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SB-1437 Accomplice liability for felony murder.(2017-2018)

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Date Published: 05/25/2018 09:00 PM
SB1437:v98#DOCUMENT

Amended  IN  Senate  May 25, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1437


Introduced by Senators Skinner and Anderson
(Principal coauthor: Assembly Member Gipson)
(Coauthor: Senator Wiener)
(Coauthors: Assembly Members Burke and Medina)

February 16, 2018


An act to amend Sections 188, 189, 667.1, 1170.125, and 1192.7 of, and to add Chapter 16 (commencing with Section 1425) to Title 10 of Part 2 of, the Penal Code, relating to murder.


LEGISLATIVE COUNSEL'S DIGEST


SB 1437, as amended, Skinner. Accomplice liability for felony murder.
Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Existing law defines malice for this purpose as either express or implied and defines those terms.
This bill would prohibit malice from being imputed to a person based solely on his or her participation in a crime. The bill would prohibit a participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.
Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.
This bill would prohibit a participant or conspirator in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person personally committed the homicidal act, the person acted with premeditated intent to aid and abet an act wherein a death would occur, was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.
Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.
This bill would include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.
This bill would provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, 2nd degree felony murder, or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or 2nd degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or 2nd degree murder, and the defendant could not be charged with murder after the enactment of this bill. The bill would provide that the court cannot, through this resentencing process, remove a strike from the petitioner’s record. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 188 of the Penal Code is amended to read:

188.
 (a) For purposes of Section 187, malice may be express or implied.
(1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.
(2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
(3) Malice shall not be imputed to a person based solely on his or her participation in a crime. A participant or conspirator in the commission or attempted commission of a felony inherently dangerous to human life may be imputed to have acted with implied malice only if he or she personally committed the homicidal act.
(b) If it is shown that the killing resulted from an intentional act with express or implied malice, as defined in subdivision (a), no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite that awareness is included within the definition of malice.

SEC. 2.

 Section 189 of the Penal Code is amended to read:

189.
 (a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
(b) All other kinds of murders are of the second degree.
(c) As used in this section, the following definitions apply:
(1) “Destructive device” has the same meaning as in Section 16460.
(2) “Explosive” has the same meaning as in Section 12000 of the Health and Safety Code.
(3) “Weapon of mass destruction” means any item defined in Section 11417.
(d) To prove the killing was “deliberate and premeditated,” it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
(e) A participant or conspirator in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person personally committed the homicidal act. was the actual killer.

(2)The person acted with premeditated intent to aid and abet an act wherein a death would occur.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life. life, as described in subdivision (d) of Section 190.2.

SEC. 3.

 Section 667.1 of the Penal Code is amended to read:

667.1.
 (a) Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after November 7, 2012, but before January 1, 2019, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on November 7, 2012.
(b) Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after January 1, 2019, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on January 1, 2019.

SEC. 4.

 Section 1170.125 of the Penal Code is amended to read:

1170.125.
 (a) Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, statewide general election for all offenses committed on or after November 7, 2012, but before January 1, 2019, all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed on November 7, 2012.
(b) Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, statewide general election, for all offenses committed on or after January 1, 2019, all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they read on January 1, 2019.

SEC. 5.

 Section 1192.7 of the Penal Code is amended to read:

1192.7.
 (a) (1) It is the intent of the Legislature that district attorneys prosecute violent sex crimes under statutes that provide sentencing under a “one strike,” “three strikes” or habitual sex offender statute instead of plea bargaining those offenses.
(2) Plea bargaining in a case in which the indictment or information charges a serious felony, a felony in which it is alleged that a firearm was personally used by the defendant, or an offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.
(3) If the indictment or information charges the defendant with a violent sex crime, as listed in subdivision (c) of Section 667.61, that could be prosecuted under Sections 269, 288.7, subdivisions (b) through (i) of Section 667, Section 667.61, or 667.71, plea bargaining is prohibited unless there is insufficient evidence to prove the people’s case, testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. When presenting the agreement to the court, the district attorney shall state on the record why a sentence under one of those sections was not sought.
(b) As used in this section “plea bargaining” means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to a charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, “serious felony” means any of the following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or an explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or an explosive with intent to murder; (18) burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) a felony in which the defendant personally used a dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) a felony offense that would also constitute a felony violation of Section 186.22; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) an attempt to commit a crime listed in this subdivision other than an assault; (40) a violation of Section 12022.53; (41) a violation of subdivision (b) or (c) of Section 11418; (42) any felony that is inherently dangerous to human life in which a person was killed, and (43) any conspiracy to commit an offense described in this subdivision.
(d) As used in this section, “bank robbery” means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another property, money, or any other thing of value belonging to, or in the care, custody, control, management, or possession of, a bank, credit union, or savings and loan association.
As used in this subdivision, the following terms have the following meanings:
(1) “Bank” means a member of the Federal Reserve System, a bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and a bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
(2) “Savings and loan association” means a federal savings and loan association and an “insured institution” as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.
(3) “Credit union” means a federal credit union and a state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union administration.
(e) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.

