Bill Text: CA SB1437 | 2017-2018 | Regular Session | Amended
Bill Title: Accomplice liability for felony murder.
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Passed) 2018-09-30 - Chaptered by Secretary of State. Chapter 1015, Statutes of 2018. [SB1437 Detail]
Download: California-2017-SB1437-Amended.html
Amended
IN
Assembly
August 20, 2018 |
Amended
IN
Senate
May 25, 2018 |
Senate Bill | No. 1437 |
Introduced by Senators Skinner and Anderson (Principal coauthor: Assembly Member Gipson) (Coauthor: Senator Wiener) (Coauthors: Assembly Members |
February 16, 2018 |
LEGISLATIVE COUNSEL'S DIGEST
Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.
This bill would include in the list of serious felonies the commission of a felony inherently dangerous to human life wherein a person was killed.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:SECTION 1.SEC. 2.
Section 188 of the Penal Code is amended to read:188.
(a) For purposes of Section 187, malice may be express or implied.SEC. 2.SEC. 3.
Section 189 of the Penal Code is amended to read:189.
(a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.(a)Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after November 7, 2012, but before January 1, 2019, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on November 7, 2012.
(b)Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after January 1, 2019, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on January 1, 2019.
(a)Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, statewide general election for all offenses committed on or after November 7, 2012, but before January 1, 2019, all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed on November 7, 2012.
(b)Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, statewide general election, for all offenses committed on or after January 1, 2019, all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they read on January 1, 2019.
(a)(1)It is the intent of the Legislature that district attorneys prosecute violent sex crimes under statutes that provide sentencing under a “one strike,” “three strikes” or habitual sex offender statute instead of plea bargaining those offenses.
(2)Plea bargaining in a case in which the indictment or information charges a serious felony, a felony in which it is alleged that a firearm was personally used by the defendant, or an offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people’s case, or
testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.
(3)If the indictment or information charges the defendant with a violent sex crime, as listed in subdivision (c) of Section 667.61, that could be prosecuted under Sections 269, 288.7, subdivisions (b) through (i) of Section 667, Section 667.61, or 667.71, plea bargaining is prohibited unless there is insufficient evidence to prove the people’s case, testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. When presenting the agreement to the court, the district attorney shall state on the record why a sentence under one of those sections was not sought.
(b)As used in
this section “plea bargaining” means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments,
concessions, assurances, or consideration by the prosecuting attorney or judge relating to a charge against the defendant or to the sentencing of the defendant.
(c)As used in this section, “serious felony” means any of the following:
(1)Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any
felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or an explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or an explosive with intent to murder; (18) burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state
prison for life; (23) a felony in which the defendant personally used a dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) a felony offense that would
also constitute a felony violation of Section 186.22; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or
(d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) an attempt to commit a crime listed in this subdivision other than an assault; (40) a violation of Section 12022.53; (41) a violation of subdivision (b) or (c) of Section 11418; (42) any felony that is inherently dangerous to human life in which a person was killed, and (43) any conspiracy to commit an offense described in this subdivision.
(d)As used in this section, “bank robbery” means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another property, money, or any other thing of value belonging to, or in the care, custody, control, management, or possession of, a bank, credit union, or savings and loan association.
As used in this subdivision, the following terms have the following meanings:
(1)“Bank” means a member of the Federal Reserve System, a bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and a bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
(2)“Savings and loan association” means a federal savings and loan association and an “insured institution” as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.
(3)“Credit union” means a federal credit
union and a state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union administration.
(e)The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.
(a)A defendant may submit a request to have his or her conviction vacated and petition for resentencing when all of the following conditions apply:
(1)A complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine.
(2)The defendant was sentenced to first degree or second degree murder or accepted a plea offer in lieu of a trial at which
the defendant could be convicted for first degree or second degree murder.
(3)The defendant could not be convicted of first degree or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.
(b)The petition shall include a declaration by the petitioner that he or she believes that he or she is eligible for relief under this section, based on all of the requirements of subdivision (a).
(c)Upon receipt of the petition, the court shall provide notice to the attorney who represented the petitioner in the superior court, or to the public defender if the attorney of record is no
longer available, and to the district attorney in the county in which the petitioner was prosecuted. The notice shall inform those parties that a petition had been filed pursuant to this section and that a response from both parties as to whether the petitioner is entitled to relief is required to be filed within 60 days.
(d)(1)If the court finds that there is sufficient evidence that the petitioner falls within the provisions of this section, the court shall hold a resentencing hearing to determine whether to recall the sentence and commitment previously ordered and to resentence the petitioner in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
(2)The court shall inform the petitioner’s defense counsel and the district attorney in the county in which the petitioner was prosecuted and sentenced that the petitioner is entitled to a resentencing hearing.
(3)The parties may waive a resentencing hearing and stipulate that the petitioner is eligible
to have his or her sentence vacated and for resentencing. If 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, the court shall vacate the petitioner’s conviction and resentence.
(4)If the petitioner was charged with or convicted of first degree murder under a theory of felony murder, the petitioner shall have the initial burden of going forward with evidence that he or she was not the actual killer, did not act with the intent to kill, and did not act as a major participant with reckless disregard for human life in the commission of the felony. If the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor may rely on the record of conviction to meet its burden, but the petitioner may offer new or additional evidence to meet the burden of
going forward or in rebuttal of the prosecution’s evidence.
(5)If the petitioner was charged with or convicted of second degree murder under a theory of felony murder or the natural and probable consequences doctrine, the petitioner shall have the initial burden of going forward with evidence that he or she did not personally commit the homicidal act. If the defendant meets the burden of going forward with the evidence, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor may rely on the record of conviction to meet its burden, but the petitioner may offer new or additional evidence to meet the burden of going forward or in
rebuttal of the prosecution’s evidence.
(e)This section does not authorize a court to remove a strike from the petitioner’s record.