This measure would recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

This measure would recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

This measure would recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

This measure would recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

WHEREAS, According to the Department of Corrections and Rehabilitation (CDCR) Internet Web site, California continues to house inmates in numbers beyond its maximum capacity at an average of 130 percent of capacity. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 percent of capacity, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions; and

WHEREAS, In California, incarceration of an inmate by CDCR is costing taxpayers $70,836 annually, according to the Legislative Analysts Office as of the 201617 fiscal year; and

WHEREAS, It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under natural and probable consequences doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences which are not commensurate with the culpability of the defendant; and

WHEREAS, In California, defendants in felony murder cases are not judged based on their level of intention or culpability but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act; and

WHEREAS, In California, a conviction for capital murder results in a death or life without the possibility of parole sentence, a conviction for noncapital first-degree murder results in a sentence of 25 years to life imprisonment; and a sentence for second-degree murder as long as the facts do not indicate a shooting from a vehicle or the victim being a peace officer results in a sentence of 15 years to life; and

WHEREAS, A 17-percent grant rate in 2016 according to CDCR demonstrates that a 25 years to life sentence generally results in few defendants being granted parole; and

WHEREAS, Prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder; and

WHEREAS, Under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony (Section 189 of the Penal Code) to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent; and

WHEREAS, In the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an inherently dangerous felony; and

WHEREAS, Under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder; and

WHEREAS, It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felons action, especially when such conduct was not agreed upon; and

WHEREAS, Criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony murder theory inconsistent with basic principles of law and equity; and

WHEREAS, In California, to be liable for special circumstance felony murder and sentenced to death or to life without the possibility of parole, pursuant to Section 190.2 of the Penal Code, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life; (see People v. Banks (2015) 61 Cal.4th 788); and

WHEREAS, The California Supreme Court in the Banks decision stated that imposing these two statutory additional requirementsrequired to impose either life without the possibility of parole or a death sentencecomports with the United States Supreme Court Eighth Amendment jurisprudence proscribing cruel and unusual punishment; and

WHEREAS, In cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice; and

WHEREAS, In California, under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony; and

WHEREAS, Both Hawaii and Kentucky eradicated the practice by statute and Michigan abrogated the felony-murder rule through case law; and

WHEREAS, The Michigan 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 (People v. Aaron (1980) 299 N.W. 2d 304); and

WHEREAS, The due process clause found in both the Fourteenth and Fifth amendments to the United States Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime in order to convict the accused. This should hold true for felony murder cases, but the doctrine of felony murder circumvents this important principle and allows for conviction and punishment to be the same as for those who committed a murder with malice aforethought; and

WHEREAS, Felony murder was conceived in England in the 1700s and brought to the United States in the early 1800s. After much criticism from the courts in England due to the disproportionality of sentencing individuals who had no malice or intent to kill the same as perpetrators of the fatal act, Parliament abolished the felony-murder rule in 1957; and

WHEREAS, The United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule; and

WHEREAS, In addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the natural and probable consequences doctrine, which also results in greater punishment for lesser culpability; and

WHEREAS, In California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense (People v. Villa (1957) 156 Cal.App.2d 128); and

WHEREAS, Defendants charged and convicted under felony murder are subject to the same sentencing as the actual perpetrator of the murder, even if their actual involvement was limited to a lesser crime, judges and jurors are not allowed to apportion degrees of culpability. Good public policy dictates that after conviction, judges or jurors should be given this opportunity; similar to the method currently employed for serious felonies called strike hearings. In this way a defendant may receive a more appropriate sentence for the crime committed; and

WHEREAS, An aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that naturally and probably results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting (People v. Medina (2009) 46 Cal.4th 913); resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act; and

WHEREAS, As stated by Justice Goodwin Liu in People v. Cruz-Santos, this leads to overbroad application: At its essence, the natural and probable consequences doctrine imposes liability on the basis of negligence layered on top of a defendants culpability for aiding and abetting a target offense. (See People v. Chiu, (2014) 59 Cal.4th 155 at p. 164 [because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. ].) Although reasonable foreseeability can be a legitimate basis for assigning culpability, courts and commentators have long observed that the concept is susceptible to overbroad application. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 668 [there are clear judicial days on which a court can foresee forever]; Goldberg v. Housing Authority of City of Newark (N.J. 1962) 186 A.2d 291, 293 [Everyone can foresee the commission of crime virtually anywhere and at any time.]; Guthrie et al. (2001) Inside the Judicial Mind, 86 Cornell L.Rev. 777, 799 [Hindsight vision is 20/20. People overstate their own ability to have predicted the past and believe that others should have been able to predict events better than was possible. Psychologists call this tendency for people to overestimate the predictability of past events the hindsight bias. (fns. omitted)]; Rachlinski (1998) A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L.Rev. 571, 571 [Nothing is so easy as to be wise after the event. (fn. omitted, quoting Cornman v. The Eastern Counties Railway Co. (Exch. 1859) 157 Eng. Rep. 1050, 1052)].); and

WHEREAS, It is the proper role of trial courts to screen out cases in which the concept of foreseeability cannot bridge the gap between a defendants culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense. This judicial check serves to ensure that natural and probable consequences liabilitya judge made doctrine in tension with the usual mens rea requirement of the criminal lawis kept consistent with reasonable concepts of culpability. People v. Chiu (2014) 59 Cal.4th 155, 165; and

WHEREAS, It can be cruel and unusual punishment to not assess individual liability for nonperpetrators of the fatal act or in nonhomicide matters the criminal charge resulting in prosecution and impute culpability for anothers bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, According to the Department of Corrections and Rehabilitation (CDCR) Internet Web site, California continues to house inmates in numbers beyond its maximum capacity at an average of 130 percent of capacity. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 percent of capacity, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions; and

WHEREAS, In California, incarceration of an inmate by CDCR is costing taxpayers $70,836 annually, according to the Legislative Analysts Office as of the 201617 fiscal year; and

