Crime and Punishment and Voter Intent: Constitutional Arguments over SB 1437 [Part 1]

By Danielle Silva

Oral arguments for two Senate Bill 1437 cases delve into the constitutionality of redefining felony murder.

The felony-murder rule originally charged defendants who were committing a crime when another individual dies. SB 1437 redefines that law for felony-murder liability by excluding “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 indifference to human life.” In the following cases presented in the Fourth District Appellate District, Division One Court of California, both the prosecution and defense provide oral arguments over the constitutionality of this new law.

The first case to appear was People v. The Superior Court of San Diego/Gooden, one of the two cases on the calendar concerning a DA writ petition in response to a trial court ruling that SB 1437 is constitutional in a pending case.

San Diego County Deputy District Attorney Christine Louise Bannon focused her oral argument on the idea that crime and punishment cannot be separated from one another.

“A crime and its punishment are inextricably interwoven. One cannot exist without the other,” Bannon said.

She pointed to Penal Code § 15 where crime is defined as “prohibited conduct where a crime is attached.” Through SB 1437’s redefining of felony-murder conditions, voted laws surrounding punishment for felony murder, such as Prop 7 and Prop 115 would also be affected.

She argued that during the time Prop 7 and Prop 115 were put into place, the voters were aware of the established definition of murder at the time. The legislature would be overstepping their abilities by enacting a law that contradicts the voter’s intent through its design and application. Bannon stated that while Prop 7 and 115 add to the punishments for murder charges, SB 1437 does the opposite of such by taking away provisions.

The deputy district attorney also stated Penal Code § 1170.95, a newly established resentencing statute that allows individuals convicted of first- and second-degree murder cases to petition for their conviction to be resentenced or vacated based on conduct, also undoes what voters expressively wanted to be done. PC § 1170.95, the court did note, allowed sentences to remain as they were or be reduced but not made greater.

Bannon found that attempting to use conduct other than murder conduct to define the punishment “expressively undoes what voters wanted at the time, which was to fix a penalty for conduct and not have that conduct redefined at some future date to allow for some lesser penalty.”

Troy Anthony Britt from the San Diego County Public Defender’s Office spoke next, addressing how SB 1437 boils down to technical definitions.

“The legislature passed SB 1437… to ensure people were being held liable for their level of culpability, all the while protecting the voter’s initiative, had set out which was more strict, harsher punishments,” Britt said.

He argued that SB 1437, Prop 7, and Prop 115 could work together as the props focus on the punishment while the Senate bill focuses on the elements of the offense. Even then, SB 1437 can only be applied to individuals who are not the actual killer, aiders and abettors who didn’t act with the intent to kill, or major participants who did not act with reckless indifference. Britt argued if a person is found guilty of felony murder, they will still fall under the same punishment guidelines of what the voters wanted.

At this moment, the court noted that the Gooden case concerned the defendant being convicted for a felony murder from a burglary where the defendant’s wife had done the killing. Britt stated the question remained if Mr. Gooden acted as an aider and abettor with the intent to murder.

The defense noted that SB 1437 didn’t act as an amendment towards Prop 7 and Prop 115 according to the Pearson test, the bill did not act with the intent to change an initiative by adding or taking away from it, but not the Scope and Effect Test. Britt argued that the Scope and Effect Test should not be used, however, because the California Supreme Court actually criticized that test as it was too expansive and was too restrictive in terms of what the legislature can do in acts of voter initiative.

In arguing for SB 1437’s constitutionality, Britt argued that the related area and district must be taken into consideration and whether the bill specifically prohibits or authorizes.

He claimed that the bill with Penal Code § 189 acted as a technical reenactment as the language doesn’t change but acts to clarify what the language is. Additionally, Britt claimed it doesn’t take away from Prop 7 and 115, as Bannon had stated. Britt also noted that Prop 7 and 115 didn’t say the legislature could enact a bill like SB 1437.

Nelson Richards from the Attorney General’s Office spoke next, noting that crime and punishment are not exactly intertwined, as in trial courts the jury decides guilt and the court decides the sentence, separating the penalty and the offense.

He argued that voters could have codified murder but didn’t. The court argued, however, that an acting body should be assumed to have knowledge of the applicable legislative law and should assume murder as what existed at the time. As such, the court argued Richards didn’t have evidence to the contrary. Richards argued that voters’ intent for Prop 7 focused on notorious murders such as Charles Manson, Sirhan Sirhan, the Hillside Strangler and people who killed with intent, not the definition of murder.

Bannon returned for a rebuttal, stating again that voters were not getting what they enacted by changing the focus to the conduct. She stated how voters were likely thinking of a number of things that they understood, including what aiders and abettors were. Banon stated that many cases that covered pre-conviction work did not reference Prop 7 as it referred to post-conviction topics. She also argued that the Pearson test also applies to pre-trial criminal discovery.

She stated that PC § 189 was not a technical reenactment as it acted substantively to the expansion of felony murder culpability in Prop 115.

The matter was submitted. The opinion of the court will be released no later than Feb. 10, 2020.

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