Legislative Update: Senate Bill 1437 Significantly Changes Murder Liability in California

On September 30th, Governor Brown signed Senate Bill 1437, a bill that drastically changes the ways in which the government can charge someone with murder, as I will explain below. Importantly, this bill not only changes how the law will apply to current and future defendants, it is retroactive, meaning that people who are currently serving sentences for murder that rested on theories that are no longer valid will have an opportunity to petition the court to have their charges and sentences changed or thrown out all together.

First, what changes does SB 1437 create? Simply put, the only way, with a very narrow set of exceptions, someone can be convicted of murder in California now is if they were a direct participant in the murder or aided and abetted a direct participant and shared the direct participant’s specific intent to kill.

Previously, prosecutors could charge someone with murder under a felony murder theory or a natural and probable consequence theory even if they were not direct participants or did not share in the killer’s intent.

The felony murder rule allowed prosecutors to charge any participant in a delineated list of inherently dangerous felonies with murder if someone was killed in the course of the crime even if the person charged was not the killer and had no intent to kill. A narrow exception still allows people to be charged under a felony murder rule if two conditions are met. The person has to be a “major participant” in the underlying felony and to have acted with reckless indifference to human life. Many if not most felony murder prosecutions will not meet this standard as the theory is most often used in crimes where one participant in a crime kills someone unexpectedly. It is my belief that prosecutors will essentially try to prove the “reckless indifference” element by relying on the defendant’s participation in the underlying felony, but I believe they will face an uphill battle.

The natural and probable consequences doctrine is a similar, but different theory in which a prosecutor alleges that a defendant participated in an underlying crime and that a murder occurring was a natural and probable consequence of that underlying crime. It is often used in gang prosecutions. For example, a car full of gang members drives into rival territory, a murder occurs, and everyone in the car is charged essentially because the defendant “should have known” such an event was probable. Another example would be a group of people engaging in a gang fight in which someone is killed. Prosecutors will often charge everyone involved in the fight with murder, again under the theory that they “should have known” such an event was probable.

Under the new law, prosecutors would be required to prove that those who did not participate in the killing directly aided and abetted the killer and did so with a reckless indifference to human life.

Ultimately, what the bill accomplishes is a greater proportionality between the crime a person can be charged with and their moral culpability in the crime.

It is estimated that there may be as many as 800 inmates currently serving sentences on murder charges who were convicted under a felony murder or natural and probable consequence theory. If you or a loved one believes that this change in the law may affect your case, I would urge you to contact my office immediately for a consultation as there may be significant relief available to you.

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