4Grace

Prison Activist Resource Center

Prisoner Advocacy Network

Prisoner Hunger Strike Solidarity

Restore Justice

Riverside Temple Beth El

Rubicon Programs

Showing Up for Racial Injustice – Long Beach

Sister Inmate; Survived & Punished

The Advocacy Fund

The Modesto/Stanislaus NAACP

Time for Change Foundation

United Auto Workers Local 2865

University of San Francisco School of Law’s Criminal and Juvenile Justice Clinic and Racial Justice Clinic

USC Gould School of Law Post-Conviction Justice Project

WE ARE HERE TO HELP

Women’s Center for Creative Work

Women’s Council of the California Chapter of the National Association of Social Workers

Young Women’s Freedom Center

Youth Justice Coalition

29 individuals

OPPOSITION: (Verified 5/25/18)

Association of Deputy District Attorneys

California Association of Code Enforcement Officer

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotic Officers Association

California Peace Officers’ Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles County Professional Peace Officers Association

Peace Officers Research Association

Riverside Sheriffs Association

Prepared by:

5/29/18 9:08:31

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1437 (Skinner) - Accomplice liability for felony murder

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Bill Summary:

SB 1437 would prohibit the application of the felony-murder rule to a participant to or conspirator of the underlying felony who was not the actual killer, except as specified.

Fiscal Impact:

• Court: Unknown, potentially-major workload costs in the millions of dollars to the courts to process and adjudicate petitions. Costs would be dependent on the number of individuals who would file a petition for vacation of conviction and resentencing pursuant to this bill. (General Fund*)
• Department of Corrections and Rehabilitation (CDCR): Unknown, potentially-major costs in the hundreds of thousands of dollars to the millions of dollars to the department to supervise and transport inmates from state facilities to the appropriate courthouses for resentencing hearings. Actual costs would be dependent on the number of individuals whom CDCR is required to transport and how many inmates the department could transport and supervise per excursion. (General Fund)

Additionally, CDCR anticipates administrative workload costs of about $200,000 for case records audit and review of resentencing documents, data and document entry into the Strategic Offender Management System (SOMS), and release processing and data entry into the Electronic Records Management System. (General Fund)

Unknown, potentially-major out-year or current-year savings in reduced incarceration expenses for inmates resentenced to a shorter term of incarceration. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual savings would be dependent on the number of individuals who successfully petition the court for resentencing and whose sentences to state prison are reduced to a shorter term than what was initially imposed. When these averted admissions are compounded, the savings could reach into the millions of dollars annually. (General Fund)

• Local costs: Unknown costs to county District Attorneys’ Offices and Public Defenders’ Offices to litigate petitions for resentencing. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

*Trial Court Trust Fund

Author Amendments:

Revise whom the felony-murder rule applies to and reform the resentencing provisions of the bill.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1437 (Skinner) - Accomplice liability for felony murder

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1437 would prohibit the application of the felony-murder rule to a participant to or conspirator of the underlying felony who did not commit the homicidal act personally.

Fiscal Impact:

• Court: Unknown, potentially-major costs in the millions of dollars to the courts to process and adjudicate resentencing petitions. Costs would be dependent on the number of individuals who would file a petition for resentencing pursuant to this bill. (General Fund*)
• Department of Corrections and Rehabilitation (CDCR): Unknown, potentially-major costs in the hundreds of thousands of dollars to the millions of dollars to the department to supervise and transport inmates from state facilities to the appropriate courthouses for resentencing hearings. Actual costs would be dependent on the number of individuals whom CDCR is required to transport and how many inmates the department could transport and supervise per excursion. (General Fund)

Additionally, CDCR anticipates administrative workload costs of about $200,000 for case records audit and review of resentencing documents, data and document entry into the Strategic Offender Management System (SOMS), and release processing and data entry into the Electronic Records Management System. (General Fund)

Unknown, potentially-major out-year or current-year savings in reduced incarceration expenses for inmates resentenced to a shorter term of incarceration. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual savings would be dependent on the number of individuals who successfully petition the court for resentencing and whose sentences to state prison are reduced to a shorter term than what was initially imposed. When these averted admissions are compounded, the savings could reach into the millions of dollars annually. (General Fund)

• Local costs: Unknown costs to county District Attorneys’ Offices and Public Defenders’ Offices to litigate petitions for resentencing. These costs likely would be reimbursable by the state, the extent to which would be determined by the Commission on State Mandates. (General Fund, local funds)