WHEREAS, It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under natural and probable consequences doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences which are not commensurate with the culpability of the defendant; and

WHEREAS, In California, defendants in felony murder cases are not judged based on their level of intention or culpability but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act; and

WHEREAS, In California, a conviction for capital murder results in a death or life without the possibility of parole sentence, a conviction for noncapital first-degree murder results in a sentence of 25 years to life imprisonment; and a sentence for second-degree murder as long as the facts do not indicate a shooting from a vehicle or the victim being a peace officer results in a sentence of 15 years to life; and

WHEREAS, A 17-percent grant rate in 2016 according to CDCR demonstrates that a 25 years to life sentence generally results in few defendants being granted parole; and

WHEREAS, Prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder; and

WHEREAS, Under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony (Section 189 of the Penal Code) to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent; and

WHEREAS, In the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an inherently dangerous felony; and

WHEREAS, Under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder; and

WHEREAS, It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felons action, especially when such conduct was not agreed upon; and

WHEREAS, Criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony murder theory inconsistent with basic principles of law and equity; and

WHEREAS, In California, to be liable for special circumstance felony murder and sentenced to death or to life without the possibility of parole, pursuant to Section 190.2 of the Penal Code, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life; (see People v. Banks (2015) 61 Cal.4th 788); and

WHEREAS, The California Supreme Court in the Banks decision stated that imposing these two statutory additional requirementsrequired to impose either life without the possibility of parole or a death sentencecomports with the United States Supreme Court Eighth Amendment jurisprudence proscribing cruel and unusual punishment; and

WHEREAS, In cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice; and

WHEREAS, In California, under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony; and

WHEREAS, Both Hawaii and Kentucky eradicated the practice by statute and Michigan abrogated the felony-murder rule through case law; and

WHEREAS, The Michigan 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 (People v. Aaron (1980) 299 N.W. 2d 304); and

WHEREAS, The due process clause found in both the Fourteenth and Fifth amendments to the United States Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime in order to convict the accused. This should hold true for felony murder cases, but the doctrine of felony murder circumvents this important principle and allows for conviction and punishment to be the same as for those who committed a murder with malice aforethought; and

WHEREAS, Felony murder was conceived in England in the 1700s and brought to the United States in the early 1800s. After much criticism from the courts in England due to the disproportionality of sentencing individuals who had no malice or intent to kill the same as perpetrators of the fatal act, Parliament abolished the felony-murder rule in 1957; and

WHEREAS, The United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule; and

WHEREAS, In addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the natural and probable consequences doctrine, which also results in greater punishment for lesser culpability; and

WHEREAS, In California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense (People v. Villa (1957) 156 Cal.App.2d 128); and

WHEREAS, Defendants charged and convicted under felony murder are subject to the same sentencing as the actual perpetrator of the murder, even if their actual involvement was limited to a lesser crime, judges and jurors are not allowed to apportion degrees of culpability. Good public policy dictates that after conviction, judges or jurors should be given this opportunity; similar to the method currently employed for serious felonies called strike hearings. In this way a defendant may receive a more appropriate sentence for the crime committed; and

WHEREAS, An aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that naturally and probably results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting (People v. Medina (2009) 46 Cal.4th 913); resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act; and

WHEREAS, As stated by Justice Goodwin Liu in People v. Cruz-Santos, this leads to overbroad application: At its essence, the natural and probable consequences doctrine imposes liability on the basis of negligence layered on top of a defendants culpability for aiding and abetting a target offense. (See People v. Chiu, (2014) 59 Cal.4th 155 at p. 164 [because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. ].) Although reasonable foreseeability can be a legitimate basis for assigning culpability, courts and commentators have long observed that the concept is susceptible to overbroad application. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 668 [there are clear judicial days on which a court can foresee forever]; Goldberg v. Housing Authority of City of Newark (N.J. 1962) 186 A.2d 291, 293 [Everyone can foresee the commission of crime virtually anywhere and at any time.]; Guthrie et al. (2001) Inside the Judicial Mind, 86 Cornell L.Rev. 777, 799 [Hindsight vision is 20/20. People overstate their own ability to have predicted the past and believe that others should have been able to predict events better than was possible. Psychologists call this tendency for people to overestimate the predictability of past events the hindsight bias. (fns. omitted)]; Rachlinski (1998) A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L.Rev. 571, 571 [Nothing is so easy as to be wise after the event. (fn. omitted, quoting Cornman v. The Eastern Counties Railway Co. (Exch. 1859) 157 Eng. Rep. 1050, 1052)].); and

WHEREAS, It is the proper role of trial courts to screen out cases in which the concept of foreseeability cannot bridge the gap between a defendants culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense. This judicial check serves to ensure that natural and probable consequences liabilitya judge made doctrine in tension with the usual mens rea requirement of the criminal lawis kept consistent with reasonable concepts of culpability. People v. Chiu (2014) 59 Cal.4th 155, 165; and

WHEREAS, It can be cruel and unusual punishment to not assess individual liability for nonperpetrators of the fatal act or in nonhomicide matters the criminal charge resulting in prosecution and impute culpability for anothers bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, According to the Department of Corrections and Rehabilitation (CDCR) Internet Web site, California continues to house inmates in numbers beyond its maximum capacity at an average of 130 percent of capacity. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 percent of capacity, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions; and

WHEREAS, In California, incarceration of an inmate by CDCR is costing taxpayers $70,836 annually, according to the Legislative Analysts Office as of the 201617 fiscal year; and

WHEREAS, It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under natural and probable consequences doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences which are not commensurate with the culpability of the defendant; and

WHEREAS, In California, defendants in felony murder cases are not judged based on their level of intention or culpability but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act; and

