People v. Gentille 12/17/20: SB 1437 Bars 2nd degree Murder Under Natural and Probable Consequences Doctrine

 In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine.   Specifically, SB1437  established a procedure permitting certain qualifying persons who were previously convicted of 1) felony murder or 2) murder under the natural and probable consequences (NPC) doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain re-sentencing on any remaining counts.

In the last two years many cases have been filed in all different California Jurisdictions regarding the application of SB1437. In a recent California Supreme Court case [12/17/2020 People v. Gentile, case number S256698] SB 1437 was found to Bar Second degree Murder  convictions Under the Natural and Probable Consequences (NPC) Doctrine.  A unanimous decision: Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuéllar, Kruger, Groban, and Grimes concurred.


 FACT AND PROCEDURAL BACKGROUND:

The case before the CA Supreme Court involves the murder conviction of Joseph Gentile, who was charged in the beating death of a restaurant caretaker in Indio. At trial, the court instructed the jury on three separate theories of first-degree murder, one of which was that he aided and abetted his ex-wife in a felony assault whose natural and probable consequence was death.

In Gentile I, the Court of Appeal observed that the superior court “instructed the jury at length that it could convict defendant of first degree murder” under a natural and probable consequences theory. (Gentile I, supra, E064822.) The court said “[t]he fact the jury did not find that the defendant used a deadly or dangerous weapon in the commission of the offense supports an inference that the jury convicted him on [a natural and probable consequences] theory” instead of viewing him as the direct perpetrator of the crime……….

……The jury then convicted Gentile of first degree murder and found not true that he personally used a deadly weapon. The prosecution dismissed the prison prior, and the court sentenced Gentile to 25 years to life in prison.

The Court of Appeal reversed Gentile’s first-degree murder conviction, and on remand the prosecution reduced his charge to second-degree murder. He was sentenced to 15 years to life in prison.

The court found it “probable that the jury convicted
defendant on an unauthorized legal theory” because the trial
court had instructed the jury on the natural and probable
consequences theory…….

….The Court of Appeal remanded the case for the prosecution to decide whether to “retry [Gentile] for the first degree murder under theories other than natural and probable consequences” or to accept reduction of Gentile’s conviction to second degree murder. (Ibid.) It did not reach Gentile’s other claims. On remand, the prosecution elected to accept a reduction to second degree murder, and Gentile was sentenced to a prison term of 15 years to life.

After the governor signed SB 1437, Gentile appealed again, arguing the bill applied retroactively to his conviction and eliminated second-murder liability under a natural and probable consequences doctrine. An appeals court rejected Gentile’s argument, and the Supreme Court granted review.

COURT’S REASONING:

Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense they directly aided or abetted, but also of any other offense the direct perpetrator commits that was the “natural and probable consequence” of the crime the accomplice aided and abetted.

Culpability under the doctrine doesn’t require the accomplice to share the direct perpetrator’s intent. SB 1437 thus aimed to make it harder to convict someone for murder when that person didn’t intend to kill or didn’t act with conscious disregard for human life.

The “most natural meaning” of the SB 1437 provision at issue, construed in the context of the bill as a whole and of the Penal Code, “bars a conviction for first or second degree murder under a natural and probable consequences theory,” Justice Goodwin Liu wrote for the Supreme Court.

With SB 1437, the Legislature intended to restrict murder culpability outside the felony murder rule “to persons who personally possess malice aforethought,” Liu wrote, and the natural and probable consequences doctrine “is incompatible with this requirement because an aider and abettor need not personally possess malice, express or implied, to be convicted of second degree murder” under that theory.

“Apart from the Court of Appeal decision in this case, every published Court of Appeal opinion to address the issue has concluded that Senate Bill 1437 eliminates natural and probable consequences liability for murder regardless of degree,” Liu wrote, citing seven appellate cases. “We agree with these authorities.”

SB 1437’s ameliorative provisions, however, don’t apply on direct appeal to nonfinal convictions obtained before the law became effective, such as Gentile’s, the court held. It concluded that such convictions can be challenged on SB 1437 grounds only through a petition filed in the sentencing court under Penal Code section 1170.95.

The court remanded Gentile’s case to the lower court to affirm Gentile’s second-degree murder conviction without prejudice to any petition for relief that he may file under section 1170.95.

Going forward, the parties agree that Gentile has made “a
prima facie showing that he . . . is entitled to relief” (§ 1170.95,
subd. (c)) in light of the Attorney General’s concessions and the
Court of Appeal’s determination in Gentile I that it is “probable”
the jury relied on a natural and probable consequences theory
in finding him guilty of murder. In their section 1170.95 briefing, the parties are free to litigate what bearing, if any, doctrines of estoppel or preclusion may have in light of those prior concessions and the Court of Appeal’s determination in Gentile I.

CONCLUSION"

The judgment of the Court of Appeal is reversed. The matter is remanded to that court to affirm Gentile’s second degree murder conviction without prejudice to any petition for relief that Gentile may file under section 1170.95.


