Changes to Accomplice Liability for Murder
Effective .January I, 2019, the Legislature has made a significant change in the felony
murder and natural and probable consequences law with respect to the liability of accomplices
who did not perform the homicidal act. The new law has also arguably abrogated the second
degree felony murder rule. The changes are as follows.
In order to obtain a felony murder conviction for a non-killer, the prosecutor must now
prove that the accomplice either: (I) acted with the specific intent to kill; or (2) was a major
participant in the underlying felony and acted with reckless indifference to human life, as
described in Penal Code section 190.2, subdivision (d). (Penal Code section I89, subds. (e)(2)
and (e)(3).) However, the new requirements do not apply when the accomplice knew or should
have known that the victim was a peace officer engaged in the performance of his or her duties.
(Section 189, subd. (f).)
With regard to a natural and probable consequences theory, liability for aiding and
abetting a felony can lead to a murder conviction if the above referenced requirements are met.
However, the new law has abrogated liability for aiding and abetting a misdemeanor. In material
part, Penal Code section 188, subdivision (a)(3) provides that malice must be proved in every
murder case except as stated in section 189, subdi vision (e). Insofar as the latter statute allows for
conviction only when a " felony" is involved, it follows that a natural and probable consequences
theory is no longer available when the underlying crime is only a misdemeanor.
lt is also important to note that the new law has arguably abrogated the second degree
felony murder rule. As noted above, malice is an element of every murder theory with the
exception of those kiIIings perpetrated in the course "of a felony listed in subdivision (a)" of
section 189. (Section 189, subd. (e).) Insofar as the listed felonies do not include those that are
commonly employed in a second degree felony murder case, the implication is that the second
degree felony murder rule is no longer with us.
The Legislature has provided for the retroactive application of the new requirements.
Pursuant to the newly enacted Penal Code section 1170.95, a defendant may file a petition in the
sentencing court in order to chall enge a murder conviction. A challenge lies regardless of
whether the conviction was obtained by trial or plea. There is no time limit within which the
petition must be brought. Upon request, the court is required to appoint counsel for the petitioner.
If the prosecutor disputes the petitioner's entitlement to relief, a hearing must ensue in which the
prosecutor bears the burden of proving beyond a reasonable doubt that the petitioner is liable
under the new law. The parties "may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens." (Section 1170.95, subd. (d)(3).) If the court grants
relief, the remedy is to redesignate the conviction as "the target offense or underlying felony for
resentencing purposes." (Section 1170.95, subd. (e).) The redesignation is to occur even if the
target offense was not charged in the original prosecution.
For present purposes, the threshold question is whether the new law applies to pending
appeals or whether the petition process will be deemed to be the exclusive remedy. Although the
parallel is not an exact one, the Supreme Court held in the context of Proposition 36 that the new
sentencing provisions for the Three Strikes law could not be invoked on a pending appeal since
the initiative otherwise created a petition process to be pursued in the trial court. (People v.
Conley (2016) 63 Cal 4th 646, 651-652.) The same result appears likely with regard to SB 1437
since the petition process includes the possibility of taking new evidence. (!d. at pp. 658-659
[petition process was deemed to be the exclusive remedy since the new law required findings by
a trial court judge before the petitioner could be released].) Nonetheless, Conley can certainly be distinguished. Under SB 1437, the Legislature has
made a favorable change regarding the elements of the offense. Traditionally, the defendant is
entitled to argue on a pending appeal that his conviction must be reversed due to the change in
the elements. (People v. Ramos (2016) 244 Cal.App.4th 99, I02-104.) This circumstance applies
Moreover, a viable argument might be made for relief on a pending appeal on the grounds
that the petition process would be a waste of time. Section 1170.95 mandates the granting of a
remedy when there was "a prior finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant in the felony ... " (Section
1170.95, subd. (d)(2).) Such a finding would exist if the trier of fact rejected a special
circumstance allegation. In this situation, it makes little sense to require a trial court proceeding
since the result is a foregone conclusion.
If the issue is litigated on appeal, the Attorney General might well contend that reversal is
not required since the omission to instruct on the new element of the offense can be deemed
harmless under the Chapman standard. (Neder v. United States (1999) 527 U.S. 1, 4 [error in
failing to instruct on an element or the offense requires application of the Chapman standard];
accord, People v. Merritt (2017) 2 Cal. 5th 819, 822.) While there is some authority for the
proposition that the error is reversible per se since the defendant has been denied a jury trial
(Ramos, supra, 244 Cal.App.4th at pp. 103-104), there is no guarantee that this result will obtain
in other courts.