WHEREAS, In California, a conviction for capital murder results in a death or life without the possibility of parole sentence, a conviction for noncapital first-degree murder results in a sentence of 25 years to life imprisonment; and a sentence for second-degree murder as long as the facts do not indicate a shooting from a vehicle or the victim being a peace officer results in a sentence of 15 years to life; and

WHEREAS, A 17-percent grant rate in 2016 according to CDCR demonstrates that a 25 years to life sentence generally results in few defendants being granted parole; and

WHEREAS, Prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder; and

WHEREAS, Under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony (Section 189 of the Penal Code) to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent; and

WHEREAS, In the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an inherently dangerous felony; and

WHEREAS, Under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder; and

WHEREAS, It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felons action, especially when such conduct was not agreed upon; and

WHEREAS, Criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony murder theory inconsistent with basic principles of law and equity; and

WHEREAS, In California, to be liable for special circumstance felony murder and sentenced to death or to life without the possibility of parole, pursuant to Section 190.2 of the Penal Code, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life; (see People v. Banks (2015) 61 Cal.4th 788); and

WHEREAS, The California Supreme Court in the Banks decision stated that imposing these two statutory additional requirementsrequired to impose either life without the possibility of parole or a death sentencecomports with the United States Supreme Court Eighth Amendment jurisprudence proscribing cruel and unusual punishment; and

WHEREAS, In cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice; and

WHEREAS, In California, under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony; and

WHEREAS, Both Hawaii and Kentucky eradicated the practice by statute and Michigan abrogated the felony-murder rule through case law; and

WHEREAS, The Michigan 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 (People v. Aaron (1980) 299 N.W. 2d 304); and

WHEREAS, The due process clause found in both the Fourteenth and Fifth amendments to the United States Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime in order to convict the accused. This should hold true for felony murder cases, but the doctrine of felony murder circumvents this important principle and allows for conviction and punishment to be the same as for those who committed a murder with malice aforethought; and

WHEREAS, Felony murder was conceived in England in the 1700s and brought to the United States in the early 1800s. After much criticism from the courts in England due to the disproportionality of sentencing individuals who had no malice or intent to kill the same as perpetrators of the fatal act, Parliament abolished the felony-murder rule in 1957; and

WHEREAS, The United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule; and

WHEREAS, In addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the natural and probable consequences doctrine, which also results in greater punishment for lesser culpability; and

WHEREAS, In California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense (People v. Villa (1957) 156 Cal.App.2d 128); and

WHEREAS, Defendants charged and convicted under felony murder are subject to the same sentencing as the actual perpetrator of the murder, even if their actual involvement was limited to a lesser crime, judges and jurors are not allowed to apportion degrees of culpability. Good public policy dictates that after conviction, judges or jurors should be given this opportunity; similar to the method currently employed for serious felonies called strike hearings. In this way a defendant may receive a more appropriate sentence for the crime committed; and

WHEREAS, An aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that naturally and probably results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting (People v. Medina (2009) 46 Cal.4th 913); resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act; and

WHEREAS, As stated by Justice Goodwin Liu in People v. Cruz-Santos, this leads to overbroad application: At its essence, the natural and probable consequences doctrine imposes liability on the basis of negligence layered on top of a defendants culpability for aiding and abetting a target offense. (See People v. Chiu, (2014) 59 Cal.4th 155 at p. 164 [because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. ].) Although reasonable foreseeability can be a legitimate basis for assigning culpability, courts and commentators have long observed that the concept is susceptible to overbroad application. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 668 [there are clear judicial days on which a court can foresee forever]; Goldberg v. Housing Authority of City of Newark (N.J. 1962) 186 A.2d 291, 293 [Everyone can foresee the commission of crime virtually anywhere and at any time.]; Guthrie et al. (2001) Inside the Judicial Mind, 86 Cornell L.Rev. 777, 799 [Hindsight vision is 20/20. People overstate their own ability to have predicted the past and believe that others should have been able to predict events better than was possible. Psychologists call this tendency for people to overestimate the predictability of past events the hindsight bias. (fns. omitted)]; Rachlinski (1998) A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L.Rev. 571, 571 [Nothing is so easy as to be wise after the event. (fn. omitted, quoting Cornman v. The Eastern Counties Railway Co. (Exch. 1859) 157 Eng. Rep. 1050, 1052)].); and

WHEREAS, It is the proper role of trial courts to screen out cases in which the concept of foreseeability cannot bridge the gap between a defendants culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense. This judicial check serves to ensure that natural and probable consequences liabilitya judge made doctrine in tension with the usual mens rea requirement of the criminal lawis kept consistent with reasonable concepts of culpability. People v. Chiu (2014) 59 Cal.4th 155, 165; and

WHEREAS, It can be cruel and unusual punishment to not assess individual liability for nonperpetrators of the fatal act or in nonhomicide matters the criminal charge resulting in prosecution and impute culpability for anothers bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, According to the Department of Corrections and Rehabilitation (CDCR) Internet Web site, California continues to house inmates in numbers beyond its maximum capacity at an average of 130 percent of capacity. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 percent of capacity, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions; and

WHEREAS, In California, incarceration of an inmate by CDCR is costing taxpayers $70,836 annually, according to the Legislative Analysts Office as of the 201617 fiscal year; and

WHEREAS, It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under natural and probable consequences doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences which are not commensurate with the culpability of the defendant; and

WHEREAS, In California, defendants in felony murder cases are not judged based on their level of intention or culpability but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act; and

WHEREAS, In California, a conviction for capital murder results in a death or life without the possibility of parole sentence, a conviction for noncapital first-degree murder results in a sentence of 25 years to life imprisonment; and a sentence for second-degree murder as long as the facts do not indicate a shooting from a vehicle or the victim being a peace officer results in a sentence of 15 years to life; and

WHEREAS, A 17-percent grant rate in 2016 according to CDCR demonstrates that a 25 years to life sentence generally results in few defendants being granted parole; and

