Wednesday, August 7, 2019

Vacation - JULY - more to come

Our law office will not be posting a JULY Blog because we have been super busy.
Our fingers also needed a little rest from being an Editor beside being the Lead Attorney at our law office.

Please see out August BLOG on SB1437

SB1437 (Felony-Murder) Constitutional or Not!

 Across the state there has been a battle over the constitutionality of SB 1437.  The bill became law on January 1, and it eliminates the possibility of charging people with first degree murder in criminal actions that resulted in death, but whose actions did not constitute actual or major participation in the act of killing the individual.

The new law was specifically intended to be retroactive, meaning people convicted under a felony-to-murder theory could apply for resentencing.  But prosecutors, for obvious reasons, have opposed it and have filed challenges to its constitutionality.

Some Judges struck down the SB1437 Petition (for re-sentencing) as “unconstitutional,” because the re-sentencing provision of section 1170.95, SB 1437 explicitly takes away from the punitive consequences of persons sentenced under the provisions of Proposition 7. NOTE: California Proposition 7, or the Death Penalty Act, was on the November 7, 1978 statewide ballot in California as and it was approved. Proposition 7: increased the penalties for first and second degree murder. Other arguments were made about SB1437 also violating the existing Proposition 115, of 1990 - known as the Crime Victims Reform Act

Given the separate ruling of all the different Judges at the Superior Court (in different CA Counties) it is predictable that at some point a higher court is going to have to be the authority and these SB1437 (Constitutional/unconstitutional) cases are starting to move up the higher Court system.

Significantly, in the recent July 2019 case of Harvest Cyle Davidson v. Superior Court of El Dorado County, the AG’s Office, a real party in interest argues, “Senate Bill 1437 is Constitutional.”

Here they [AG]  argue, that Prop 7, set the penalties for murder, not the elements of the crime. This is of course the position that all criminal defense attorneys would argue when filing the SB1437 (resentencing petition) when confronted by the DA’s office that the law is unconstitutional, never getting a chance to go to the Merits of the client’s case.

Furthermore the AG argued that Prop. 115, is not violated either because Prop, 115 only “added to the list of predicate crimes supporting a charge of first degree felony murder and the punishments for felony first degree murder.”

For example Prop. 115, amended  PC 189 to “add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a first degree murder charge.”  It also “amended section 190.2 to require a sentence of death or life without the possibility of parole in two situations where the defendant is not the actual killer.”

The two provisions are;
1) “the defendant aids or supports a killer and acts with the intent to kill.” 
2) “the defendant is a major participant in certain crimes, such as robbery, where a death occurs, and acts with reckless indifference to human life.”

Looking at the new January 2019 law, [SB 1437] only “changed the culpability required to convict for felony-murder and the ‘natural and probable consequences’ doctrine.”

The felony-murder rule, as it existed before 2019, made “a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state.” - an easy standard for the DA to get a Murder conviction - for example for non-killer co-defendant of a felony crime.

In addition, some courts in their ruling defensively pointed out that the “natural and probable consequences” doctrine, as it existed before 2019, made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime)”—including murder—“committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.”

In passing SB 1437 in 2018, the legislature and government pointed out that “[r]eform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual.”

Significantly, the new law was designed “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 disregard for human life.”

The AG therefore notes that this “narrows the felony murder rule” as well as the “natural and probable consequences” doctrine.

They can only be used when the participant in the underlying felony “is the actual killer” or “is not the actual killer but, with intent to kill, aids or abets a first degree murder” or “is a major participant in the underlying felony and acts with reckless indifference to human life.”

As such, the AG Office argues that SB 1437 does not amend Prop. 7.  They argue instead, “S.B. 1437 changed the elements that must be proven to convict for the crime of murder, not the penalties upon conviction.”

Further, they argue that SB 1437 “did not restrict the Legislature’s authority to change the culpability requirement to convict for murder.”  Therefore, in their opinion, “S.B. 1437 thus did not amend Proposition 115.”

The most crucial point of this El Dorado County case is that the AG accepts SB 1437 as constitutional and goes up against the DA’s position of most counties.

 STAY TUNE for more…

It seems unlikely   that there will be any Published Appellate Opinions by November 2019, though perhaps not impossible!