In any event, counsel should consider the pros and cons of litigating the SB 1437 issue on
appeal. ln particular, appellate counsel should confer with trial counsel in order to determine the
lay of the land in the trial court with respect to the attitude of the prosecutor and trial judge and
the possibility that helpful evidence might be introduced at a section 1170.95 hearing. Depending
upon the circumstances or the particular case, counsel might rationally wish to avoid an adverse
appellate decision that could conceivably have law of the case implications with regard to any
subsequent section 1170.95 proceeding.
Aside from the question of whether the SB 1437 issue should be raised on a pending
appeal, there is the related issue of whether counsel should seek a stay of the appeal in order to
promptly pursue relief in the trial court pursuant to the section 1170.95 procedure. In cases
involving Proposition 47, it has been he ld that the Court of Appeal has the authority to issue a
stay so that trial court petition proceedings can be conducted. (People v. Awad (2015) 238
Cai.App.4th 215, 223-225.) No reason appears why the same procedure cannot be employed
under SB 1437.
Once again, counsel should give careful consideration before seeking to stay the appeal.
There may be reasons to obtain adj udication in the Court of Appeal. For example, if counsel has
advanced a strong sufficiency of the evidence issue with regard to a murder conviction, a
favorable appellate decision might well be a quicker and more effective remedy. Similarly, if
there is some other challenge to the murder conviction that might lead to a reversal, it could
conceivably be more advantageous to return to the trial court for a new trial rather than a section
1170.95 proceeding. All of these determinations will have to be made on a case by case basis.
It is worth noting that the section 1170.95 procedure poses at least two constitutional
questions. First, the trial court is vested with the authority to take new evidence and render
factual findings regarding the new e lement of the offense. There appears to be a viable argument
that the defendant is entitl ed to a jury trial regarding the freshly minted element. (Ramos, supra,
244 Cai.App.4th 99, I02-104.) In requesting a jury trial, counsel will have to carefully
distinguish People v. Perez (2018) 4 Cal.5th I055 in which the Supreme Court ruled that the
Sixth Amendment does not apply to Proposition 36 proceedings where there is a factual issue
regarding the nature of the offense for which the defendant is incarcerated. (!d. at pp. 1061-
1064.) Perez can be distinguished on the grounds that Proposition 36 is a "resentencing" scheme
whereas SB 1437 requires the adjudication of elements of the offense. Such adjudication is
manifestly within the province of a jury.
Second, there may be a complicated ex post facto issue with regard to the remedy
required by section 1170.95. If the murder conviction is vacated, the court must impose
punishment for the "target offense" even if that offense was not originally charged. (Section
1170.95, subd. (e).) Under settled law, the double jeopardy clause of the federal Constitution
would bar a belated prosecution for the target offense. (Harris v. Oklahoma (1977) 433 U.S. 682,
682-683 [where the defendant was convicted of felony murder based on a robbery, the state was
precluded from bringing a second prosecution for the robbery which had not been charged in the
initial case].) However, the remaining question is whether the Constitution permits the state to
rely on the existing record in order to retroactively punish a defendant for a previously uncharged
crime. The answer is less than clear.
Ordinarily, an appellate court may order the trial court to reduce a defendant's conviction
to a lesser included offense when there was insufficient evidence to prove the greater offense.
(People v. Malian (1995) 35 Cal. App.4th 480, 487.) This rule applies even if the lesser inc luded
offense was not charged. (Ibid.) Presumably, this scenario does not pose any constitutional
problem since the jury has necessari ly found the elements ofthe lesser included offense to have
been satisfied. However, in order to protect the defendant's due process right to notice of the
charges, an appellate court is precluded from reducing the conviction to a non-lesser included
offense. (People v. Lagunas (1994) 8 Cal.4th I030, I039.)
Interestingly, it does not appear that the felony underlying a felony murder charge is a
lesser included offense. Although the case has been depublished and cannot be cited, People v.
Craig (1995) 47 Cai.App.4th 626 indicated that robbery "is not a genuine lesser included
offense" of felony murder. (ld. at p. 645.) This is so since a felony murder does not necessarily
require the commission of a robbery. Rather, the commission of other enumerated felonies will
Against this backdrop, ex post facto principles come into play. The central protection of
the ex post facto clauses of the federal Constitution is that a defendant may not be retroactively
punished pursuant to a law that did not exist at the time that his crime was committed. (Stogner
v. California (2003) 539 U.S. 607, 612-613.) Plainly, section 1170.95 is a new statute that will be
retroactively applied to trials held in the past.
Assuming that Craig states the correct rule, the following argument might be made. In a
trial held prior to the passage of section 1170.95, the defendant would have had no notice that he
faced liability for the uncharged felony underlying the murder allegation. Since there has been an
absolute bar on a reduction to non-lesser included offenses, a defendant quite simply did not
know that he faced a risk of punishment for the uncharged felony. Viewed from this perspective,
the ex post facto provisions of the federal Constitution preclude the retroactive application of
(December 26, 2018)
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