WHEREAS, Prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder; and

WHEREAS, Under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony (Section 189 of the Penal Code) to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent; and

WHEREAS, In the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an inherently dangerous felony; and

WHEREAS, Under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder; and

WHEREAS, It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felons action, especially when such conduct was not agreed upon; and

WHEREAS, Criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony murder theory inconsistent with basic principles of law and equity; and

WHEREAS, In California, to be liable for special circumstance felony murder and sentenced to death or to life without the possibility of parole, pursuant to Section 190.2 of the Penal Code, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life; (see People v. Banks (2015) 61 Cal.4th 788); and

WHEREAS, The California Supreme Court in the Banks decision stated that imposing these two statutory additional requirementsrequired to impose either life without the possibility of parole or a death sentencecomports with the United States Supreme Court Eighth Amendment jurisprudence proscribing cruel and unusual punishment; and

WHEREAS, In cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice; and

WHEREAS, In California, under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony; and

WHEREAS, Both Hawaii and Kentucky eradicated the practice by statute and Michigan abrogated the felony-murder rule through case law; and

WHEREAS, The Michigan 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 (People v. Aaron (1980) 299 N.W. 2d 304); and

WHEREAS, The due process clause found in both the Fourteenth and Fifth amendments to the United States Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime in order to convict the accused. This should hold true for felony murder cases, but the doctrine of felony murder circumvents this important principle and allows for conviction and punishment to be the same as for those who committed a murder with malice aforethought; and

WHEREAS, Felony murder was conceived in England in the 1700s and brought to the United States in the early 1800s. After much criticism from the courts in England due to the disproportionality of sentencing individuals who had no malice or intent to kill the same as perpetrators of the fatal act, Parliament abolished the felony-murder rule in 1957; and

WHEREAS, The United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule; and

WHEREAS, In addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the natural and probable consequences doctrine, which also results in greater punishment for lesser culpability; and

WHEREAS, In California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense (People v. Villa (1957) 156 Cal.App.2d 128); and

WHEREAS, An aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that naturally and probably results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting (People v. Medina (2009) 46 Cal.4th 913); resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act; and

WHEREAS, As stated by Justice Goodwin Liu in People v. Cruz-Santos, this leads to overbroad application: At its essence, the natural and probable consequences doctrine imposes liability on the basis of negligence layered on top of a defendants culpability for aiding and abetting a target offense. (See People v. Chiu, (2014) 59 Cal.4th 155 at p. 164 [because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. ].) Although reasonable foreseeability can be a legitimate basis for assigning culpability, courts and commentators have long observed that the concept is susceptible to overbroad application. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 668 [there are clear judicial days on which a court can foresee forever]; Goldberg v. Housing Authority of City of Newark (N.J. 1962) 186 A.2d 291, 293 [Everyone can foresee the commission of crime virtually anywhere and at any time.]; Guthrie et al. (2001) Inside the Judicial Mind, 86 Cornell L.Rev. 777, 799 [Hindsight vision is 20/20. People overstate their own ability to have predicted the past and believe that others should have been able to predict events better than was possible. Psychologists call this tendency for people to overestimate the predictability of past events the hindsight bias. (fns. omitted)]; Rachlinski (1998) A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L.Rev. 571, 571 [Nothing is so easy as to be wise after the event. (fn. omitted, quoting Cornman v. The Eastern Counties Railway Co. (Exch. 1859) 157 Eng. Rep. 1050, 1052)].); and

WHEREAS, It is the proper role of trial courts to screen out cases in which the concept of foreseeability cannot bridge the gap between a defendants culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense. This judicial check serves to ensure that natural and probable consequences liabilitya judge made doctrine in tension with the usual mens rea requirement of the criminal lawis kept consistent with reasonable concepts of culpability. People v. Chiu (2014) 59 Cal.4th 155, 165; and

WHEREAS, It can be cruel and unusual punishment to not assess individual liability for nonperpetrators of the fatal act or in nonhomicide matters the criminal charge resulting in prosecution and impute culpability for anothers bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

SENATE THIRD READING

STR Bill Id:

Author:(Skinner)

As Amended Ver:

Majority vote

SENATE VOTE: 30-5

SUMMARY: Recognizes the need for statutory changes to the felony-murder rule to more equitably sentence offenders in accordance with their involvement in the crime. Specifically, this resolution:

1. States that, according to the California Department of Corrections and Rehabilitation (CDCR) Internet Web site, California continues to house inmates in numbers beyond its maximum capacity and at an average of 130% of capacity.
2. States that it costs taxpayers $70,836 annually to incarcerate an inmate at CDCR.
3. States that it is a bedrock principle of law and equity that a person should be punished for his or her actions according to his or her own level of individual culpability.
4. States that reform is needed to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under a "natural and probable consequences" doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding.
5. States that in California, defendants in felony murder cases are not judged based on their level of intention or culpability, but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act.
6. States that prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder.
7. States that under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent.
8. States that in the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an "inherently dangerous" felony.
9. States that under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder.
10. States that it is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felon's action, especially when such conduct was not agreed upon.
11. States that criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony-murder theory inconsistent with basic principles of law and equity.
12. States that to be liable for special circumstance felony murder in California, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life.
13. States that in cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice.
14. States that under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony.
15. States that Hawaii and Kentucky eliminated felony murder by statute and Michigan abrogated the felony-murder rule through case law.
16. States that the United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule.
17. States that in addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the "natural and probable" consequences doctrine, which also results in greater punishment for lesser culpability.
18. States that in California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense.
19. States that defendants charged and convicted under felony murder are subject to the same sentencing as the actual perpetrator of the murder, even if their actual involvement was limited to a lesser crime, judges and jurors are not allowed to apportion degrees of culpability.
20. States that good public policy dictates that after conviction, judges or jurors should be given the opportunity to apportion degrees of culpability; similar to the method currently used for serious felonies. In this way a defendant may receive a more appropriate sentence for the crime committed.
21. States that an aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that "naturally and probably" results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting; resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act.
22. States that it can be cruel and unusual punishment to not assess individual liability for non-perpetrators of the fatal act or in non-homicide matters the criminal charge resulting in prosecution and impute culpability for another's bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case.
23. Resolves that the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.
24. Resolves that the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

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, or any act punishable under Penal Code Sections 206, 286, 288, 288a, or 289, 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 of specified circumstances is found to be true including 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, the following felonies:
   1. Robbery;
   2. Kidnapping;
   3. Rape;
   4. Sodomy;
   5. Lewd or lascivious act upon a child under the age of 14 years;
   6. Oral copulation;
   7. Burglary in the first or second degree;
   8. Arson;
   9. Train wrecking;
   10. Mayhem;
   11. Rape by instrument; and,
   12. Carjacking.
3. 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.