*Trial Court Trust Fund

Background:

California law defines murder as “the unlawful killing of a human being or a fetus with malice aforethought.” (Pen. Code, § 187, subd. (a).) Murder is distinguishable from manslaughter due to the additional element of malice, which may be expressed or implied. Murder is further delineated into first and second degrees. Depending on the associated circumstances of the offense, first-degree murder carries the possible punishments of death, life in prison without the possibility of parole, or a term in state prison of twenty-five years to life. First-degree murder, in part, is a murder that is committed in the perpetration of, or attempted perpetration of, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Any murder not enumerated as first-degree murder in statute is second-degree murder, which carries a punishment of a term in state prison of fifteen years to life.

California voters passed Proposition 8 (1982), which created a statutory definition of a “serious felony” and enacted what is commonly known as the Three Strikes Law. Both the serious felony list and the Three Strikes Law were later amended by the voters with Proposition 21 (2000) and Proposition 36 (2012), respectively. The Three Strikes Law requires increased penalties for certain recidivist persons in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.

The felony-murder rule (or doctrine) can result in a first-degree or a second-degree murder conviction. The rule creates culpability for murder for people who kill another person during the commission of a felony. The culpability extends to accomplices and co-conspirators. Moreover, the death does not need to be in furtherance of the felony offense and may be accidental.

First-degree felony murder takes place when a death occurs during the commission of one of the enumerated crimes associated with first-degree murder. Second-degree felony murder occurs when a death results from the commission of a felony that (1) has not been included in the first-degree murder category and (2) is, objectively, “inherently dangerous” to human life. The court has held that a felony is inherently dangerous when it cannot be committed without creating a substantial risk that someone could be killed. (People v. Burroughs (1984) 35 Cal.3d 824, 833.)

Proposed Law:

This bill would:

• Prohibit malice from being imputed to a person based solely on his or her participation in a crime.
• Prohibit a participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.
• Prohibit a participant or conspirator in the perpetration or attempted perpetration of one of the specified first-degree murder felonies in which a death occurs from being liable for murder, unless the person:
  • Personally committed the homicidal act;
  • Acted with premeditated intent to aid and abet an act wherein a death would occur; or,
  • Was a major participant in the underlying felony and acted with reckless indifference to human life.
• Include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.
• Provide a means of resentencing a person when all of the following apply:
  • A complaint, information, or indictment was filed against him or her that allowed the prosecution to proceed under a theory of first-degree felony murder, second-degree felony murder, or murder under the natural and probable consequences doctrine;
  • The person was sentenced for first-degree or second-degree murder or accepted a plea offer in lieu of a trial at which he or she could be convicted for first-degree or second-degree murder; and,
  • The person could not be charged with murder after the enactment of this bill.
• Provide that the court cannot, through this resentencing process, remove a strike from the petitioner’s record.

Related Legislation:

SCR 48 (Skinner, Ch. 175, Res. 2017) resolved that the Legislature recognizes a need for statutory changes to the felony-murder rule to more equitably sentence persons in accordance with their involvement in the crime.

AB 2195 (Bonilla, 2016) would have required the collection and reporting, as specified, of data on the number of persons, by race and gender, charged with and convicted of felony murder. AB 2195 was held on the Suspense File of the Assembly Committee on Appropriations.

SB 878 (Hayden, 1999) would have required the court, after a conviction of more than one defendant of first-degree felony murder, to determine, prior to imposing the sentence on the defendant who did not physically or directly commit the murder, whether the imposition of a sentence of first-degree murder is proportionate to the offense committed by the defendant and to the defendant's culpability of the offense, based on specified factors. SB 878 failed passage on the Senate floor.

Staff Comments:

As the abstract of judgement reflects only the degree of a conviction for murder, it is difficult to determine the number of individuals incarcerated for murder whose basis of conviction is the felony-murder rule. The Department of Corrections and Rehabilitation similarly does not track this information. According to information from the author, as quoted by the analysis of this bill by the Senate Committee on Public Safety, 72 percent of women currently incarcerated in California with a life sentence did not personally commit the homicidal act.

