It is a DA’s office that has long tried to claim the mantle of progressiveness, even though the DA was clearly outflanked and nearly defeated by a far more progressive alternative in 2018. Somehow both the Davis and Sacramento media bought into the narrative told by DA Jeff Reisig.
But times are changing fast and, while the progressive mantle never really fit a DA that has opposed almost all of the major criminal justice reforms in the state over the last decade, that picture has never been more clear than now, never more clear than on SB 1437.
Felony murder may not seem like the issue that defines us – it is not like police use of force, bail reform, or prosecutorial misconduct. But there is an inherent injustice that someone who may have been committing a felony ends up being on the hook for murder based only on the actions of someone else – when they may not have pulled the trigger, may not have known about the murder, might not have even been there.
SB 1437 was a legislative attempt to fix the problem – it attacks cases where the person was really not involved, while attempting to leave it in place when they were. Felony murder remains in place for those who were the actual killer, were major participants, or who acted in reckless disregard for human life – but it removes it from the others.
DAs fought back even against what seems to be common sense – they argued this unconstitutionally changes two propositions. But the handwriting is on the wall in terms of constitutionality. The AG’s office in their response brief in Davidson takes the position that SB 1437 is constitutional and they make a strong case that Prop. 7 “set the penalties for murder,” rather than “the elements of the crime.”
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.”
Meanwhile, SB 1437 “changed the culpability required to convict for felony-murder and the ‘natural and probable consequences’ doctrine.”
That puts them at odds with various district attorney’s offices.
For instance, Vern Pierson, the El Dorado County DA, has filed an amicus curiae in the Davidson case, drawing issue with the fact that the AG conceded constitutionality even as it argued applicability in the Davidson case.
He argues that SB 1437 is unconstitutional because “[i]t unlawfully narrows and shortens long-standing murder sentencing laws that the people overwhelmingly voted to broaden and lengthen. It amends laws passed by the people in Proposition 7… despite the fact that no authority was reserved for the Legislature to make amendments to Prop. 7.”
He further argues that SB 1437 “amends laws passed by the people in Proposition 115 despite failing to meet the two-thirds vote requirement to amend expressed in that initiative.”
But this is at odds with not only the AG’s office, but also the only appellate court ruling on the case.
The Fourth District Court of Appeals in two cases in November followed that reasoning, ruling “the elements of an offense and the punishment for an offense are not synonymous.
“[SB 1437] did not address punishment at all. Instead, it amended the mental state requirements for murder, which ‘is perhaps as close as one might hope to come to a core criminal offense “element.’’’ Thus, Senate Bill 1437 presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative.”
Last month, following that ruling, courtrooms in Yolo County, which have been far more conservative on this issue than in a number of other counties, reversed themselves. On Thursday, in the case of James Olague and Ernesto Arellano, two men convicted of murder for their roles in the 2002 Halloween homicides in Woodland, and two men long believed by many to have had nothing to do with this crime, saw their case go back before Judge Paul Richardson.
Judge Richardson ruled that the Fourth Appellate District ruling was binding on the Yolo County court. And that SB 1437 did not unconstitutionally amend either proposition.
Where does the Yolo County District Attorney fit into this fight? On Thursday, Deputy DA Ryan Couzens continued to maintain that SB 1437 is unconstitutional. He acknowledged that the two rulings from November out of the Fourth Appellate District remain the law of the land. However, he said the DA’s office had filed writs on that ruling and others.
Without any sort of formal response, the Third District has now issued denials on all of those writs. They have not yet issued a ruling on Davidson, the underlying matter before the court – but it seems there, too, the handwriting is on the wall. (For more information on Davidson – you can listen to attorney Jennifer Mouzis discuss it on our podcast).
SB 1437 has once again put the Yolo County DA on the rearguard defense of the status quo rather than being an agent of change in our system. And, increasingly, they are not only on the rearguard defense, but they are out of step with the rest of the state.
Deputy DA Ryan Couzens in November wrote that, while AB 991 was unanimously passed as clean-up language for SB 1437, “SB 1437 was never legitimately passed in the first place.”
It is notable that in opposing constitutionality for SB 1437, Mr. Couzens, clearly representing the views of District Attorney Jeff Reisig and his office, not only finds himself at odds with the AG’s office and the Fourth District Court of Appeal, but also with his own father.
Retired Judge J. Richard Couzens of Placer County writes in a memo in November that the court would “reject each of the constitutional challenges the People raise in the current case.” He added that “the opinions determine that SB 1437 was lawfully enacted by the Legislature.”
He writes, “Not only is this court bound to follow the decision of a higher court on the issues presented here, this court finds the reasoning of the higher court to be a valid and a proper interpretation of the law.”
For those of us who have long been arguing that the Yolo County DA is out of step with the direction of the state, here is more evidence of just how far out of step they actually are.
—David M. Greenwald reporting