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October 18, 2018

California's notable recent retrenchment of its felony murder rules

Our final subject in the homicide unit will lead us to review the (in)famous doctrine of felony murder.  As is always the case, you will only eventually be expected to know about the MPC and Ohio approaches to this doctrine.  But you should be intrigued to learn that California, less than a month ago, significant amended its felony murder provisions.  Some details of the change are explained officially here and in this way:

Existing [California] law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping. Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Existing law defines 2nd degree murder as all murder that is not in the first degree and imposes a penalty of imprisonment in the state prison for a term of 15 years to life.

This bill would prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

This recent local article about this legislative change highlights, in part, the impact of its retroactive provisions under the headline "Change in California law will set convicted killers free - because they didn't actually kill anyone." Here are excerpts:

Defense lawyers say the reform is long overdue and more fairly fits the punishment to the crime. Prosecutors worry that criminals won’t be held accountable when their actions cause a death. “California’s felony murder law was one of the harshest in the country,” said longtime criminal defense attorney Eugene Iredale.“This is a major step in making sure criminal justice is consistent with moral propriety. Punishment should be consistent with culpability, on the basis of crimes you actually commit, not of accident.”

The felony murder rule comes from centuries-old British common law. It says, in essence, if you took part in a felony and someone died, you could be convicted of murder. It didn’t matter whether you were the one who killed the person, or if you had no intention of harming anyone.

In California, a killing that is intentional and premeditated is first-degree murder, with a sentence ranging from 25 years to life in prison up to the death penalty in certain cases. But the state’s version of the felony murder rule sidesteps the question of intent to define other homicides as first-degree murder if they occurred during the commission of specific felony crimes including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping.

That rule underwent a major overhaul on Sept. 30, when Gov. Jerry Brown signed Senate Bill 1437, called “Accomplice liability for felony murder.” It goes into effect Jan. 1. Under the revision, only people who aided or were a “major participant” in a killing, or showed reckless disregard for human life, can be charged with felony murder. For instance, a robbery getaway driver, unaware that his accomplice just killed someone, might be charged only for having a role in the robbery.... The law goes further, with a retroactive aspect that allows inmates convicted under the current felony murder rule or the natural and probable consequences doctrine to petition the trial court to have their convictions vacated. “That, to me, is one of the biggest concerns,” said Chief Deputy District Attorney David Greenberg. “Our ability to hold people accountable for murder will be compromised.”

If a felony murder conviction is vacated, inmates could be re-sentenced for whatever felony they were committing when the killing happened. But they may well have already served the amount of time they would get for the lesser crime. If so, they would be released from prison. Greenberg said county prosecutors may have secured as many as 300 felony murder convictions going back to the 1980s and 1990s. Not all would result in petitions for release from prison — many of the convicts have already been been paroled, or could be deceased.

Greenberg prosecuted the trio convicted of murder in the killing of acting student John Lentz in Balboa Park in 1994. A 17-year-old girl shot Lentz several times from a pickup driven by a man who was looking for someone to rob. Ray Waldrop, in the backseat, was convicted of felony murder because he was in on the robbery plan. A jury found specifically that Waldrop was not a major participant in the killing. Because of that finding, he can ask the court next year to vacate his felony murder conviction. “I don’t have an argument about him being a major participant,” Greenberg said. “There is nothing for me to argue, nothing to fight.”

If Waldrop is re-sentenced on the remaining robbery charge, he could get a five-year term at most. He’s already served 23 years, so he would be eligible for release, Greenberg said....

The bill was co-authored across the political aisle by senators Nancy Skinner, D-Berkeley, and Joel Anderson, R-Alpine. Anderson, known as a political conservative, emailed a statement to The San Diego Union-Tribune, saying: “Victims don’t want vengeance, they want justice. It’s unjust to charge people with murder who had nothing to do with the actual murder.”...

Defense lawyer Robert Grimes said the felony murder rule was never fair. “Now, these matters will be evaluated on a case-by-case factual analysis by juries and judges,” Grimes said. “You get these impulsive young guys locked up for life because a robbery went bad and they didn’t really foresee someone would get killed,” he said. “In California, there has been a reassessment of the utility of certain mandatory (sentencing laws) and fairness. We are giving trial judges back discretion.”

UPDATE: Here is another notable new press piece about California notable new felony murder law headlined "Nearly a Decade Awaiting Trial, Now Freed: Neko Wilson to be released in the first test of California’s felony murder law." Here is how the piece gets started:

In the first test of a newly signed law that significantly narrows California’s felony murder rule, a judge [on Thursday] ordered the immediate release of a man who has spent nearly a decade awaiting trial in double murder. Neko Wilson, now 36, had initially faced the death penalty in connection with the July 2009 murders of Gary and Sandra DeBartolo, a couple killed during a robbery at their home in California’s Central Valley.

Prosecutors had accused Wilson of helping plan the robbery, not of killing the couple. He initially faced the death penalty under a legal doctrine known as the felony murder rule, which holds that anyone involved in certain types of serious felonies that result in death can be held as liable as the actual killer. But a new law signed by Gov. Jerry Brown in September significantly narrowed that doctrine and prompted prosecutors to drop the murder charges against Wilson.

“It’s overwhelming,” said Jacque Wilson, who is Neko Wilson’s brother and his lawyer, as he stood outside the courtroom immediately after hearing Judge John F. Vogt’s decision. “You go from being someone the state wanted to kill, to someone who’s coming home.” In court, Neko Wilson agreed to a plea deal on robbery charges, as well as charges in unrelated cases. The total sentence for those charges added up to nine years, the amount of time he’s already been jailed awaiting trial.

The prosecutor, William Lacy, senior deputy district attorney in Fresno, said the new law had left prosecutors little choice. “It’s a new world we live in,” Lacy said. “It certainly means that people who were charged with murder previously won’t be charged.”

October 18, 2018 in Current Affairs | Permalink


Although Neko Wilson faced the death penalty under CA's felony murder sentencing guidelines, I assume a jury would never actually sentence him to death, right? I can’t image a jury would take such extreme measures to punish someone who played a relatively small role in the robbery leading to the murders. That being said, the mere fact that a jury has the option to put someone like Neko Wilson to death is pretty unsettling. I’m glad the doctrine is being narrowed.

Posted by: Hannah Wirt | Oct 21, 2018 4:59:19 PM

Felony murder is being used in Georgia after a police officer was killed over the weekend: https://www.nytimes.com/2018/10/21/us/officer-shot-gwinnett-county.html. Georgia's murder provision: https://law.justia.com/codes/georgia/2017/title-16/chapter-5/article-1/section-16-5-1/.

Posted by: Evan Lewis | Oct 22, 2018 2:21:20 PM

Great job including a link to the Georgia murder statute. But the latest news indicates a trial will not be forthcoming: "Suspect in Georgia officer's death shot, killed"

Posted by: Doug B. | Oct 22, 2018 2:38:11 PM

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