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 next case to appear was People v. Lamoureux, a felony-murder 1170.95 appeal from a trial court ruling of unconstitutionality, in which there was a prior finding of insufficient evidence. Michelle Peterson is the attorney representing the defendant Patty Ann Lamoureux, who was in custody.
Peterson began by noting that she would be focusing on California Constitution Article 2, Section 10 (c) as the Attorney General would be focusing on the separation of powers.
The California Constitution Art. 2, Sec. 10 (c) states, “The Legislature may amend or repeal a referendum statute. The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.”
One judge asked Peterson if the changing of the law affected final judgments and how it should be separated from the decisions of a judge and the constitutional provisions. He elaborated by asking how the legislature could remove judgment for a large group of people in a way that is not a pardon.
Peterson responded that the Supreme Court of California provides information for both questions.
“The Supreme Court in Frisby held that the legislature could [waive the finality judgment] on behalf of the state of California,” Peterson explained.
She also referenced Younger and Wey cases, stating that the court ruled that a pardon is not a legislative power. Peterson did note that the cases of Boyd and Wey note “an abolition of the conviction” where records are destroyed and the people weren’t allowed to talk about the conviction which the court allowed “as long as it is part of the legislature passing a broader set of laws, it is permitted to equate the current status of the law with the prior status of the law.”
“Otherwise, what you’d have, and what the district attorney wants in seeking to reject Younger and Boyd… [is] this class of people who could not be convicted of murder going forward and then this class of people who were convicted of murder in the past for exactly the same conduct,” Peterson stated.
Peterson argued, however, that Boyd and Wey courts stated that the legislature has the power to enact laws that promote uniformity.
In turning to Art. 2, Sec. 10 (c), the appellate attorney noted that legislation should read what legislation says and not what it doesn’t. She defined legislation as, “a specific textual proposal which is then voted on by the legislative body.” Peterson noted an initiative statute and a legislative statue are similar in having an enactment being voted on. She also noted that the legislature is allowed to decide on something an initiative matter doesn’t specifically authorize or prohibit.
She argued there is no textual provision to inform the voters of murder-penalty laws the current legislation in place that their initiative would have been affected by, and there are no hypothetical initiatives to be offered to the voters for the future. Peterson also pointed out other state courts that prohibit strict liability and natural consequences doctrine murder convictions say that it’s not in the statute and are more faithful to this textual language.
Peterson also elaborated on the presumption of voter awareness, stating that it only applies to what the average voter would know from the textual provisions of the initiative.
“There is no average voter that would have looked at Prop. 7 or Prop. 115 and went, ‘Oh, by the way, we’re enacting into initiative law that the people that kill and don’t intend to kill can be convicted of murder,’” Peterson stated.
She also stated if voter awareness did apply, it would mean the voter would be aware of all the case law, including the necessity for something to be in the textual provisions of a statute.
The next person to speak was Nelson Richards from the Attorney General’s Office as Amicus curiae on the separation of powers.
The court and Richards spoke on the case of Wey where the court stated that Wey focused on equalizing punishment instead of abolishing the punishment. Richards argued that the equalization came from those who could be punished and those who could be punished in the future. He also noted that the Boyd case is a case where the punishment was removed.
Richards wanted to break down the two separate theories of powers: this violates the pardon power, and this improperly opens up final judgments. He finds that Wey is the defining answer for those theories – that SB 1437 isn’t a separation of powers issue. He doesn’t believe SB 1437 encroaches on the other powers because it is not a matter of degree but whether one branch went into the field of another power or not.
He noted how the DA’s arguments were inconsistent with one another. In the Prop 7 argument, the DA argued that there is no distinction between crime and punishment. However, in the separation of powers context, the DA argued Wey had a punishment changed but not the conviction.
Richards also claimed the argument of the DA was “unworkable, not only in the controlling precedent but would also lead to extensive, far-reaching results in far numerous areas.” He pointed to the Dehoyos case which considered Prop 36 and 37, propositions that worked on retroactive relief, and their analysis focused on the availability of this retroactively.
