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Resentencing Relief Under Section 1172.6 Is Not Available To An “Actual Killer”

THE PEOPLE, Plaintiff and Respondent, v. ALBERT GARCIA, Defendant and Appellant. (Cal. Ct. App., Sept. 2, 2022, No. C093430) 2022 WL 4007827, at *1

Summary: Garcia physically assaulted and stole money from an 82-year-old man, who died about an hour later from lethal cardiac arrhythmia. A jury found Garcia guilty of first degree murder (Pen. Code, § 187)1 and robbery (§ 211). The trial court sentenced him to  27 years to life in prison, and the Court of Appeal  affirmed the judgment in an unpublished opinion noting that the prosecution’s theory was felony murder, and concluded that the felony-murder rule applied to the facts of this case because there was substantial evidence the robbery, either the physical altercation or the emotional stress, caused the victim’s death.

In 2019, after the passage of Senate Bill No. 1437 which narrowed the class of persons liable for felony murder, Garcia  petitioned for resentencing under section 1172.6 (former § 1170.95).Following the appointment of counsel, briefing and a hearing, the trial court denied the petition in August 2020. The court found that defendant was ineligible for resentencing as a matter of law because he was the “actual killer,” a felony-murder theory that remains valid after the passage of Senate Bill No. 1437.

Garcia  appealed contending that:

  1. The trial court improperly evaluated the validity of his murder conviction under the “actual killer” provision of section 189, subdivision (e)(1), as there is no “actual killer” within the meaning of the revised felony-murder rule when death results from a preexisting medical condition aggravated by the stress of the underlying felony.
  2. The trial court erroneously relied upon a sufficiency of the evidence standard in denying his petition for resentencing rather than determining whether the prosecution had met its burden to prove, beyond a reasonable doubt, that he is guilty of murder under current law.

Because the Court of Appeal rejected the first contention, it did not  need not reach his second. Here Garcia  was the actual killer. The Court affirmed the order denying Garcia’s petition for resentencing.

Felony-Murder Liability Prior to Senate Bill No. 1437

Section 189, adopted in 1872, codified the felony-murder rule, under which a killing in the course of a statutorily enumerated felony constituted first degree murder. (People v. Dillon (1983) 34 Cal.3d 441, 465, 467 & fn. 14, 471-472.) “For felony murder, the required mental state is the specific intent to commit the underlying felony.” (People v. Booker (2011) 51 Cal.4th 141, 175.)

The “felony-murder rule covers ‘a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident ….’ ” (People v. Billa (2003) 31 Cal.4th 1064, 1068.) “ ‘ “The purpose of the … rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he  will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1121.)

While the law does not require a strict causal or temporal relationship between the felony and the murder (People v. Prince (2007) 40 Cal.4th 1179, 1259), there must be some connection between the two. The  temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction.’(People v. Wilkins (2013) 56 Cal.4th 333, 346-347.)

California courts have long held “that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834, 846.) For example, “ ‘ “[w]hen the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.” ’ ” (Id. at p. 847) “

A victim’s predisposing physical condition will not preclude a felony-murder conviction even when the condition is a substantial factor in causing the death of the victim, so long as it is not the only substantial factor. The death only need be a direct consequence of the felony; it need not be a natural or probable consequence.

Senate Bill No. 1437 limited the class of persons liable for felony murder by adding section 189, subdivision (e). Under current law, “[a] participant in the perpetration or attempted perpetration of [certain enumerated felonies, including robbery] in which a death occurs is liable for murder only if one of the following is proven:

 (1) The person was the actual killer.

 (2) 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 in the commission of murder in the first degree.

 (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)-(3).)

Senate Bill No. 1437 added section 1172.6 (former § 1170.95), which provides a procedure whereby persons convicted of murder under a now-invalid theory may petition to vacate their conviction. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843.) A defendant is eligible for relief under section 1172.6 if the following three conditions are satisfied: (1) he was prosecuted under a theory of felony-murder, (2) he was convicted of murder, and (3) he could not presently be convicted of murder because of the statutory changes to section 189 effectuated by Senate Bill No. 1437. (§ 1172.6, subd. (a).)

Felony-Murder Liability Under An “Actual Killer” Theory

Garcia  contends the trial court improperly evaluated the validity of his murder conviction under the “actual killer” provision of section 189, subdivision (e)(1), as there is no “actual killer” within the meaning of the revised felony-murder rule when death results from a preexisting medical condition aggravated by the stress of the underlying felony.

Senate Bill No. 1437 specifically limits the liability of accomplices but contains no expressed intent to modify the felony-murder rule’s application to a perpetrator whose acts were a concurrent cause of the death. The Legislature’s purpose in revising the law as it relates to felony-murder liability was to ensure proportionate punishment for accomplices in the felony-murder context, and that the term “actual killer” is meant to distinguish the person who actually caused the victim’s death, including in circumstances where two or more persons participated in the felony.

Had the Legislature intended section 189, subdivision (e) to mean that there is no “actual killer” for purposes of felony-murder liability where death resulted from a preexisting medical condition aggravated by the stress of the underlying felony, it could and would have said so. Case law permits felony-murder liability even when a preexisting medical condition is a substantial factor in causing the death of the victim, as long as it is not the only substantial factor. (Hernandez, supra, 169 Cal.App.3d at p. 287 [heart attack during robbery] Lawmakers are presumed to be aware of judicial decisions already in existence, and to have enacted or amended a statute in light thereof. (People v. Scott (2014) 58 Cal.4th 1415, 1424.) To adopt defendant’s position would require changing  the scope of section 189, subdivision (e) by reading into it language it does not contain. Courts cannot do that. (Vasquez v. State of California (2008) 45 Cal.4th 243, 253 [courts may not rewrite the statute to conform to an assumed intention that does not appear in its language];

Here, defendant was charged with first degree murder and robbery. He was prosecuted solely under the theory that he was the actual killer and committed the robbery alone. The jury found defendant guilty of first degree murder and robbery, i.e., felony murder.

The record of conviction unequivocally establishes that defendant was the “actual killer,” the trial court’s purported failure to apply the proper standard of proof in denying defendant’s petition for resentencing was harmless. Defendant was convicted on a murder theory that remains valid after Senate Bill No. 1437. As a matter of law, resentencing relief under section 1172.6 is not available to an “actual killer.”

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