Aider and abettor found guilty of felony-murder special circumstance is not eligible for re-sentencing under SB 1437

People v. Gutierrez-Salazar, 38 Cal. App. 5th 411, 251 Cal. Rptr. 3d 178 (Ct. App. 2019), reh’g denied (Aug. 30, 2019)

Defendant Dionicio Gutierrez-Salazar was by a jury of two murders for homicides committed in 2013 and 2015. As to the 2013 homicide, defendant was convicted of first degree murder on a felony-murder theory.

SB 1427 Amends Felony Murder Rule in California

Senate Bill No. 1437 which became effective on January 1, 2019, amended the felony-murder rule in California “and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” It amended sections 188, which defines malice, and 189, which defines the degrees of murder to address felony-murder liability.  .

Requirements for petitions for re-sentencing under 1170.95

Section 1170.95 permits those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the

petitioner’s murder conviction vacated and to be resentenced on any remaining counts ….”

A petition under section 1170.95 requires that: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine;

(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder; and

(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).)

Procedures after filing a Re-sentencing Petition

 A trial court receiving a petition under section 1170.95 reviews the petition to determine if the petitioner has made a prima facie showing that the petitioner falls within its provisions.

If a prima facie showing is made, the court issues an order to show cause.” The trial court must then hold a hearing to determine whether to vacate the murder conviction, recall the sentence and resentence the petitioner on any remaining counts, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)

The parties may agree stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing without a hearing. 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, requires the court to vacate the petitioner’s conviction and resentence the petitioner. (§ 1170.95, subd. (d)(2).)

If a hearing is held, “[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Id., subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) “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.” (Ibid.)

A felony-murder special circumstance found true by the jury bars relief under SB1437

The jury instructions given to convict defendant of first degree murder in the 2013 homicide were pursuant to a felony-murder theory and the natural and probable consequences doctrine, as both were defined prior to the effective date of Senate Bill 1437. In this case the jury found true a felony-murder special circumstance under section 190, subdivision (a)(17) with regard to the 2013 murder.

Felony-murder special circumstance under section 190

“In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill, or the People must prove all of the following:

“1. The defendant’s participation in the crime began before or during the killing;

“2. The defendant was a major participant in the crime;

“AND

“3. When the defendant participated in the crime, he acted with reckless indifference to human life.” (CALCRIM No. 703.)

The special circumstance instruction tracks the language of Senate Bill 1437 and the new felony-murder statutes. (See In re Taylor, supra, 34 Cal.App.5th at p. 561. Because the jury found true the special circumstance allegation, any potential post-Senate Bill 1437 instructional error related to the felony-murder rule and the natural and probable consequences doctrine would be harmless beyond a reasonable doubt because the jury made the requisite findings necessary to sustain a felony-murder conviction under the amended law.

Since the defendant could not benefit from a retroactive application of Senate Bill 1437, the Court simply denied relief on this appeal.