FISCAL EFFECT: None.

COMMENTS: According to the author, "SCR 48 is a resolution intended to state the Legislature's focus on reforming the felony murder rule.

"Under the felony murder rule, a person is criminally liable if they participate in any portion of the felony including preparation or fleeting from the scene. This means that even if a person was unaware that a killing would take place, or if the killing was unintentional, accidental, or negligent they can be charged with first degree murder.

"It is time California acknowledges that this law can be applied unfairly and in some cases has caused disproportionately long sentences for people who did not commit murder."

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001144

Date of Hearing: July 11, 2017

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SCR 48

Author:(Skinner) – As Amended Ver:May 11, 2017

SUMMARY: Recognizes the need for statutory changes to the felony-murder rule to more equitably sentence offenders in accordance with their involvement in the crime. Specifically, this resolution:

1. States that, according to the California Department of Corrections and Rehabilitation (CDCR) Web site, California continues to house inmates in numbers beyond its maximum capacity and at an average of 130 percent of capacity.
   
2. States that it costs taxpayers $70,836 annually to incarcerate an inmate at CDCR.
   
3. States that it is a bedrock principle of law and equity that a person should be punished for his or her actions according to his or her own level of individual culpability.
   
4. States that reform is needed to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under a “natural and probable consequences” doctrine so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding.
   
5. States that in California, defendants in felony murder cases are not judged based on their level of intention or culpability, but are sentenced as if they had the intent to kill even if the victim of the underlying felony actually commits the fatal act.
   
6. States that prosecutors must prove beyond a reasonable doubt that a defendant acted with premeditation and deliberation and expressly intended to kill the victim in order for the defendant to be convicted of first-degree murder.
   
7. States that under the felony-murder rule, criminal liability for a homicide is significantly broadened; and a prosecutor only needs to prove that the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily enumerated felony to secure a first-degree murder conviction even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent.
   
8. States that in the case of second-degree felony murder, the prosecutor only has to prove that the defendant intended to commit an “inherently dangerous” felony.
   
9. States that under the felony-murder rule, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder or second-degree murder.
   
10. States that it is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen results of another felon’s action, especially when such conduct was not agreed upon.
    
11. States that criminal liability and sentencing should comport with individual culpability, thereby making conviction under a felony-murder theory inconsistent with basic principles of law and equity.
    
12. States that to be liable for special circumstance felony murder in California, the prosecution must prove the defendant intended to commit the underlying felony and also prove two additional elements: that the person who did not commit the homicidal act acted as a major participant in the felony and acted with reckless indifference to human life.
    
13. States that in cases not prosecuted under a felony-murder theory, in order to convict a defendant of first-degree murder, a jury has to find beyond a reasonable doubt that a person acted with intentional malice.
    
14. States that under the felony-murder rule, the prosecution does not have to prove that a killing was intended and need only prove that a defendant intended to commit the underlying felony or intended to commit an inherently dangerous felony.
    
15. States that Hawaii and Kentucky eliminated felony murder by statute and Michigan abrogated the felony-murder rule through case law.
    
16. States that the United States is one of the only countries in the world that still allows prosecutions under the felony-murder rule.
    
17. States that in addition to the disproportionate sentencing that occurs in felony murder cases, there is need for additional reform when addressing aider and abettor liability for other criminal matters, specifically the “natural and probable” consequences doctrine, which also results in greater punishment for lesser culpability.
    
18. States that in California, people who commit a felony are not sentenced according to their individual level of culpability, but all participants, even those who indirectly encouraged the commission of a felony, even by words or gestures, may be held to the same degree of culpability as the person who committed the offense.
    
19. States that defendants charged and convicted under felony murder are subject to the same sentencing as the actual perpetrator of the murder, even if their actual involvement was limited to a lesser crime, judges and jurors are not allowed to apportion degrees of culpability.
    
20. States that good public policy dictates that after conviction, judges or jurors should be given the opportunity to apportion degrees of culpability; similar to the method currently used for serious felonies. In this way a defendant may receive a more appropriate sentence for the crime committed.
    
21. States that an aider and abettor is criminally responsible not only for the crime he or she intends, but also for any crime that “naturally and probably” results from his or her intended crime; the result of this doctrine is that all participants in a fistfight can be held liable for first-degree murder when only one defendant commits a murder, notwithstanding the fact that the other participants did not know the defendant was armed, the killing occurred after the fistfight ended, and the participants did not aid or abet the shooting; resulting in individuals lacking the mens rea and culpability for murder being punished as if they were the ones who committed the fatal act.
    
22. States that it can be cruel and unusual punishment to not assess individual liability for non-perpetrators of the fatal act or in non-homicide matters the criminal charge resulting in prosecution and impute culpability for another’s bad act, thereby imposing lengthy sentences that are disproportionate to the conduct in the underlying case.
    