With respect to the overall population in state prison for a murder conviction, CDCR reports that a snapshot on December 31, 2017 showed 14,473 inmates were serving a term for the principal offense of first-degree murder and 7,299 were serving a term for the principal offense of second-degree murder. If 10 percent of this population, or 2,177 individuals, would file a petition for resentencing under this bill, and it took the court an average of four hours to adjudicate a petition from receipt to final order, it would result in additional workload costs to the court of about $7.6 million. While the court is not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.

Similarly, SB 1437 would produce additional costs to CDCR to transport petitioners to and from court hearings. There are many factors that affect the costs of out-of-institution transportation, including each inmate’s escape risk and in-custody behavior, the distance from an inmate’s housing facility to the courthouse, and the pace at which a court moves through its docket. Presuming that two correctional officers with regular hourly wages would transport one inmate with a total travel and court time of four hours, which is a conservative assumption, this bill would cost the department almost $300 per hearing. If the court and travel time were extended, department costs would rise commensurately. If the department were able to transport multiple inmates to a courthouse at one time, the per-inmate costs would be lowered in turn.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1437 Hearing Date: April 24, 2018

Subject: Accomplice Liability for Felony Murder

HISTORY

Source: Restore Justice (co-sponsor)

Anti-Recidivism Coalition (co-sponsor)

Californians for Safety and Justice (co-sponsor)

California Coalition for Women Prisoners (co-sponsor)

CARES for Youth (co-sponsor)

Felony Murder Elimination Project (co-sponsor)

Initiate Justice (co-sponsor)

Pacific Juvenile Defender Center (co-sponsor)

University of San Francisco School of Law Criminal and Juvenile Justice Clinic and Racial Justice Clinic (co-sponsor)

USC Gould School of Law Post-Conviction Justice Project (co-sponsor)

Youth Justice Coalition (co-sponsor)

Prior Legislation: SCR 48 (Skinner) – Ch. 175, Stats. 2017

AB 2195 (Bonilla) – 2016, failed passage in Assembly Appropriations

SB 878 (Hayden) – 1999, failed passage on the Senate Floor

Support: The Advocacy Fund; Bend the Arc Jewish Action; Californians United for a Responsible Budget; California Public Defenders Association; Catholic Worker Hospitality House; Center for Juvenile Law and Policy; Center on Juvenile and Criminal Justice; Community Housing Partnership; Community Works West; Courage Campaign; East Side Studios; Ella Baker Center for Human Rights; Fair Chance Project; Friends Committee on Legislation of California Lawyers Committee for Civil Rights of the San Francisco Bay Area; Felony Murder Elimination Project; Full Moon Pickles and Catering; the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners with Children; The Modesto/Stanislaus NAACP; Pillars of the Community; the Place4Grace; Prison Activist Resource Center; Prisoner Advocacy Network; Prisoner Hunger Strike Solidarity; Riverside Temple Beth El; Rubicon Programs; Showing Up for Racial Injustice – Long Beach; Sister Inmate; Survived & Punished; Time for Change Foundation; University of San Francisco School of Law’s Criminal and Juvenile Justice Clinic and Racial Justice Clinic; United Auto Workers Local 2865; WE ARE HERE TO HELP; Women’s Center for Creative Work; 9iWomen’s Council of the California Chapter of the National Association of Social Workers; Young Women’s Freedom Center; 29 individuals

Opposition: California District Attorneys Association; California Police Chiefs Association; California State Sheriffs’ Association; Peace Officers Research Association; Riverside Sheriffs Association

PURPOSE

The purpose of this bill is to revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. (Pen. Code, § 187, subd. (a).)

Existing law defines malice for this purpose as either express or implied and defines those terms. (Pen. Code, § 188.)

• It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.
• It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Existing law provides that when it is shown that the killing resulted from an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice. (Pen. Code, § 188.)

This bill would prohibit malice from being imputed to a person based solely on his or her participation in a crime.

This bill would prohibit a participant in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies. (Pen. Code, § 189.)

Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. (Pen. Code, § 190.)

Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life. (Pen. Code, §§ 187 & 190.05.)

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person personally committed the homicidal act, the person acted with premeditated intent to aid and abet an act wherein a death would occur, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. (Pen. Code, § 667.1.)

Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified. (Pen. Code, §§ 667.5 & 1192.7.)

This bill would include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.

This bill would provide a means of resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, 2nd degree felony murder, or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill.

The bill would provide that the court cannot, through this resentencing process, remove a strike from the petitioner’s record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.

