San Francisco Criminal Lawyer BlogSupreme Court Hold SB 1437 bars a conviction for second degree murder under the natural and probable consequences doctrine
People v. Gentile, Supreme Court of California, (S256698), December 17, 2020 — P.3d —- 2020 WL 7393491
Aider and abettors and liability under the natural and probable consequences doctrine
An accomplice who aids and abets a crime is liable for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Liability under the natural and probable consequences doctrine can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210 (McCoy).
In People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 (Chiu), the California Supreme Court held that natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with “reasonable concepts of culpability.” (Id. at p. 165, 172 Cal.Rptr.3d 438, 325 P.3d 972; see id. at p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) after determining that there was further “need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § l, subd. (b).) Senate Bill 1437 amended Penal Code section 188 to provide that “[e]xcept as stated in subdivision (e) of Section 189 [governing felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (Pen. Code, § 188, subd. (a)(3); all undesignated statutory references are to the Penal Code.)
Effect of SB 1437 on the natural and probable consequences doctrine applied to second degree murder
The Court held that Senate Bill 1437 bars a conviction for second degree murder under the natural and probable consequences theory. Moreover, the Court held that procedure set forth in section 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct appeal.
SB 1437 and the natural and probable consequences doctrine
Senate Bill 1437 “amend[ed] the felony murder rule 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.” (Stats. 2018, ch. 1015, § l, subd. (f).)
Senate Bill 1437 amended the natural and probable consequences doctrine, adding section 188, subdivision (a)(3) (section 188(a)(3)): “Except [for felony murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”
Senate Bill 1437 also added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above.
Gentile argued that Senate Bill 1437’s amendments to section 188 eliminate second degree murder liability under the natural and probable consequences doctrine and that his second degree murder conviction must be reversed.
In Chiu, the Court held that the natural and probable consequences doctrine cannot support a conviction for first degree premeditated murder. (Chiu, supra, 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972.) Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the “natural and probable consequence” of the crime the accomplice aided and abetted (i.e., the nontarget offense). (Chiu, supra, 59 Cal.4th at p. 161, 172 Cal.Rptr.3d 438, 325 P.3d 972.) A nontarget offense is the natural and probable consequence of a target offense “if, judged objectively, the [nontarget] offense was reasonably foreseeable.” (Ibid.) The accomplice need not actually foresee the nontarget offense. “Rather, liability ‘ “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” ’ ” (Id. at p. 162, 172 Cal.Rptr.3d 438, 325 P.3d 972.)
Unlike direct aiding and abetting liability, culpability under the natural and probable consequences theory does not require an accomplice to share the direct perpetrator’s intent. Instead, “[a]ider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature” and “ ‘is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense’ ” may not be intended at all. (Chiu, supra, 59 Cal.4th at p. 164, 172 Cal.Rptr.3d 438, 325 P.3d 972.) “[F]or example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.” (McCoy, supra, 25 Cal.4th at p. 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.)
1170.95 Exclusive Procedure for Relief Under SB 1437
Defendants can stay their direct appeals in order to pursue relief under Senate Bill 1437. A defendant may file a motion in the appellate court requesting a stay of the appeal and a limited remand for the purpose of pursuing section 1170.95 relief. An appellate court may grant such a stay and limited remand where good cause supports the motion. (See Martinez, supra, 31 Cal.App.5th at p. 729, 242 Cal.Rptr.3d 860; Cervantes, supra, 46 Cal.App.5th at p. 226, 259 Cal.Rptr.3d 585; see also People v. Awad (2015) 238 Cal.App.4th 215, 220, 189 Cal.Rptr.3d 404 [appellate courts may “issue a limited remand to the trial court, before reaching the merits of the appeal, for the specific purpose of allowing the lower court to entertain a … petition to recall a sentence” under Proposition 47].) “In those cases where a stay is granted and a section 1170.95 petition is successful, the direct appeal may either be fully or partially moot. If the petition is unsuccessful, a defendant may seek to augment the appellate record, as necessary, to proceed with any issues that remain for decision.” (Martinez, at p. 729, 242 Cal.Rptr.3d 860.)
The ameliorative provisions of Senate Bill 1437 do not automatically apply to nonfinal judgments on direct appeal. Gentile must proceed under section 1170.95 in order to obtain relief from his second degree murder conviction.