23. Resolves that the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.
    
24. Resolves that the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

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, or any act punishable under Section 206, 286, 288, 288a, or 289, 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 of specified circumstances is found to be true including 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, the following felonies:
   
   1. Robbery;
      
   2. Kidnapping;
      
   3. Rape;
      
   4. Sodomy;
      
   5. Lewd or lascivious act upon a child under the age of 14 years;
      
   6. Oral copulation;
      
   7. Burglary in the first or second degree;
      
   8. Arson;
      
   9. Train wrecking;
      
   10. Mayhem;
       
   11. Rape by instrument; and,
       
   12. Carjacking. (Penal Code §190.2, subd. (a)(17).)
       
3. 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.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SCR 48 is a resolution intended to state the Legislature's focus on reforming the felony murder rule.
   
   “Under the felony murder rule, a person is criminally liable if they participate in any portion of the felony including preparation or fleeting from the scene. This means that even if a person was unaware that a killing would take place, or if the killing was unintentional, accidental, or negligent they can be charged with first degree murder.
   
   “It is time California acknowledges that this law can be applied unfairly and in some cases has caused disproportionately long sentences for people who did not commit murder.”
   
2. Argument in Support: According to #cut50, the Sponsor of this resolution, “The Felony Murder Rule is a doctrine pursuant to which individuals are convicted for murder as a result of committing an enumerated felony in which another person dies, even if the individual convicted neither killed nor intended to kill another. While it is paramount to hold accountable those who endanger public safety, particularly those who commit the most serious offenses, it is also critical that the punishments meted out are proportional to a person’s culpability for an offense. The Felony Murder Rule takes us far away from this principle of justice and fairness. It is time for California to follow Michigan, Kentucky, Hawaii and Ohio, to move away from this inequity in our criminal justice system. SRC 48 is smart-on-crime and fiscally wise for California. This resolution recognizes the need to differentiate the non-killer in the crime from the person who is personally responsible for committing murder and holding them accountable for their individual culpability….
   
   “It is important for the California legislature to acknowledge the disproportionality of this law. We must limit first and second-degree felony-murder liability only to those defendants who committed the killing or acted with an intent to aid and abet the homicidal act. Aiders and abettors in the commission or attempted commission, or flight from the commission or attempted commission of the underlying felony, should no longer be convicted of first or second-degree murder under the felony murder theory. However, aiders and abettors may still be convicted of first or second-degree murder if it is proven beyond a reasonable doubt that the non-killer acted with either express or implied malice as defined in Penal Code § 187. That is, the non-killer must either “manifest a deliberate intention unlawfully to take away the life of a fellow creature” or act with implied malice, as defined by Penal Code § 188.
   
   “Punishment must reflect the crime of on an individual basis. We should not condemn a person to a life sentence for a murder they did not commit nor intended to commit. There are many instances where there was no knowledge of a crime occurring and such instances threaten the very foundation of our legal system and undermine the mens rea requirement, i.e. the intention or knowledge of a wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
   
   “In California, there is only a 17% chance of being granted parole through the parole board, for non-killers sentenced under the felony murder rule. In order to be found suitable for parole, they must take full responsibility for the murder and demonstrate exemplary behavior while in prison. This arbitrary regulation puts people in a difficult position of having to take responsibility for a murder which they did not participate in, inflict or premeditate. This isn’t conducive to rehabilitation.
   
   “We must encourage rehabilitation to reduce crime and make our communities safer.”
   

REGISTERED SUPPORT / OPPOSITION:

Support

#cut50 (Sponsor)
Advocates Delivering Love
American Civil Liberties Union
Anti-Recidivism Coalition

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Families Against Solitary Confinement

California Prison Focus

Center on Juvenile and Criminal Justice

Communities United for Restorative Youth Justice

Courage Campaign

Ella Baker Center for Human Rights

Empress Magazine

Fair Chance Project

Family Unity Network

Felony Murder Elimination Project

Friends Committee on Legislation of California

Homeboy Industries

Lifers With Optimistic Progress

Moms of Black Boys United for Social Change

Puritan Evangelical Church of America
San Francisco Public Defender

Silicon Valley De-Bug

Youth Justice Coalition

126 Private individuals

Opposition

None

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SCR 48

Author:

:

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/13/17

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

NOES: Stone

SUBJECT:

SOURCE: #cut50

DIGEST:

This resolution recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

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, or any act punishable under Section 206, 286, 288, 288a, or 289, 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. (Penal Code Section 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 of specified circumstances is found to be true including: 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, the following felonies:
   1. Robbery in violation of Section 211 or 212.5.
   2. Kidnapping in violation of Section 207, 209, or 209.5.
   3. Rape in violation of Section 261.
   4. Sodomy in violation of Section 286.
   5. The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.
   6. Oral copulation in violation of Section 288a.
   7. Burglary in the first or second degree in violation of Section 460.
   8. Arson in violation of subdivision (b) of Section 451.
   9. Train wrecking in violation of Section 219.
   10. Mayhem in violation of Section 203.
   11. Rape by instrument in violation of Section 289.
   12. Carjacking, as defined in Section 215.
   13. To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder. (Penal Code §190.2)

This bill:

1. Makes a number of declarations regarding the capacity of CDCR, the cost of incarcerations, the principle of sentencing a person according to his or her culpability, the fact that the felony murder rule only requires a person be shown to have participated in the commission of the felony and does not require the intent to kill anyone and related declarations.
2. Resolves that the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

Background

According to the author:

The California prison population continues to increase even with the implementation of some important reforms such as Proposition 57. According to the CDCR website, California continues to house inmates in numbers beyond its maximum capacity at an average of 130%. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 %, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions.

Voters have shown that they support criminal justice reform by overwhelmingly passing Proposition 47 in 2014 and Proposition 57 in 2016. There is a continued need to focus our dollars on keeping people in prison who are dangerous, and giving relief to those who are given disproportionate sentences. Currently in California, a large number of people are serving life sentences for first degree murder, when in actuality, they did not commit or participate in the murder.

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 commissioner of the felony is charged with murder. The United States is the only country in the world to use the felony murder rule. Some states are going in the right direction, such as 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 broadened. 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.