COMMENTS

1. Need for This Bill

According to the author:

SB 1437 seeks to restore proportional responsibility in the application of California’s murder statute reserving the harshest punishments for those who intentionally planned or actually committed the killing.

In criminal justice, a person’s intent is a critical element to determine punishment for a criminal offense with one glaring exception. Under current California law, prosecutors are able to replace the intent to commit murder with the intent to commit a felony if the felony results in a death. Thus a person can be found guilty of murder if a death occurs while a felony is committed. It does not matter whether the death was intended or whether a person had knowledge that the death had even occurred.

The result is that California’s felony murder statute has been applied even when a death was accidental, unintentional or unforeseen but occurred during the course of certain crimes.

This application of the statute has caused disproportionately long sentences for people who did not commit murder, and who in some cases had, at best, very peripheral involvement in the crime that resulted in a death.

According to a 2018 survey by the Anti-Recidivism Coalition and Restore Justice, 72% of women currently incarcerated in California with a life sentence did not commit the homicide. Additionally, the average age of those charged and sentenced under this interpretation of the murder statute is 20 years old; indicating that youth who were peripheral to a homicide are often held as responsible as the actual killer.

The California Supreme Court has commented on the necessity to fix this interpretation of California’s murder statute. In People v. Dillon, the state Supreme Court called the use of the felony murder rule to charge those who did not commit a murder, or had no knowledge or involvement in the planning of the murder, “barbaric”.

States such as Arkansas, Massachusetts, Kentucky, Hawaii, Michigan, and Ohio have narrowed the scope of what is known as the felony murder rule and limited the application of their murder statute. Ohio, for example, now requires that a killing that occurs during a felony must be an intentional killing in order to receive a first-degree murder conviction.

SB 1437 clarifies that a person may only be convicted of murder if the individual willingly participated in an act that results in a homicide or that was clearly intended to result in a homicide.

Under this bill, prosecutors would no longer be able to substitute the intent to commit a felony for the intent to commit murder.

SB 1437 would also provide a means for resentencing those who were convicted of murder under the felony murder rule but who did not actually commit the homicide.

1. Murder Generally

Murder is the most egregious form of homicide, which is the taking of the life of another human being. Homicides are killings of another, whether lawful or unlawful. Under California law murder is defined as “the unlawful killing of a human being or a fetus with malice aforethought.” (Pen. Code, § 187, subd. (a).) Murder is distinguishable from manslaughter because the element of “malice” is required to be convicted of murder.

Malice

Both first-degree murder and second-degree murder require what is known as “malice.” Malice may be expressed or implied. Express malice means that you specifically intend to kill the victim. Implied malice is when: (1) the killing resulted from an intentional act, (2) the natural consequences of the act are dangerous to human life, and (3) the act was committed deliberately with the knowledge that of the danger to human life, and with a conscious disregard for that life.

The most simple way to understand the element of malice is that the act does not require ill will or hatred to a particular person. Merely acting with a wanton disregard for human life and committing an act that involves a high degree of probability that it will result in death, is acting with malice aforethought. (People v. Summers (1983) 147 Cal.App. 3d 180, 184.)

First-Degree Murder

There are three methods for convicting a person of first-degree murder in California:

• If the killing was willful, deliberate, and premeditated.
• The murder was committed: through use of a destructive or explosive device, with ammunition designed to penetrate armor, poison, by lying in wait, or by inflicting torture.
• With the felony-murder rule (by committing a specifically enumerated felony that turns any death committed during the course of that felony into first-degree murder).

Second-Degree Murder

Second-degree murder is distinguishable from first-degree murder because it is willful, but it is not deliberate and premeditated. In principle, second-degree murder has always been intended to therefore encompass all murder that is not defined as first-degree murder. So for instance, if a defendant initiates a physical altercation with another person without intending to kill that person, nevertheless that person dies as a result of the altercation the defendant initiated, the defendant is likely to have committed second-degree murder (absent a legal defense).

Punishment

First-Degree Murder

In California a conviction for first-degree murder (including felony-murder) can result in one of three sentences:

• Imprisonment in state prison for a term of 25 years to life;
• Life imprisonment in state prison without the possibility of parole; or
• Death

State law requires a sentence of life imprisonment without parole or death for homicides involving special circumstances set by the California Penal Code. For example, the court must consider whether the defendant:

• committed first degree murder while engaging in a felony or
• avoiding a lawful arrest,
• using a bomb or explosive device, or
• intending to kill another person for financial gain.

