Wednesday, September 5, 2018

HUGE VICTORY FOR LIFERs as SB1437 [Felony Murder rule] waits for the Governor's signature

On 8/31/2018 inmates' families  (and all the advocates for the Bill) can claim a big victory (for  Lifers incarcerated via the old CA Felony Murder rule) --- as Senate Bill 1437 goes to the Governor's desk for signature. Remember: The felony-murder rule is an exception to the normal rules of California murder law. Generally, you cannot be convicted of murder in California unless you acted with "malice aforethought" - which basically means intent to kill, or a reckless disregard for human life.

At this point we are confident that Governor Brown will sign this bill into law, to then be effective January 1, 2019. Governor Brown has done much to reform the Justice system and helped clear out our overcrowded prisons. This would be one more "push" (on reforms) before he exits his position, on his last term as Governor of CA.

This bill is historic --  In California, the felony-murder rule has a statutory history that dates back to 1850. The felony murder rule has been law in California basically since the 1800s; this Bill is changing over 130 years of unjust law.  Under the new bill the first or second-degree murder conviction, which resulted in sentences of 25 to life, 15 to life or life without parole, would be vacated, (UNLESS a peace officer was involved) but be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). It is unclear how the DA will be handling these cases (i.e. petitions).

All those who are involved in a crime that results in a death, regardless of their level of participation, prior knowledge or aforethought, were adjudged to be as culpable as the individual who took the actions resulting in death. The new law requires convictions for murder to require ‘malice aforethought’ in involvement the crime and notes such malice cannot be imputed simply by participation in criminal acts that may be part of the crime.

SB 1437 does not abolish the felony murder rule. Rather, it limits a first-degree murder sentence to those who 1) actually killed; 2) aided and abetted the killing with the intent to cause death; or 3) acted as a major participant and with reckless disregard to human life during the course of the felony.


RELIEF: 

The relief will be available via a petition to their sentencing court(s) asking for consideration for recall of sentence on the murder conviction. Those filing such petitions will most likely be eligible for counsel, via the services of the county’s public defenders. If such petitions were successful and the murder conviction and resulting sentence was vacated, the court could still sentence the individual for participation in the underlying crime as well as mandating a term of parole supervision for 3 years following completion of any assessed sentence.

One can be ready and prepared ahead of time for this law but.....Any petitions filed with the Court cannot be considered valid, if filed before January 1, 2019. It is our opinion that a WELL CRAFTED petition with the assistance of a private attorney, will be more successful then just filing a Declaration that states one wants to be re sentenced.  Be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). In our opinion, if a Plea bargain was done (vs a trial - on the commitment offense) then it will be that much more difficult for the Court to properly re-sentence an individual, without having an abundance of evidence in front of the Court to make a proper ruling on the level of involvement in the underlying murder. We anticipate possible Court hearings (mini trials) to flush out some of the facts of the underlying murder case, especially if there is no Court of Appeal or "trial" record to assist the court.

Stay Tune..... it is just a guess at this time on HOW it will all unfold, as the rubber meets the road......


TRIVIA: In Canada;
In Canada, it has been held to be unconstitutional, as breaching the principles of fundamental justice.

The Canadian Charter of Rights and Freedoms states that a conviction for murder requires proof beyond a reasonable doubt of a subjective foresight of death. (i.e. INTENT TO KILL must be present)


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Thanks to the LSA newsletter for 
plucking out the relevant portions of the language of the bill as quoted below:

“It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”


In order to achieve redress of sentence individuals must:


 “170.95. (a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.


(2) The petitioner was convicted of first degree or second-degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second-degree murder.


(3) The petitioner could not be convicted of first or second-degree murder because of changes to Section 188 or 189 made effective January 1, 2019.


(b) (1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition.”


“At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.


“A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to three years following the completion of the sentence.”


It is up to the petitioner (prisoner seeking relief) to prove the prima facie case (at first look, or first evidence) that he or she comes under the guidelines of the bill and request counsel, if desired. It is also important to note that this bill will not wholly absolve many individuals from participation in a crime, such as robbery or assault that resulted in a death. While it may vacate the murder conviction, the courts are free to sentence the petitioner on the underlying or residual crime, and it is conceivable that those who may find relief from a murder conviction and be re-sentenced for the other offenses may still find themselves incarcerated, albeit probably with an end in sight.


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