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.

For example, in 2008 in Illinois, three teenagers broke into a home while two friends waited outside. A person inside the home, surprised by the burglars, shot and killed one of the boys. While the shooter wasn't prosecuted for the killing because he acted in self-defense, two of the teenage boys were charged with first-degree murder. Both boys took a plea deal as in which they pleaded guilty to involuntary manslaughter and burglary, and were both sentenced to 30 years in prison. There are many more cases that can be quoted. One of the boys, now a grown man was just granted a gubernatorial commutation.

In California, there is only a 17% chance of being granted parole through the parole board, for the non-killers sentenced under the felony murder rule, in order to be found suitable for release, they must take full responsibility for the murder and will be denied if cannot. This arbitrary regulation puts people in a difficult position of having to take responsibility for a murder which they did not participate in, inflict or premeditate and sometimes have knowledge it had even occurred until they were told at the time of their arrest.

It has been shown that the felony murder rule does not deter crime. In a 2002 study by Anup Malani from the University of Virginia, it showed that the felony murder rule did not decrease the rates of felony murder in the state.

The felony murder rule threatens the very foundation of our legal philosophy—the mens rea requirement and has no right to remain in our legal system. And a law that crudely equates unarmed robbers with premeditating murderers, throwing them both into the same, overflowing prison cell, certainly has no role in our criminal justice system.

It is important for the legislature to acknowledge the unfairness of this law and how it has caused disproportionately long sentences for people who did not commit murder. We must limit first and second-degree felony-murder liability to only those defendants who actually did the killing or acted with a premeditated intent to aid and abet the homicidal act. Aiders and abettors in the commission, attempted commission, or flight from the commission or attempted commission of the underlying felony should no longer be convicted of first or second-degree under a felony murder theory. However, aiders and abettors may still be convicted of first or second-degree murder if it is proven beyond a reasonable doubt that the non-killer acted with either express or implied malice as defined in Penal Code § 187.

That is, the non-killer must either “manifest a deliberate intention unlawfully to take away the life of a fellow creature” or act with implied malice, as defined by Penal Code § 188.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/13/17)

#cut50 (source)

American Civil Liberties Union

Advocates Delivering Love

Communities United for Restorative Youth Justice

Courage Campaign

Ella Baker Center for Human Rights

Empress Magazine

Fair Chance Project

Felony Murder Elimination Project

Friends Committee on Legislation of California

Homeboy Industries

Lifers With Optimistic Progress

Moms of Black Boys (M.O.B.B.) United for Social Change

Puritan Evangelical Church of America

Silicon Valley De-Bug

Youth Justice Coalition

100+ Individuals

OPPOSITION: (Verified 6/13/17)

None received

ARGUMENTS IN SUPPORT: The sponsor #cut50 states:

The Felony Murder Rule is a doctrine pursuant to which individuals are convicted for murder as a result of committing an enumerated felony in which another person dies, even if the individual convicted neither killed nor intended to kill another. While it is paramount to hold accountable those who endanger public safety, particularly those who commit the most serious offenses, it is also critical that the punishments meted out are proportional to a person’s culpability for an offense. The Felony Murder Rule takes us far away from this principle of justice and fairness. It is time for California to follow Michigan, Kentucky, Hawaii and Ohio, to move away from this inequity in our criminal justice system. SRC 48 is smart-on-crime and fiscally wise for California. This resolution recognizes the need to differentiate the non-killer in the crime from the person who is personally responsible for committing murder and holding them accountable for their individual culpability….

It is important for the California legislature to acknowledge the disproportionality of this law. We must limit first and second-degree felony-murder liability only to those defendants who committed the killing or acted with an intent to aid and abet the homicidal act. Aiders and abettors in the commission or attempted commission, or flight from the commission or attempted commission of the underlying felony, should no longer be convicted of first or second-degree murder under the felony murder theory. However, aiders and abettors may still be convicted of first or second-degree murder if it is proven beyond a reasonable doubt that the non-killer acted with either express or implied malice as defined in Penal Code § 187. That is, the non-killer must either “manifest a deliberate intention unlawfully to take away the life of a fellow creature” or act with implied malice, as defined by Penal Code § 188.

Punishment must reflect the crime of on an individual basis. We should not condemn a person to a life sentence for a murder they did not commit nor intended to commit. There are many instances where there was no knowledge of a crime occurring and such instances threaten the very foundation of our legal system and undermine the mens rea requirement, i.e. the intention or knowledge of a wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

In California, there is only a 17% chance of being granted parole through the parole board, for non-killers sentenced under the felony murder rule. In order to be found suitable for parole, they must take full responsibility for the murder and demonstrate exemplary behavior while in prison. This arbitrary regulation puts people in a difficult position of having to take responsibility for a murder which they did not participate in, inflict or premeditate. This isn’t conducive to rehabilitation.

We must encourage rehabilitation to reduce crime and make our communities safer.

Prepared by:

6/14/17 15:44:52

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SCR 48 Hearing Date: June 13, 2017

Subject: Criminal Sentencing

HISTORY

Source: #cut50

Prior Legislation: None

Support: Ella Baker Center for Human Rights; Felony Murder Elimination Project;

Lifers with Optimistic Progress; Silicon Valley De-Bug; Youth Justice Coalition; several individuals

Opposition: None known

PURPOSE

The purpose of this resolution is to recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

Existing law 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, or any act punishable under Section 206, 286, 288, 288a, or 289, 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. (Penal Code Section 189)

Existing law 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 of specified circumstances is found to be true including:

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, the following felonies:

(A) Robbery in violation of Section 211 or 212.5.

(B) Kidnapping in violation of Section 207, 209, or 209.5.

(C) Rape in violation of Section 261.

(D) Sodomy in violation of Section 286.

(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

(F) Oral copulation in violation of Section 288a.

(G) Burglary in the first or second degree in violation of Section 460.

