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In this first of a two-part series, I examine how California’s felony-murder law radically changed as of January 1, 2019, and how those convicted of first-degree murder (or in some cases even second degree) under that theory, or under the “natural and probable consequences” theory, have successfully petitioned to have those convictions vacated.
In part two, I explain in detail how you can do the same for your own pre-2019 felony-murder conviction, as well as what defenses work against felony-murder charges under the new law.
In the fall of 2018, then-Governor Jerry Brown signed California Senate Bill number 1437 (SB-1437), thereby making it a law which would officially be enacted on January 1, 2019. This new law was primarily codified at the now-revised California Penal Code section 189(e).
This legislation has proven to be one of the most far-reaching criminal justice reforms to affect the state in decades. Specifically, it retroactively affects all pre-2019 murder convictions that were explicitly or implicitly obtained – either through trial or plea — under the draconian felony-murder rule. The new also prospectively changed what murder crimes would fall under the new felony-murder rule going forward.
Prior to this seismic prosecutorial shift (which, not surprisingly, was vehemently opposed by every DA’s Office in the entire state), you could be convicted of murder (typically, first degree) even if you didn’t actually kill or even intend to kill anyone.
You could also be convicted even if you weren’t a major participant in the underlying felony (such as a robbery). Indeed, this law was so archaic that you could have received a life sentence or technically even the death penalty if your accomplice was killed by, say, a police officer during the commission of that crime.
But now, thanks to the new law, a felony-murder offense applies only to the following situations:
Again, because this law works retroactively, individuals convicted under that old law could now file motions with their sentencing court to get their convictions tossed, and possibly even secure their immediate release from prison. Indeed, I know of at least one case where the successful petitioner served twenty-five years before having his conviction vacated.
First-Degree Felony Murder
For forty years (from January 1, 1979 to January 1, 2019), to convict you of First-Degree Murder under California Penal Code section 190, a prosecutor no longer had to prove that you specifically intended to murder the victim.
Instead, the deputy district attorney was only required to establish beyond a reasonable doubt that you killed the victim during the commission of a particularly dangerous felony, as set forth in Penal Code section 189, or that you otherwise assisted the killer in the commission or attempted commission of that crime felony.
See People v. Dillon (1983) 34 Cal.3d 441, 450, 475 (wherein the California Supreme Court held that “actual malice” need not be proved for first-degree murder if the killing occurred during the commission of a designated felony).
Or, as the California Court of Appeal elaborated 11 years later, the felony-murder rule removed the elements of malice and premeditation. In other words, only “the specific intent to commit the particular underlying felony” was required for a first-degree murder conviction. See People v. Chavez (2004) 118 Cal.App.4th 379, 385.
Second-Degree Felony Murder (under California Penal Code section 192(a)&(b))
In 2004, the California Supreme Court clarified that the felony-murder rule applied to both First-Degree Murder and Second-Degree Murder, which are both defined at Penal Code section 190, and explicitly held that the latter included any killings committed during “the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in P.C. § 189.” See People v. Robertson (2004) 34 Cal.4th 156, 164 (emphasis added).
See also People v. Chun (2009) 45 Cal.4th 1172, 1182 (stating that although second-degree felony murder was not explicitly defined in Penal Code section 189, it was created through opinions rendered by the California appellate and Supreme Courts).
The Doctrine of “Natural and Probable Consequences”
Another type of second-degree felony-murder for certain criminal accomplices is known as the doctrine of natural and probable consequences. Under this theory, you would be guilty not only for the underlying felony (whether completed or not), but also “for any other offense that was a natural and probable consequence of the crime aided and abetted.”
Accordingly, if you, say, aided and abetted your cohort during an intentional barroom brawl, during which he stabbed and killed the victim, you would also be guilty of (Second-Degree) Murder under Penal Code section 192(a)&(b) because the killing was considered to be “a natural and probable consequence of the intended assault.”
See People v. McCoy (2001) 25 Cal.4th 1111, 1117.
In other words, under that doctrine, you could have been convicted of second-degree felony-murder “even where the target offense is not an inherently dangerous felony.” See People v. Culuko (2000) 78 Cal.App.4th 307, 322.
Specific Felonies Covered Under the New Felony-Murder Law
As amended by Pen. Code § 189(a), the following are the inherently dangerous felonies that can result in a First-Degree Murder conviction under Pen. Code § 190 conviction resulting in possible sentences of life without parole or even death-penalty sentences:
Legislative History for SB-1437 (“Accomplice Liability for Felony Murder”)
The 1978 Passage of Proposition 7
The previous felony-murder law – which, again, included first-degree murder prosecutions for non-killing accomplices who participated in the execution or attempted execution of certain enumerated violent felonies — was initially presented to and approved by California voters as Prop. 7 (also known as the “Death Penalty Act”) on November 7, 1978 as part of that year’s state-wide electoral process.
Again, that statute significantly exacerbated prison terms for both degrees of murder, increased the number of special-circumstances scenarios which could result in a death sentence or life with no parole, and also increased the number of aggravating-circumstances scenarios which could result in a life term (either with or without potential parole). See ballotpedia.org.
Introduction and Passage of State Senate Bill 1437
It took exactly four decades for California lawmakers to finally follow state voters’ long-gestated desire for criminal justice reform in regard to Prop. 7. Specifically, on February 16, 2018, SB-1437 was first proposed and read before a state Senate subcommittee.
Less than six weeks later, on April 25th, the powerful Senate Committee on Public Safety initially approved the bill, which, after multiple revisions, then steadily made its way up the chain for final presentation to the Governor for approval on September 7th. Twenty-three days later, Gov. Brown signed it into law. See leginfo.legislature.ca.gov.