Editor’s OPINION: This is a great outcome from the Published California Supreme Court case. It is a very significant case becasue it determines  that liability for the crime of second degree murder in California under the natural and probable consequences (NPC) doctrine has been eliminated.

LA's New DA George Gascón's default policy : DA will not attend parole hearings & will support in writing the grant of parole when the minimum Eligible date has been reached.

George Gascón, A former beat cop, Assistant Chief of the Los Angeles Police Department and elected District Attorney, George Gascon's 40-year career in law enforcemnts has taken him from the streets of LA to the highest ranks of Law Enforcement and the Courtroom.

In his inauguration speech, Gascón said his time as a hard-charging LAPD cop in the 1980s and '90s helped shape his transformation into an advocate for wide-ranging criminal justice reforms. Gascon announced a sweeping range of reforms when he was sworn-in Monday, including no longer seeking the death penalty and not using gang enhancements for sentencing. 

Supporters of Gascon, say he is correct to try to reduce mass incarceration in California and instead seek more rehabilitative solutions in addition to mental-health treatment for offenders.

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More specifically information (below) to help the incarcerated population; it will be at their Parole Suitability Hearing...... Continue reading the excerpts below.

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 LA DA recognizes that parole is an effective process to reduce recidivism, ensure public safety, and assist people in successfully rejoining society. The CDCR’s own statistics show that people paroled from life terms have a recidivism rate of less than four percent.

LA DA states: we are not experts on rehabilitation. While we have information about the crime of conviction, the Board of Parole Hearings (BPH) already has this information.

Further, as the crime of conviction is of limited value in considering parole suitability years or decades later, (see In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal. 4th 1241, 1255), the value of a prosecutor’s input in parole hearings is also limited. Finally, pursuant to Penal Code section 3041, there is a presumption that people shall be released on parole upon reaching the Minimum Eligible Parole Date (MEPD), their Youth Parole Eligible Date, (YEPD), or their Elderly Parole Date (EPD).

Currently, sentences are being served that are much longer than the already lengthy mandatory minimum sentences imposed. Such sentences are constitutionally excessive. (See In re Palmer (2019) 33 Cal.App.5th 1199.)

This LA’s Office’s default policy is that we will not attend parole hearings and will support in writing the grant of parole for a person who has already served their mandatory minimum period of incarceration, defined as their MEPD, YEPD or EPD.

However, if the CDCR has determined in their Comprehensive Risk Assessment (CRA) that a person represents a “HIGH” risk rating for recidivism, the DDA may, in their letter, take a neutral position on the grant of parole.

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This SEA OF CHANGE is beyond our wildest hopes and dreams as Criminal Defense Attorneys. This is amazing! As a parole specialist, the fact that LA will now be supporting, instead of opposing, the majority of inmates (at parole hearings) is AMAZING.  

NOTE:  For someone who meets the specified criteria (over 15 years incarcerated, age, covid risks, etc) they can make a  direct  request for 1170(d) resentencing at the District Attorney's office. 

As a reminder:

In June 2018, the Legislature passed and Governor Brown signed Assembly Bill(AB) 1812,
which amended Penal Code § 1170(d)(1). The new law took effect immediately. 

Penal Code § 1170(d)(1) authorizes a court  to recall a sentence and resentence a person to a lesser sentence in two circumstances: (1) on the court’s own motion within 120 days after sentencing,  or (2) at any time upon a recommendation from the California Department of Corrections (CDCR) or  the Board of Parole Hearings (BPH) (or, for people in county jails, are commendation from the county correctional  administrator). The  CDCR’s  current  regulations about §1170(d)(1)  sentence  recall recommendations are in the California Code of Regulations, Title 15, §§3076-3076.2.  In  the  past,  the  CDCR  rarely  used  its  authority  to recommend sentence recalls. Now, they should because AB 1812 grants additional funds to the CDCR to investigate potential cases to refer for recall of sentence.

10/27/20 In re TERRELL CURRY Superior Court (LA): Board can not use "plausible discrepancies" against Inmate version to deny parole, among other factors discussed.

 This October 27, 2020 Superior court case is great for specific factors  that come up all the time at a parole hearing. Does the inmate "lie" to agree with "the record" or provide his story that is inconsistent with the record? DOes a CDC-128 counseling chrono provide "some evidence" of dangerousness to be denied parole?  Read below and see what the LA Superior Court thinks.

A big "Shout Out" to Michael J. Brennan, Esq. and Heidi L. Rummel, Esq., of the Post Conviction Justice Project at the University of Southern California Gould School of Law who represented the Petitioner Terrell Curry.

We have pulled out a few paragraphs (here)  from the decision that explains that an inmate (among other factors) does not have to agree with “the record” if his version is ….as the court states:

    “Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.)

The court goes on to explain that even a small Rule Violation (RVR)  (aka CDC-128) does not provide “some evidence” of unsuitability  if the inmate has a long history of good conduct.

“……when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)


Below is an excerpt of the Memorandum of Decision by the Los Angeles Superior Court granting the writ of habeas corpus. Although it can not be cited, it contains good case Citation that can be used for arguments and to "make a record" during a BPH Parole Hearing.

