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, arguing that it “violates the separation of powers” by allowing the legislature to reopen cases already decided by the courts and giving courts pardoning power meant to be held only by the governor.”
In addition, some have argued that it is unconstitutional because the state Legislature passed SB 1437, which would in effect amend Prop. 7 without voter approval, along with Prop 115 without the required two-thirds vote.
This is the position that Yolo County Judge David Rosenberg took in the case of Antonio Morales, who was convicted of second-degree murder in the stabbing death of Jesus Aldrete, even though it was a co-defendant who actually carried out the attack and wielded the knife.
Judge Rosenberg struck it down as “unconstitutional,” and in a written ruling he stated, “By enacting 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,” Rosenberg’s ruling says.
“Whereas Proposition 115 expands the definition of first-degree murder, SB 1437 restricts and takes away from that definition,” Judge Rosenberg added.
Clearly, at some point a higher court is going to have to be the authority and these cases are starting to move up the system.
Significantly, in the 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 argue, that Prop 7, known as the Briggs Initiative, notable for reinstating the death penalty in 1978, “set the penalties for murder, not the elements of the crime.”
Prop. 7 was “touted” as the cure to the “weak and ineffective” death penalty bill enacted by the Legislature the year before.
Opponents of the law argued that it was “written carelessly,” creating the possibility that “a man or a woman could be sentenced to die for lending another person a screwdriver to use in a burglary, if the other person accidentally killed someone during the burglary.”
In response, proponents assured the voters that a “person must have intentionally aided in the commission of a murder to be subject to the death penalty under this initiative.”
Meanwhile, Prop. 115, the AG argues, “added to the list of predicate crimes supporting a charge of first degree felony murder and the punishments for felony first degree murder.”
Specifically they are that Prop. 115 “amended section 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 first that “the defendant aids or supports a killer and acts with the intent to kill.” The second is “the defendant is a major participant in certain crimes, such as robbery, where a death occurs, and acts with reckless indifference to human life.”
They note that the ballot arguments “did not address these specific changes,” but that it permits the Legislature to amend its terms by statutes passed by two-thirds vote in each house.”
Meanwhile, SB 1437 “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.”
In addition, the court 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.”
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.”
(It is worth noting that in the case before the court, the AG rejects the contention by the petitioner that “he cannot be liable for murder because there was insufficient evidence presented at preliminary hearing that he was a major participant in the underlying felony and acted with reckless indifference to human life.” The AG argues, “Petitioner’s argument has no merit.”
However, more crucially, the AG accepts SB 1437 as constitutional.
—David M. Greenwald reporting