By doing so, Gov. Brown explicitly agreed that those individuals unfortunate enough to have been convicted under the prior felony-murder law but who were now eligible for relief under the new law, should have a vacature process for those convictions.
Further, the new law would allow some of those individuals to be re-sentenced for any lesser felony charges that were not adjudicated at their original trial or as part of their original guilty or no-contest plea. However, for the vast majority of those eligible for re-sentencing, because of the many years in prison they had already served for their murder conviction, they would also be eligible for immediate release. See leginfo.legislature.ca.gov.
The Main Components of the New Felony-Murder Law
The basic elements of SB-1437 are as follows:
Accordingly, since January 1, 2019, you can only be convicted of first-degree felony-murder under the following circumstances (none of which require “malice aforethought”, as discussed below):
All other types of first-degree murder simply require that the prosecutor prove that you had “malice aforethought” – i.e., the specific intent to murder the victim – coupled with deliberation/premeditation, in order to secure your conviction. See Penal Code section 188.
In other words, “implied malice” is found when you commit or assist with the commission (or attempted commission) of “a felony inherently dangerous to life,” and where the victim’s death results from “an act, the natural consequences of which are dangerous to life.”
See People v. Watson (1981) 30 Cal. 3d 290, 300.
Fortunately, it appears that the new law has eliminated second-degree felony-murder, which doesn’t appear to full under any of the P.C. § 189(e) categories.
In other words, unlike prior to 2019, simply participating in an inherently dangerous felony that results in an inadvertent death is no longer sufficient to secure your murder conviction (including for Second-Degree Murder under Pen. Code § 192(a)&(b)). Thus, implied malice can no longer be merely implied – it must be explicitly proven (e.g., your desire to kill).
Indeed, the new law amended Pen. Code § 188 to include subsection (a)(3), which explicitly states, “Malice shall not be imputed to a person based solely on his or her participation in a crime.”
The only exception applies when you actively participated in an inherently dangerous felony wherein a police officer was killed while acting in his or her capacity as such, and you knew or should have known the same. P.C. § 189(f). In that particular situation, malice will always be implied without the prosecutor having to prove any other allegation.
Not surprisingly in the least, virtually every District Attorney’s Office in the state’s major counties appealed the new law after it was enacted. The appellant would do so either immediately after a petitioner filed his motion for vacature and re-sentencing – and, therefore, before the trial court ruled on it – or after the trial court granted the petition (but typically before the petitioner was released).
Fortunately, without exception, the appellate courts have unanimously rejected all the appeals and have ruled against the DA’s Offices, holding that the new law was not unconstitutional.
And, of course, the DA’s Offices appealed several of those early unfavorable rulings to the state Supreme Court, which denied to hear them, thereby ratifying the appellate courts’ opinions.
Specifically, on February 19, 2020, the California Supreme Court denied certiorari in regard to a 2019 opinion handed down by the appellate court in the state’s Fourth District, which covers Orange and San Diego Counties.
In that case, the Court of Appeal upheld the constitutionality of the new felony-murder law, thereby clearing the path for potentially thousands of prisoners to have their murder convictions tossed out.
Prior to state Supreme Court’s denial, dozens (if not hundreds) of petitions for vacature and re-sentencing had been placed on hold by the trial courts pending the outcome of the San Diego County DA’s Office’s final appeal to California’s highest court. See sandiegouniontribune.com.
Since that denial, dozens of incarcerated individuals – out of thousands who are eligible – have successfully petitioned their trial courts for vacature and re-sentencing. (One of these success stories is discussed below.)
The following is a sampling of California Court of Appeal decisions which have all upheld the constitutionality of the new felony-murder law:
Neko Wilson of Fresno County is the first person released under the new felony-murder law
In the summer of 2009, a marijuana robbery went bad in Fresno Co. (NorCal), which resulted in husband and wife Sandra and Gary DeBartolo being killed. Neko Wilson (then age twenty-eight) was the getaway driver, but had no idea – much less any intention – that anyone would be harmed, much less murdered.
He was never alleged to have harbored such an intent or to have had any involvement whatsoever in the killings. Instead, he was merely alleged to have helped plan out the robbery. Notwithstanding, he was arrested and charged under the pre-2019 felony-murder rule, with the prosecutor seeking the death penalty.
For some inexplicable reason, he sat in jail awaiting trial for a staggering nine years. But in a story worthy of a Hollywood feature film, during that time, Wilson’s younger brother, Jacque Wilson, went to law school, became a deputy public defender in the San Francisco County Public Defender’s Office (where I clerked while attending Santa Clara University Law School), and lobbied successfully for the state’s new felony-murder law.
After its enactment at the beginning of 2019, and despite the fact that he had not actually been convicted (either via trial or a plea), Jacque petitioned the Fresno Co. superior court for Neko’s immediate release. Fortunately, the judge who was presiding over his case agreed and in October 2019 (less than six months after the new law’s enactment), he was releases.
Specifically, in light of the new law, Neko accepted a guilty plea for robbery with a maximum sentence that was less than the time he had already served. As a result, he was the first defendant in the entire state to go free as a result of SB-1437.
Notably, the first person to actually be re-sentenced under the new law – i.e., out of all the inmates who were currently doing hard time for felony-murder – was Adnan Khan, who was released from San Quentin within weeks of SB-1437’s enactment. At age eighteen, he had participated in a drug rip-off of a pot dealer who was stabbed by Khan’s confederate.