However, the court pointed out that these cases didn’t abolish an offense in its entirety. Prop 65 did, however, abolish marijuana convictions. He argued, “The abolishment of crime doesn’t factor into the separation of powers issue, it is a legislative function to determine what the crimes ensure.” The question, Richards pointed out, came from whether the legislation was stepping on the powers of the governor and the judiciary, which he reiterated Wey answered that the legislation did not.
Riverside County Deputy DA Alan Douglas Tate provided an argument that SB 1437 did interfere in the separation of powers.
He noted that he would be addressing the separation of powers but noted that they are somewhat intertwined. Tate argued that SB 1437 prohibited about 40 years of mandatory sentencing for convicted murderers that Prop. 7 requires.
The deputy DA noted that a new statute in 1976 required the destruction of marijuana records, including in the courts. The People found that it violated the separation of powers and, while filing against that, a new statute came around to require that the court need not destroy its records. He argued that the Younger decision came from encroachment on the executive branch, which the Supreme Court found ill-timed.
Tate stated that SB 1437 is “a wholesale pardon blanket not based on individuality… The whole intention is to grant mercy to people convicted of murder under certain theories and it is eliminating 40 years or so… potentially decades and decades more of mandatory life sentences that were put in place by Prop. 7.”
He argued that the Boyd case was a result of vacating marijuana records but there was no additional discussion based on the ability to eliminate negative aspects of marijuana convictions based on the viewpoints of society. Tate also stated that Prop. 64 requires the destruction of records for marijuana arrest and convictions but only applies after a person has completed their sentence.
Tate stated that finality is important in criminal law as punishments and crimes are tied together. He stated that if the voters didn’t intend to include the current definition of murder at the time, he asked what they did intend.
He noted that Prop. 47 and 36 focused on reducing punishments but not eliminating the convictions.
Tate stated his focus is on the petition process. He doesn’t believe they have problems with the legislature making some changes to the scope of murder but taking apart decades of murder convictions is “inconsistent with the U.S. Supreme Court’s decision in Plough.”
He stated the remedy by SB 1437 is “remarkable” describing how there’s a hearing where both parties can present new evidence and if there is relief the murder conviction is waived. However, Tate noted, “A judge is going to impose a sentence without a jury sentence or plea.”
He noted this goes beyond the statute of limitations. SB 1437, Tate argued, ignores victim’s rights that are protected by Marcy’s Law and backed Prop. 115.
In the Lamoureux case, Tate noted that the defendant bought the weapon, kept the weapon and bragged about the weapon’s use in the murder. He also extended to gang cases, stating, “we can’t point to what everyone did but they’re dangerous people.” By eliminating this judgment of the risk of public safety a person has and the elimination of the murder conviction, Tate argued that SB 1437 did violate the separation of powers.
He noted that if the legislature can modify laws and judgments but the judges have the final say and the ability to display some discretion, there is some overlap that needs to be acknowledged.
Tate shared that SB 1437 could nullify thousands and thousands of murder convictions and, currently in Riverside County, they have 1300 who could be eligible and there were 200 petitions pending. He argued the statute was unprecedented.
Peterson returned to the stand, stating that the DA’s approach is incompatible to the Supreme Court’s Valencia opinion. In that case, there was statutory language that said, as used in this code, and it wasn’t enough by reference.
She also turned to the Supreme Court Chun and Chu opinions that, “the Supreme Court construed portions of the 1872 Penal Code in a manner that’s 100% inconsistent with the District Attorney’s theory that the ballot initiative.” Chun concerned 2nd-degree felony murder and abolished the theory Prop 7 and 115 changed 2nd-degree felony murder. In Chu, the Supreme Court said they can’t have murdered one on the national and probable consequences doctrine but in 1981 you could have.
Peterson noted the many cases where cases didn’t look at the textual provisions but rather the intent of the voters.
The court asked about how workable the solution SB 1437 offers is, considering the number of cases that needed to be considered. Peterson argued that, from the defense side, the answer is always with the legislature. If the DA finds the legislature does not work, then they must go to the legislature and ask for another solution.
Peterson also noted that finality is important in every law.
Richards returned another time stating that, if the remedy isn’t workable, that is a policy issue.
The opinions of the court for this case is expected to be submitted by Feb. 10, 2020.