The court must also confer a sentence of life imprisonment without parole or death if the defendant:

• committed first degree murder of a peace officer,
• federal law enforcement officer,
• firefighter,
• prosecutor, or
• judge.

State laws also allow for the most stringent forms of punishment when the murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity." This generally refers to murders involving torture.

Second-Degree Murder

California state laws set the term of imprisonment for second degree murder as 15 years to life in state prison. The term increases to 20 years to life if the defendant killed the victim while shooting a firearm from a motor vehicle. In addition, the term may increase to 25 years to life if the victim of the crime was a peace officer.

State laws also allow the court to consider whether the defendant has a prior criminal record. If the defendant has previously served time in prison for murder, the possible sentence for second degree murder may range between 15 years to life in state prison and life imprisonment without the possibility of parole.

1. The Felony Murder Doctrine

The felony murder rule applies to murder in the first degree as well as murder in the second degree. The rule creates liability for murder for actors (and their accomplices) who kill another person during the commission of a felony. The death need not be in furtherance of the felony, in fact the death can be accidental.

The purpose of the rule is to deter those who commit felonies from killing by holding them strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental during the perpetration or attempted perpetration of the felony. (People v. Cavitt (2004) 33 Cal. 4^th 187, 197.)

First-Degree Felony Murder

First-degree felony murder rule applies when a death occurs during the commission of one of a list of enumerated felonies.  These felonies are as follows:  arson, robbery, any burglary, carjacking, train wrecking, kidnapping, mayhem, rape, torture, and a list of sexual crimes (including rape, sodomy, oral copulation, forcible penetration, or lewd acts with a minor). (Pen. Code, § 189.)

If someone is standing watch while his friend breaks into a locked vehicle and is discovered by a security guard and they all flee on foot.  If the security guard falls to the ground in pursuit of the burglars and dies as a result of the fall, both co-defendants could be convicted of murder.   

Second-Degree Felony Murder

Second degree murder occurs when a death occurs during the commission of a felony that has not been enumerated in code as constituting first-degree felony murder, but that courts have defined as “inherently dangerous.”  (People v. Ford (1964) 60 Cal.2d 772.) The standard courts are supposed to use for inherently dangerous is that the felony cannot be committed without creating a substantial risk that someone could be killed.  (People v. Burroughs (1984) 35 Cal. 3d 824, 833.) 

So therefore, a defendant who fires a weapon in the air to deter criminals from burglarizing their property can be convicted of second-degree felony murder if the firing of the weapon kills a human being.  That defendant could be convicted of 15-years to life in state prison. 

1. Lack of Deterrent Effect on Criminal Behavior

“The Legislature has said the effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first-degree murder for any homicide committed in the course thereof.” (People v. Cavitt (2004) 33 Cal. 4^th 187, 197.)

The deterrent effect of the felony-murder doctrine has been debated for decades. Countless legal scholars and law review articles have addressed the issue. Most recent studies have concluded that the felony murder rule does not have a deterrent effect on the commission of dangerous felonies or deaths during the commission of a felony.^[1] Proponents have argued that the felony-murder rule encourages criminals to reduce the number of felonies they commit and take greater care to avoid causing death while committing a felony. Opponents argue that criminals are unaware that the felony-murder rule even exists, and that it is impossible to deter criminals from committing unintentional and unforeseeable acts.

A 2002 study of FBI crime date found that nearly 20 percent of all murders annually between the years of 1970-1998 were felony murders. The results of the study suggested that the felony-murder rule has a relatively small effect on criminal behavior, and it does not substantially affect either the overall felony or felony-murder rate. Secondly, the study found that the effects varied by type of felony. While difficult to determine, the rule may have had a positive effect on reducing deaths during theft related offenses, it may have actually increased the rates of death in robbery-homicides. The rule was found to have no effect on rape deaths.^[2]

1. Elimination of the Felony Murder Doctrine Worldwide

The United States adopted the felony murder rule as a form of English Common Law. English Common Law is the common legal system and concepts that has been adopted by courts throughout England, the United Kingdom, and their colonies worldwide.