(H) Arson in violation of subdivision (b) of Section 451.

(I) Train wrecking in violation of Section 219.

(J) Mayhem in violation of Section 203.

(K) Rape by instrument in violation of Section 289.

(L) Carjacking, as defined in Section 215.

(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder. (Penal Code §190.2)

This bill makes a number of declarations regarding the capacity of CDCR, the cost of incarcerations, the principle of sentencing a person according to his or her culpability, the fact that the felony murder rule only requires a person be shown to have participated in the commission of the felony and does not require the intent to kill anyone and related declarations.

This bill resolves that the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.

COMMENTS

1. Need for This Bill

According to the author:

The California prison population continues to increase even with the implementation of some important reforms such as Proposition 57. According to the CDCR website, California continues to house inmates in numbers beyond its maximum capacity at an average of 130%. In some institutions, such as Wasco State Prison, the inmate population is at 169.7 %, housing well over 2,000 people over the designed maximum capacity. Overpopulation has been the main contributing factor to inhumane and poor living conditions.

Voters have shown that they support criminal justice reform by overwhelmingly passing Proposition 47 in 2014 and Proposition 57 in 2016. There is a continued need to focus our dollars on keeping people in prison who are dangerous, and giving relief to those who are given disproportionate sentences. Currently in California, a large number of people are serving life sentences for first degree murder, when in actuality, they did not commit or participate in the murder.

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 commissioner of the felony is charged with murder. The United States is the only country in the world to use the felony murder rule. Some states are going in the right direction, such as 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 broadened. 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.

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.

For example, in 2008 in Illinois, three teenagers broke into a home while two friends waited outside. A person inside the home, surprised by the burglars, shot and killed one of the boys. While the shooter wasn't prosecuted for the killing because he acted in self-defense, two of the teenage boys were charged with first-degree murder. Both boys took a plea deal as in which they pleaded guilty to involuntary manslaughter and burglary, and were both sentenced to 30 years in prison. There are many more cases that can be quoted. One of the boys, now a grown man was just granted a gubernatorial commutation.

In California, there is only a 17% chance of being granted parole through the parole board, for the non-killers sentenced under the felony murder rule, in order to be found suitable for release, they must take full responsibility for the murder and will be denied if cannot. This arbitrary regulation puts people in a difficult position of having to take responsibility for a murder which they did not participate in, inflict or premeditate and sometimes have knowledge it had even occurred until they were told at the time of their arrest.

It has been shown that the felony murder rule does not deter crime. In a 2002 study by Anup Malani from the University of Virginia, it showed that the felony murder rule did not decrease the rates of felony murder in the state.

The felony murder rule threatens the very foundation of our legal philosophy—the mens rea requirement and has no right to remain in our legal system. And a law that crudely equates unarmed robbers with premeditating murderers, throwing them both into the same, overflowing prison cell, certainly has no role in our criminal justice system.

It is important for the legislature to acknowledge the unfairness of this law and how it has caused disproportionately long sentences for people who did not commit murder. We must limit first and second-degree felony-murder liability to only those defendants who actually did the killing or acted with a premeditated intent to aid and abet the homicidal act. Aiders and abettors in the commission, attempted commission, or flight from the commission or attempted commission of the underlying felony should no longer be convicted of first or second-degree under a felony murder theory. However, aiders and abettors may still be convicted of first or second-degree murder if it is proven beyond a reasonable doubt that the non-killer acted with either express or implied malice as defined in Penal Code § 187.

That is, the non-killer must either “manifest a deliberate intention unlawfully to take away the life of a fellow creature” or act with implied malice, as defined by Penal Code § 188.

2. Need to make Changes to More Equitably Sentence Offenders

This Resolution states that the Legislature recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime and makes a number of statements supporting that resolution.

3. Argument in Support

The sponsor #cut50 states:

The Felony Murder Rule is a doctrine pursuant to which individuals are convicted for murder as a result of committing an enumerated felony in which another person dies, even if the individual convicted neither killed nor intended to kill another. While it is paramount to hold accountable those who endanger public safety, particularly those who commit the most serious offenses, it is also critical that the punishments meted out are proportional to a person’s culpability for an offense. The Felony Murder Rule takes us far away from this principle of justice and fairness. It is time for California to follow Michigan, Kentucky, Hawaii and Ohio, to move away from this inequity in our criminal justice system. SRC 48 is smart-on-crime and fiscally wise for California. This resolution recognizes the need to differentiate the non-killer in the crime from the person who is personally responsible for committing murder and holding them accountable for their individual culpability….

It is important for the California legislature to acknowledge the disproportionality of this law. We must limit first and second-degree felony-murder liability only to those defendants who committed the killing or acted with an intent to aid and abet the homicidal act. Aiders and abettors in the commission or attempted commission, or flight from the commission or attempted commission of the underlying felony, should no longer be convicted of first or second-degree murder under the felony murder theory. However, aiders and abettors may still be convicted of first or second-degree murder if it is proven beyond a reasonable doubt that the non-killer acted with either express or implied malice as defined in Penal Code § 187. That is, the non-killer must either “manifest a deliberate intention unlawfully to take away the life of a fellow creature” or act with implied malice, as defined by Penal Code § 188.

Punishment must reflect the crime of on an individual basis. We should not condemn a person to a life sentence for a murder they did not commit nor intended to commit. There are many instances where there was no knowledge of a crime occurring and such instances threaten the very foundation of our legal system and undermine the mens rea requirement, i.e. the intention or knowledge of a wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

In California, there is only a 17% chance of being granted parole through the parole board, for non-killers sentenced under the felony murder rule. In order to be found suitable for parole, they must take full responsibility for the murder and demonstrate exemplary behavior while in prison. This arbitrary regulation puts people in a difficult position of having to take responsibility for a murder which they did not participate in, inflict or premeditate. This isn’t conducive to rehabilitation.

We must encourage rehabilitation to reduce crime and make our communities safer.

-- END –