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
October 27,2020
Honorable: WILLIAM C. RYAN
BH012985
(Underlying Criminal Case No. BA214317-02)
In re TERRELL CURRY, Petitioner on Habeas Corpus


FACTUAL BACKGROUND

Petitioner is serving an indeterminate life sentence following his conviction for two counts of attempted murder of a police officer, two counts of assault on a police officer with a firearm and one count of assault with a firearm. He is currently serving his sentence at the California Correction Institution, located in Tehachapi, California.

On March l3, 2018, the Board of Parole Hearings (2018 Panel or the Board) convened an initial youth offender parole suitability hearing where it found Petitioner unsuitable for parole based on his credibility regarding the offense. (Hearing Transcript, dated Mar. 13, 2018, attached to petn. as Exh. E.) The 2018 Panel also questioned if Petitioner's low comprehensive risk assessment rating would have remained low if he had explained his version of events to the psychologist the way he explained it to the 2018 Panel. On April 10, 2019, Petitioner filed a writ of habeas corpus contending "there is no evidence that [Petitioner] poses a current danger to society." (Petn. at p. 3.) This court dismissed the petition as moot because Petitioner's next Board hearing was scheduled for August 22,2019.

On August 22, 2019, the Board of Parole Hearings (Board) convened a first subsequent parole consideration hearing where it found Petitioner unsuitable for parole based on the commitment offense, petitioner's violent criminal history, a CDC 128-A Counseling Chrono (Counseling Chrono) he received one month before the current hearing, and lack of credibility and minimization. The Board issued a 3-year denial. (Hearing Transcript (HT) dated Apr. 28, 2020, at pp.81-89.)


April 28, 2020, Petitioner filed the instant writ of habeas corpus contending that the Board improperly relied on the counseling chrono to deny him parole because there is no nexus between the chrono and his current dangerousness, and that the Board may not deny parole if Petitioner's version of events is "not physically impossible" and does "not strain credulity such that ,the [inmate's version] is delusional, dishonest, or irrational." (Petn. at p. 21. [brackets in original]; quoting In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112.)

On June 10, 2020, the undersigned issued an Order to Show Cause, finding Petitioner made a prima facie showing that he is entitled to habeas corpus relief. (Cal. Rules of Court, rule 4.551(c)(1).) The court asked the parties to specifically address the Court of Appeal's opinions in In re Palermo (2009) 171 Cal.App.4th 1096 and In re Perez (2016) 7 Cal.App.5th 65, and how they relate to Petitioner's recent institutional misconduct and his differing version of the commitment offense.

On August 19, 2020, Respondent filed a Return asserting that there is "some evidence" to support the Board's decision that Petitioner is 'unsuitable for parole due to his recent institutional misconduct, his lack of credibility, and his continued minimization of the commitment offense. (Return at pp. 3-6.)

On September 18, 2020, Petitioner filed a Traverse. Petitioner asserts that there is no "rational nexus" between the "minor counseling chrono" he recently received and the commitment offense as explained by the Board and therefore it cannot support a finding of unsuitability. (Traverse at pp. 1- 4.) He also contends that the Board's denial of parole based on his plausible version of the commitment offense is improper and is a violation of due process. (Id. at pp. 4-6.)

The court finds an, evidentiary hearing is unnecessary because determining whether Petitioner is entitled to relief does not depend on the resolution of an issue of fact. (Cal. Rules of Court, rule 4.551(f).)

SUMMARY

Having independently reviewed the record, and giving deference to the broad discretion of the Board in parole matter, the court finds that the record does not contain "some evidence" to support the Board's determination that Petitioner is unsuitable for release on parole.

Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.) Accordingly, the court finds the record contains no evidence supporting a finding that there is a nexus between Petitioner's version of the commitment offense and his current dangerousness.

…………….

The Board's minimization finding is not supported by any evidence. There is every indication in the record that Petitioner understands the danger the community and the deputies were put in that night and has worked for over 15 years to educate himself and program in an effort to rehabilitate. (RT at p. 82.) The Board erred in this regard.

Petitioner's institutional misconduct, even the minor misconduct, indicates that Petitioner is either unable or unwilling to conform to the requirements of the law and may constitute some evidence that Petitioner is a current danger to public safety and therefore unsuitable for parole. (See In re Reed, supra, 171 Cal.App.4th at pp. 1084-1085; In re Montgomery (2012) 208 Cal.App.4th 149, 164.) However, when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)

……………..

The Board ultimately concluded, however, that the positives were outweighed by circumstances not supportive of his suitability for parole. This court is not entitled to reweigh the evidence before the Board; rather, it is tasked with determining whether the record contains some evidence in support of the Board's conclusion. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 656, 665-677.) As discussed ante, the court finds the record does not contain evidence to support the Board's conclusion, and that there is no rational nexus between the evidence in the record and the Board's determination of Petitioner's current dangerousness.

DISPOSITION

For all the foregoing reasons, the petition for writ of habeas corpus is GRANTED. The Board of Parole Hearings is ordered to conduct a new parole hearing within 60 days of finality of this order consistent with applicable law and this decision.

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