SEC. 6.

 Chapter 16 (commencing with Section 1425) is added to Title 10 of Part 2 of the Penal Code, to read:
CHAPTER  16. Recalling Sentencing

1425.
 (a) A defendant may submit a request to have his or her conviction vacated and petition for resentencing when all of the following conditions apply:
(1) A complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine.
(2) The defendant was sentenced to first degree or second degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder.
(3) The defendant could not be convicted of first degree or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.
(b) The petition shall include both of the following: a declaration by the petitioner that he or she believes that he or she is eligible for relief under this section, based on all of the requirements of subdivision (a).

(1)A statement by the petitioner that he or she believes that he or she is eligible for relief under this section, based on all of the requirements of subdivision (a).

(2)The names and case numbers of all other coparticipants in the underlying felony and whether they were charged and tried separately, or a statement that the petitioner does not know the names and case numbers of coparticipants.

(c)If any of the information required in subdivision (b) is missing from the petition, the court shall return the petition to the petitioner and advise him or her that the matter cannot be considered without the missing information.

(d)

(c) Upon receipt of the petition, the court shall request all of the following: provide notice to the attorney who represented the petitioner in the superior court, or to the public defender if the attorney of record is no longer available, and to the district attorney in the county in which the petitioner was prosecuted. The notice shall inform those parties that a petition had been filed pursuant to this section and that a response from both parties as to whether the petitioner is entitled to relief is required to be filed within 60 days.

(1)A copy of the charging documents from the superior court in which the case was prosecuted.

(2)The abstract of judgment.

(3)The reporter’s transcript of the plea, if applicable, and the sentencing transcript.

(4)The verdict forms, if a trial was held.

(5)Any other information the court finds relevant to its decision, including information related to the charging, conviction, and sentencing of the petitioner’s codefendants in the trial court.

(e)The court shall also provide notice to the attorney who represented the petitioner in the superior court and to the district attorney in the county in which petitioner was prosecuted. Notice shall inform each that a petition had been filed pursuant to this section and shall request that a response be filed from both parties as to whether the petitioner is entitled to relief.

(f)

(d) (1) If the court finds that there is sufficient evidence that the petitioner falls within the provisions of this section, the court shall hold a resentencing hearing to determine whether to recall the sentence and commitment previously ordered and to resentence the petitioner in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
(2) The court shall inform the petitioner’s defense counsel and the district attorney in the county in which the petitioner was prosecuted and sentenced that the petitioner is entitled to a resentencing hearing.
(3) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible for resentencing. to have his or her sentence vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence.

(4)If the petitioner was charged with or convicted of first degree felony murder, resentencing shall be granted unless the prosecution proves, beyond a reasonable doubt, that the petitioner meets the requirements of subdivision (e) of Section 189.

(5)If the petitioner was charged with or convicted of second degree felony resentencing shall be granted unless the prosecution proves, beyond a reasonable doubt, that the petitioner personally committed the homicidal act.

(4) If the petitioner was charged with or convicted of first degree murder under a theory of felony murder, the petitioner shall have the initial burden of going forward with evidence that he or she was not the actual killer, did not act with the intent to kill, and did not act as a major participant with reckless disregard for human life in the commission of the felony. If the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor may rely on the record of conviction to meet its burden, but the petitioner may offer new or additional evidence to meet the burden of going forward or in rebuttal of the prosecution’s evidence.
(5) If the petitioner was charged with or convicted of second degree murder under a theory of felony murder or the natural and probable consequences doctrine, the petitioner shall have the initial burden of going forward with evidence that he or she did not personally commit the homicidal act. If the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor may rely on the record of conviction to meet its burden, but the petitioner may offer new or additional evidence to meet the burden of going forward or in rebuttal of the prosecution’s evidence.

(g)

(e) This section does not authorize a court to remove a strike from the petitioner’s record.

SEC. 7.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.