• Abolished in England and Wales via the Homicide Act of 1957.
• Abolished in Northern Ireland via the Criminal Justice Act of Northern Ireland in 1966.
• Held unconstitutional in Canada as breaching the principles of fundamental justice. (R v Vaillancourt (1987) 2 SCR 636.)
• Abolished in Australia and replaced with a modified version known as “constructive murder” which requires that the offender commit an offense with a base penalty of 25 years to life in prison and that the death occurred in an attempt, during, or immediately after the base offense. Abolished and modified in the Crimes Act of 1958.
• There was never a felony murder rule in Scotland.

In the United States there are still 46 states that have some form of a felony murder rule. Hawaii, Kentucky, Michigan, and Ohio have completely abolished the felony murder rule. In 24 of those states, including California, the punishment can be death. The felony murder rule has been removed from the American Law Institute’s Model Penal Code.

This bill does not eliminate the felony murder rule. The purpose of this legislation is to merely revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.

1. Difficulties in Gathering Data on Felony Murder in California

The problem in collecting data on felony murder is that the abstract of judgement in murder cases only reflect conviction of murder in the first or second degree. It does not reflect the basis for the conviction. Felony murder is not a separate charge which can be easily tracked. A murder defendant is charged with murder in violation of Penal Code § 187 and the degree is determined by the trier of fact at trial, or is admitted by the defendant when entering a plea. There isn't any way to determine from the abstract of judgment if a first or second-degree murder conviction was premeditated, unpremeditated, or felony murder.

The only exception, where the conviction would be broken down, is in murder cases where there is a special circumstance which makes the offense punishable by death or life without parole. In these cases, a felony murder special circumstance (Penal Code §190.2 (a) (17)) would be alleged in the charging document and reflected in the abstract of judgment if found to be true. These death penalty/LWOP cases, where data can be obtained, are only a portion of the overall murder cases.

It would appear that the only way to gather the data on numbers of felony murder convictions in California would be a case file inspection in the court in the jurisdiction where the conviction was obtained.

1. Argument in Support

According to the Pacific Juvenile Defender Center:

The Pacific Juvenile Defender Center (PJDC) provides support to more than 1000 juvenile trial lawyers, appellate counsel, law school clinical programs and non-profit law centers throughout California. We work to improve the quality of legal representation, assure fairness for youth in court proceedings, and promote practices that will produce good outcomes. As a regional affiliate of the Washington, D.C.-based National Juvenile Defender Center, we are also part of national efforts to improve the treatment of youth in the justice system.

Under current California law, a person may be held liable for first-degree murder without intending for a killing to occur or aiding the killing in any way. The death may be accidental, unintentional, and unforeseen, but as long as it occurred during the course of certain crimes, all participants – whether or not they performed the homicidal act, knew a co-participant was armed, or were even at the scene of the killing – may be liable for first-degree murder.

Our members are well aware of the need to reform felony murder rules because juveniles are so often affected by them. Almost universally, young people do things in groups, and when something goes wrong our clients are genuinely surprised and horrified. Even when they have agreed to do some underlying act such as robbery, they never expect that anyone will get hurt. Current California laws allow those youth to be convicted of murder just as would be a person who actually caused or intended the death to occur. While allowing conviction for murder without the requisite action or intent is unfair to adults and juveniles alike, it is especially unfair to young people because they are developmentally incapable of maturely assessing the risks and consequences of their acts.

In a series of cases, the United States Supreme Court has held that juveniles are less culpable than adults, and that traditional justifications for punishment cannot fairly be applied to them. The court has specifically noted that young peoples’ actions are characterized by immaturity, impetuosity, failure to appreciate risks and consequences; and peer pressure1 – exactly the kinds of factors that would result in being involved in an unintended situation where a death occurred. As neurological development continues young people change and become more capable of making mature judgments, but the human brain is not fully mature until age 25,2 so the number of juveniles and young adults impacted by the felony murder rule is substantial.

S.B. 1437 would not eliminate felony murder liability, but it would impose significant limitations on it. The bill would amend Penal Code section 188, subdivision (a)(3), to prohibit malice from being imputed to a person based solely on his or her participation in a crime, and would prohibit a participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act. Pursuant to amendments to Penal Code section 189, subdivision (e), it would prohibit a participant or conspirator in the perpetration or attempted perpetration of specified felonies listed in Penal Code section 189, subd. (a), in which a death occurs from being liable for murder, unless (1) the person personally committed the homicidal act; (2) the person acted with premeditated intent to aid and abet an act wherein a death would occur; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life. S.B. 1437 would also add Penal Code section 1425, providing a resentencing mechanism to re-examine cases that were decided without those limitations.

