Court Holds That SB 1437 Does Not Apply to Attempted Murder Convictions

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By Dominique Kato

A California Appellate Court held that the SB 1437, which amended the felony murder rule and the natural and probable consequences doctrine, does not apply to attempted murder, while the matter is currently still pending in the California Supreme Court.

Andres Lima appealed his judgment from the Superior Court of Los Angeles County, and claimed that the court reversed his conviction for attempted murder due to SB 1437 which removed the natural and probable consequences doctrine—even if the bill did not remove the natural and probable consequences doctrine as to attempted murder. The defendant argued that, even if this weren’t the case, the trial court and prosecutor committed misconduct by “using prospective jurors’ comments to bolster the prosecution’s factual theories and inflame the jury’s passions and biases.” The appellate court stated, “We agree with those cases that hold Senate Bill No. 1437 does not apply to attempted murder” and remanded the case back to the trial court to exercise its discretion whether to strike the defendant’s firearm enhancements and concluded that the defendant is entitled to 116 days of conduct credit.

A jury convicted Andres Lima of the premeditated attempted murder of Israel R and the assault of Omar O. by means of force likely to produce great bodily injury. The jury found true the allegations that in the attempted murder he had personally and intentionally discharged a firearm, causing great bodily injury. Further, they found he committed the offenses in association with a criminal street gang with “the specific intent to promote, further, and assist in criminal conduct by gang members.” The trial court sentenced the defendant to 32 years to life in state prison.

In the court opinion, the California Second District Court of Appeals stated that whether SB 1437 applies to attempted murder is still a pending matter in the California Supreme Court. They cite People v. Dennis, “Senate Bill [No.] 1437’s legislative prohibition of vicarious liability for murder does not, either expressly or impliedly, require elimination of vicarious liability for attempted murder.” The Appellate Court agreed and argued SB 1437 does not apply to cases of attempted murder.

The defendant claimed that, even if the court found SB 1437 didn’t apply to cases of attempted murder, they must reverse his conviction because the trial court failed to instruct the jury that “premeditated and deliberate attempted murder has to be a natural and probable consequence of the target crime.”

The defendant cites People v. Favor, which holds that there is no requirement that an aider and abettor reasonably predict an attempted premeditated murder as the natural and probable consequence of the target offense. It holds “that attempted murder is a reasonably foreseeable consequence of the crime aided and abetted” and that the attempted murder was committed willfully, deliberately and with premeditation. The defendant argues that the legislative interpretation conveyed by SB 1437 and decisions since Favor defeat this argument and that “Favor can no longer be viable”.

The defendant further cites People v. Chiu (2014) where the California Supreme Court concluded that a first degree premeditated and deliberate murder conviction for an aider and abettor cannot be based on the natural and probable consequences doctrine as a matter of law. The defense claims his argument is opposite to the California Supreme Court’s holding in Favor, and that Chiu did not overrule Favor, and that we are bound by Favor.

The Attorney General argues that they are bound by stare decisis to follow Favor and affirms the conviction for attempted premeditated murder. The Appellate Court held that they agree with both the defendant and the Attorney General that “we are bound by Favor.”

The defendant also argued that the U.S. Supreme Court’s holding in Alleyne undermines Favor. The Appellate Court responded in saying that Alleyne does not deal with the natural and probable consequences in a prosecution for attempted willful, deliberate, and premeditated murder, and argued we are bound to follow Favor. Further, the Appellate Court noted that “the continuing viability of Favor in light of Alleyne is a matter that is currently pending before the California Supreme Court.”

The defendant further contended the court should reverse his conviction for attempted murder because the trial court and prosecutor committed misconduct as the prosecutor referred to prospective jurors’ comments in her rebuttal argument “to bolster the prosecution’s factual theories and inflame the jury’s passions and biases.” The Appellate Court agreed the prosecutor committed misconduct, but concluded it was not prejudicial.

In the court’s opinion, they quote: “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’”

The defendant argued the prosecutor’s references to statements by prospective jurors were impermissible because the statements were not evidence admitted at the trial. He further argued the prosecutor improperly argued that “guilty verdicts would help reduce the ability of gangs to ‘target our youth,’ ‘go after the young boys and girls of our communities’ and ‘go after the teenagers and . . . make them do their dirty work.'”

The Appellate Court cited People v. Freeman (1994) in saying that it is misconduct for prosecutors to “quote individual jurors in their argument to the entire jury.” Further, “it does not follow that such conduct is necessarily prejudicial.”

The Court said, “We agree with the defendant that the prosecutor, during closing arguments, improperly argued facts not in the evidence and improperly quoted individual jurors.” However, they held that the misconduct was harmless because of the overwhelming evidence of guilt mentioned at trial.

The defendant further contends the trial court made an error in exercising its section 12022.53, subdivision (h) discretion, “by imposing the 25- years-to-life subdivisions (d) and (e)(1) enhancement,” as it relied on the fact that the case was serious, gang-related, and involved a shooting. However, that enhancement can only be imposed in a serious, gang-related case that involves a shooting.

The Appellate Court agreed that the court made an error in relying on the fact that the defendant’s attempted murder offense was gang-related and involved a shooting in declining to strike defendant’s section 12022.53. The Appellate Court remands this matter for the court to exercise “its informed sentencing discretion.”

The trial court observed that “using guns and shooting people because of gang activity is not what [Senate Bill No. 620] is all about.” The Appellate Court responded to this in saying the trial court “misperceived Senate Bill No. 620’s application, remand is appropriate so the court can exercise its informed discretion.”

At the defendant’s sentencing hearing, the prosecutor argued that the defendant was not entitled to any conduct credit because he was sentenced to a life term. The trial court awarded the defendant 777 days of presentence custody credit and no days of conduct credit.

The defendant argued that his conviction for a violent felony limits his conduct credit to 15 percent of his actual presentence custody, but his life term sentence does not bar an award of any credit.

In the Court’s opinion they cited People v. Duff: “The circumstance that a defendant is sentenced to an indeterminate sentence does not preclude the earning of presentence conduct credit.” The Attorney General agrees with this, and the Appellate Courts says, “So do we.” Accordingly, the defendant is entitled to 116 days of conduct credit.

The matter has been remanded to the trial court so it may exercise its discretion on whether to strike any of the defendant’s section 12022.53 firearm enhancements and the defendant was awarded 116 days of conduct credit. The judgment was affirmed in all other respects.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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