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Accomplice Liability for Murder (Sb 1437)

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ACCOMPLICE LIABILITY FOR MURDER (SB 1437) J. RICHARD COUZENS Judge of the Superior Court County of Placer (Ret.) June 2020 1 Rev. 6/20 ACKNOWLEDGMENTS Substantial contributions were made to this memorandum by the Los Angeles Superior Court, particularly by Hon. William C. Ryan REVISIONS TO MEMORANDUM In addition to non-substantive additions or corrections to the previous memorandum, the memorandum revised in June 2020 contains the following changes or additions: Pages 19 – 20 – P v. Gentile – SB 1437 does not eliminate NPC for second degree murder; P v. Lopez, P v. Munoz, P v. Dennis – SB 1437 does eliminate NPC for murder; P v. Medrano, P v. Sanchez – SB 1437 eliminates NPC for attempted murder; P v. Larios – PC § 1170.95 does eliminate NPC for attempted murder Page 23 – P v. Lopez, P v. Munoz – Section 1170.95 does not apply to attempted murder; P v. Medrano – Section 1170.95 applies to attempted murder. Page 23 – P v. Cervantes, P v. Flores, P v. Turner, P v. Larios, P v. Sanchez – Section 1170.95 does not apply to voluntary manslaughter. Pages 23 – 24 – P v. Lee – Provocative act doctrine. Page 26 – P v. Cervantes – may not raise SB 1437 on direct appeal; must use Section 1170.95; P v. Medrano – may raise SB 1437 for attempted murder not final. Page 27 – In re Cobbs – Relief by use of petition for writ of habeas corpus. Page 28 – Convictions obtained by plea; P v. Cervantes – plea to manslaughter. Pages 30 – 41 – Evaluation of prima facie basis for eligibility for and entitlement to resentencing. Page 41 – Burden of proof. Pages 42 – 43 – P v. Banda, P v. Hall – use of hearsay. Page 44 – Nature of hearing; issues. Page 45 – People’s burden of proof. Page 46 – Sentencing of enhancements of target offense. Pages 50 – 54 – Constitutionality of SB 1437; P v. Lamoureux, P v. Superior Court (Gooden), P v. Cruz, P v. Solis and P v. Prado. 2 Rev. 6/20 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................... 5 II. LAW PRIOR TO JANUARY 2019 ......................................................................................... 5 A. First degree felony murder ................................................................................................. 5 B. Second degree felony murder ............................................................................................ 6 C. Doctrine of natural and probable consequences ............................................................... 6 III. EFFECTIVE DATE OF SB 1437 ............................................................................................. 7 A. Effective date of resentencing provisions .......................................................................... 8 B. The application of Estrada .................................................................................................. 8 C. The new felony-murder rule ............................................................................................. 13 D. Exceptions to new rule ..................................................................................................... 14 1. Defendant is the killer (§ 189, subd. (e)(1)) ................................................................ 14 2. Defendant is not the killer, but aided the killing (§ 189, subd. (e)(2)) ....................... 14 3. Defendant was a major participant in the crime and acted with reckless indifference (§ 189, subd. (e)(3)) ..................................................................................................... 15 4. Exception for death of a peace officer (§ 189, subd. (f)) ............................................ 17 IV. ELIMINATION OF THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE ................. 17 V. OTHER ISSUES RELATED TO AMENDMENT OF SECTIONS 188 AND 189 ............................ 20 A. Whether SB 1437 eliminates second degree felony murder............................................ 20 B. The relationship between the felony-murder rule and special circumstance felony- murder enhancement for accomplices ............................................................................. 21 C. Special findings by jury ..................................................................................................... 22 VI. PETITION FOR RESENTENCING (§ 1170.95) ...................................................................... 23 A. Eligibility for resentencing (§ 1170.95, subd. (a)) ............................................................. 23 1. Persons currently serving a term for murder ............................................................. 23 2. Persons who have completed their sentence ............................................................ 24 B. Filing period; date of conviction ....................................................................................... 25 C. Cases on appeal ................................................................................................................ 25 D. Conditions for granting relief (§ 1170.95, subd. (a).) ....................................................... 28 E. Form and content of the petition (§ 1170.95, subd. (b)(1)) ............................................. 29 F. Filing and service of the petition (§ 1170.95, subd. (b)(1)) .............................................. 29 G. Assigned judicial officer (§ 1170.95, subd. (b)(1)) ............................................................ 30 3 Rev. 6/20 H. Procedure for the review of the petition and issuance of order to show cause (§ 1170.95, subd. (c)) ............................................................................................................ 30 1. Facial sufficiency of the petition ................................................................................. 30 2. Preliminary review of eligibility for resentencing ....................................................... 31 3. Evaluation of entitlement to resentencing ................................................................. 36 4. Issuance of order to show cause ................................................................................ 38 5. Informal handling of petition by stipulation ............................................................... 39 6. Prior finding of allegation under section 190.2, subdivision (d) ................................. 39 7. Deadline for determining prima facie basis ................................................................ 40 8. Ruling by the court ...................................................................................................... 40 I. Setting of hearing (§ 1170.95, subd. (d)(1)) ...................................................................... 41 J. Hearing on the grounds for relief ..................................................................................... 41 1. Burden of proof ........................................................................................................... 41 2. Evidence at the hearing (§ 1170.95, subd. (d)(3)) ...................................................... 41 3. Presence of the petitioner .......................................................................................... 43 4. The issues at the hearing ............................................................................................ 44 K. Relief granted by the court (§ 1170.95, subd. (d)(3).) ...................................................... 45 1. Vacating of conviction ................................................................................................. 45 2. Resentencing of petitioner ......................................................................................... 46 L. Whether prosecution is entitled to new trial if relief granted ......................................... 49 M. Right to appeal .................................................................................................................. 49 VII. Constitutionality of SB 1437 ........................................................................................... 50 A. SB 1437 is not an invalid amendment of Propositions 7 and 115 .................................... 51 B. SB 1437 does not violate the separation of powers ......................................................... 52 C. SB 1437 does not violate Marsy’s Law .............................................................................. 53 D. People may not raise challenge based on denial of petitioner’s rights ........................... 54 APPENDIX I: TEXT OF SB 1437 ............................................................................................. 55 APPENDIX II: CHECKLIST FOR HEARING UNDER PEN. CODE, § 1170.95 ................................. 59 APPENDIX III: ORDER SUMMARILY DENYING PETITION ........................................................ 63 APPENDIX IV: ORDER ISSUING ORDER TO SHOW CAUSE ....................................................... 65 Copyright © 2020 Barrister Press Permission is granted to copy and distribute these materials to the judges and staff of the California judiciary 4 Rev. 6/20 I. INTRODUCTION Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), enacted by the Legislature and effective January 1, 2019, made substantial changes to the law relating to the liability of an accomplice under California’s felony-murder rule and doctrine of natural and probable consequences.1 The legislation has three primary components: (1) a restriction of the ability to prosecute a person for murder when the
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