This legislation will not eliminate criminal responsibility for accomplices in criminal activity. Participants in crime will still be held responsible for their involvement in the underlying crime, and those who actually cause a death will still be liable for murder. S.B. 1437 simply reduces the unfairness of the felony murder rule by refocusing attention on the intent and actions of the participants.

It is time for this Legislature to move toward elimination of felony murder liability. Thirty-five years ago, in People v. Dillon (1983) 34 Cal.3d. 441, the California Supreme Court referred to our felony murder rules as “barbaric,” but concluded that because our rules are statutorily based, only the Legislature can change them. The rule has already been abolished or limited in a number of countries, and in a growing number of states, including Arkansas, Massachusetts, Kentucky, Hawaii, Michigan, and Ohio.

8. Argument in Opposition

According to the California District Attorneys Association:

This bill eliminates murder liability for those who participate in felonies that are inherently dangerous to human life in which a death occurs if those participants do not personally commit the homicidal act, do not act with premeditated intent to aid and abet an act in which a death would occur, or for those who do not act as a major participant in the underlying felony. While we agree that there is room for some measured reform in this area, the complete elimination of murder liability goes too far and draws no distinction between those who participate in dangerous felonies that result in the death of someone and those which do not.

There are a number of concerns raised in this bill:

First, the retroactive application of this bill applies to convictions that resulted from both jury and bench trials as well as convictions that resulted from negotiated plea bargains. Under the provisions of this measure, a resentencing hearing will necessarily require a full court record, including transcripts and exhibits, to determine the exact level of participation in the crime in order to determine whether a particular defendant is entitled to relief. In cases that resolved through a negotiated plea, no such record exists and virtually all participants in murders may qualify for relief to which they may not be entitled.

Additionally, this bill requires the prosecution to prove beyond a reasonable doubt that the petitioner falls into one of the categories that precludes resentencing. In cases that resolved through a negotiated plea, the absence of a full court record will necessarily prevent the people from establishing beyond a reasonable doubt whether a petitioner is excluded. The result will entitle virtually all petitioners who apply, even those who were major participants in the crime which resulted in death, to be entitled to a resentencing and the elimination of their well-deserved criminal liability.

Second, by placing the burden on the prosecution to prove beyond a reasonable doubt that petitioners do not qualify for resentencing, this bill will require the litigation of facts previously not litigated in the original case, particularly in cases that resolved through a plea. It is unclear from this bill whether the determination of those facts will be conducted by the resentencing judge or will necessitate a jury – which has significant procedural and constitutional implications as well as significant costs.

Moreover, this bill provides no exception to allow for the trial transcript to be used in a resentencing hearing. The effect of this would be to necessitate the calling of witnesses, other victims, and family members who may have been involved in the original case. The effects of this to crime victims and survivors would be devastating.

Finally, the requirements placed on a petitioner to seek a resentencing hearing merely require the submission of a request indicating that a petitioner was convicted of murder and that the prosecution theory could have included a theory of first or second degree felony murder. Charging documents, plea forms, jury verdict forms and other documents involved in the prosecution of murder cases do not specify the theory under which someone is charged or even convicted of murder. The only way to determine whether a felony murder theory was advanced in a particular case would be to examine the transcripts at trial. The effect of this provision of the bill would be to allow everyone convicted of murder – actual killers, those acting with premeditated intent, and major participants acting with reckless indifference to human life included – to successfully petition to have a resentencing hearing. Combined with the burden on the prosecution to prove beyond a reasonable doubt the petitioner’s ineligibility for a resentencing, this bill will effectively authorize the release of actual killers and those who played major roles in the killing of others during dangerous felonies.

We are committed to working to find a reasonable and measured approach to felony murder reform. Unfortunately this bill falls short and creates some potentially disastrous and costly problems that renders this bill unworkable.

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1. The American Felony Murder Rule: Purpose and Effect by Daniel Ganz, 2012, UC Berkeley; The Culpability of Felony Murder by Guyora Binder, 2008 Notre Dame Law Review; Felony-Murder Rule a Doctrine at Constitutional Crossroads by Nelson E. Roth and Scott E. Sundby, 1985 Cornell Law Review ↑

2. Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data by Anup Malani, 2002, (clerk to Justice Sandra Day O’Connor, U.S. Supreme Court) ↑