DAs Contest Constitutionality of CA’s New Felony Murder Rule

By: Cassandra Wilkins

“It was heaven on earth,” said San Francisco Public Defender Jacque Wilson remembering his brother Neko’s storied release in October 2018 under Senate Bill (SB) 1437’s drastically narrowed felony-murder rule, which was signed into law September 30th, 2018 and went into effect on January 1st, 2019. “He went from initially facing the death penalty to walking out of Fresno County jail.” 

Under the old felony murder rule, anyone involved in a crime was responsible if a death ocured. Neko Wilson faced the death penalty for a robbery that led to the deaths of a couple in Fresno County, but no one accused him of killing anyone or even in being in the couple’s home that evening. Prosecutors said that he helped plan the break-in, and that was enough for him to be charged with felony murder. Now, because of SB 1437, murder charges are now limited to people who actually killed, intended to kill or acted as a major player with “reckless indifference to human life.” 

There are now hundreds of resentencing petitions for relief from murder convictions, like the one used to free Neko Wilson, that are being filed under SB 1437, including 115 petitions in Santa Clara County alone. Apart from the additional effort required by revisiting old cases, some of which date back more than 30 years, California’s prosecutors did not waste much time after the bill took effect in January to challenge the landmark legislation. Their main challenge: constitutionality.

A September 2018 letter to then-Governor Jerry Brown from the California District Attorneys Association, signed by 41 counties, implored Governor Brown to veto SB 1437 on the grounds that the bill violates the state constitution. Their opposition delays verdicts on pending SB 1437 resentencing petitions. Most likely, the California Supreme Court will have to resolve the constitutional issue before delays are eased.

According to David Kaiser, a research fellow for the California Constitution Center at the University of California, Berkeley, the crux of the issue is two-fold: the alleged constitutional violation and policy behind that protection.

Article II, Section 10(c) declares that the legislature may amend a voter-enacted law by a ballot initiative unless the statute allows otherwise. Voters approved several murder-related initiatives, including Proposition (Prop) 7, which increased the penalties for felony-murder, and Prop 115, which expanded the list of felonies under the felony-murder scope. The felony-murder doctrine allowed prosecutors to charge defendants with first-degree murder for a killing that occurred in the commission of a felony, even if the defendant didn’t actually intend to kill. In the veto letter to Governor Brown, opposing prosecutors argued that SB 1437 changes the scope and definition of murder under Prop 7 without electoral approval.

On top of that, there is a separation of powers argument, said David Angel, Santa Clara County Assistant District Attorney. For Angel, like many other district attorneys, the underlying concern is that SB 1437 can greatly undermine California’s robust initiative system, which he points out is stronger than most other states.

“If all that needs to happen for the initiative to be overturned is through a majority in the legislature, then you don’t really have an initiative process anymore,” he said. “Without that, you don’t really end up with a functioning democracy.”

The courts, however, are far from reaching a consensus. Orange, Yolo and Calaveras counties have ruled that SB 1437 is unconstitutional. Judges in San Diego, El Dorado and San Mateo concluded otherwise. Decisions are split, even among judges within the counties of San Luis Obispo, Fresno and Ventura.

Kaiser is not surprised.

“This is a complicated, messy issue,” he said. “To prevail, [district attorneys] would have to show that there’s something in SB 1437 that’s directly impacting these ballot initiatives. But it’s not clear that the way that SB 1437 has changed things necessarily changes [what Prop. 7 did].”

After working on his brother’s case for eight years, Wilson joined forces with Re:Store Justice, a non-profit organization dedicated to criminal justice reform, to work with Senator Nancy Skinner to author the final versions of SB 1437. Wilson insisted that drafters of the bill carefully considered its language to avoid any conflicts with Props 7 and 115, knowing that constitutionality may raise concerns from the opposition. 

Instead, Wilson suspected that the fight on constitutionality may be rooted in the fact that SB 1437 restricts how district attorneys can use the felony-murder rule to obtain first-degree murder convictions. He suggested supporters of SB 1437 are hopeful that the tide will remain in their favor, especially now that Xavier Becerra, California’s Attorney General, has joined the fray.

“The highest D.A. in the state is the Attorney General,” Wilson said. “Granted 40 of the 58 counties have set their position as unconstitutional, [but] the D.A. who is their boss says it is constitutional.”

Becerra’s office, which was not available for comment, has already filed amicus briefs in multiple cases supporting SB 1437’s constitutionality. In the briefs, Becerra argues that Props 7 and 115, and SB 1437, touch on entirely separate aspects of felony-murder. 

Prop 7 centers on the punishments for a murder conviction. SB 1437 deals with the elements of the crime. In the same vein, Prop 115 “added … to list of predicate felonies for murder in [Penal Code] section 189. It did not restrict the Legislature’s authority to change the culpability requirement to convict for murder.”

The Attorney General is scheduled to present an oral argument at the Fourth District Court of Appeal this month and Kaiser is looking to those decisions to indicate whether SB 1437 will eventually find its way to the California Supreme Court.

“If you have conflicting opinions in the different appellate districts, that ensures that the California Supreme Court is going to step in,” he said. “There have been some relatively high profile cases that the court ended up declining. [But] I would be surprised if this didn’t make its way up.” 

(Editor's Note: This article was originally published in the December 2019 [Volume 50, Issue 2] version of The Advocate.)