Courts should uphold the new felony murder law

In 2005, Anissa, under the influence of drugs and alcohol, slept in a car while her boyfriend and other friends went to commit a robbery a block away. During the robbery, someone pulled out a gun and fired it, killing the victim.

Velia was asked by her girlfriend's brother to alert him when a neighbor who allegedly owed him money walked by her house. That information led to a confrontation where the brother beat and robbed the neighbor. When Velia heard her neighbor had been hurt, she came to his aid and had her father drive the neighbor to the hospital, where he later died from his injuries.

In a dispute among adolescents, Vahagn and his cousin arranged to meet Mike who had insulted their female relative. Mike brought six friends along with him. While Vahagn stood yards away, talking with the other men, his cousin fought with Mike. A gun was pulled out by one of the two combatants and Mike was shot and killed. Not involved at all in the physical confrontation, Vahagn was as shocked and scared at the sound of gunfire and the shooting as were all of the other young witnesses.

Despite not killing anyone, intending to kill anyone, or, in Anissa's and Velia's cases, being present at the scene, all three were convicted of murder and sent to prison. Anissa and Velia were each convicted under the felony murder rule and sentenced to 25 years to life. That law permitted this draconian outcome whenever an individual agrees to commit a serious crime and a death occurs, even if the individual had no role in the murder, did not intend to kill and did not act with disregard for human life.

Vahagn was convicted under a doctrine known as the "natural and probable consequences doctrine" in which all participants in a crime -- even misdemeanors -- are held liable if a co-participant kills someone. Under this doctrine, a jury is told that they can convict a defendant for murder merely because the defendant should have been able to predict that another person could commit a murder.

Unfortunately, these stories are not unique. Prosecutors have long-used these doctrines to sweep up people and sentence them to life in prison, and now hundreds languish behind bars for murders they did not commit.

Courts have frequently criticized the felony murder rule as unjust, out of date, and illogical. The California Supreme Court said that it "anachronistically resurrects from a bygone age a 'barbaric concept' that "erodes the relation between criminal liability and moral culpability." The Michigan Supreme Court looked to these California cases when it abolished their felony murder rule 38 years ago, calling it "a historic survivor for which there is no logical or practical basis for existence in modern law." In September 2017, the Supreme Judicial Court in Massachusetts limited the application of its felony murder rule for accomplices, relying in part on these California opinions. Indeed, the California Supreme Court may have abolished the rule as well, but in People v. Dillon in 1983 Justice Stanley Mosk stated that the court could not sit as a "superlegislature"; only the Legislature could amend the statute.

For years, jurists and lawyers have similarly criticized the natural and probable consequences doctrine because it imposes liability for the gravest offense -- murder -- on a person who it is conceded had no intention to kill.

In 2016, the Legislature finally started the process of crafting a legislative fix that would address the Supreme Court's concerns while remaining squarely within the Legislature's authority to update the Penal Code.

In Senate Concurrent Resolution 48 (Sen. Nancy Skinner (D-9) and then-Sen. Joel Anderson (R-38)), the Legislature described the injustices inherent in the first and second degree felony murder rules and the natural and probable consequences doctrine. In passing SCR 48, the Senate and Assembly resolved to address these problems with statutory changes. So it was no surprise to anyone when Senators Skinner and Anderson, joined by multiple co-authors, returned in 2018 with Senate Bill 1437.

SB 1437 did not abolish the felony murder rule or end accomplice liability for homicides. Instead, it tailored our laws to align with a cornerstone of American criminal law: a person should be punished in accordance with one's own actions and intentions, not for the actions and intentions of another. Now, felony murder charges are limited to those who (1) actually killed; (2) aided and abetted the killing with the intent to cause death; or (3) acted as a major participant and with reckless disregard to human life during the course of the felony. In other forms of murder liability, the legislature affirmed that murder liability must be based on a person's own actions and subjective intent. No more can a person be held responsible for a murder in which one did not participate, nor intend to occur. However, if one acts with express or implied malice -- what our murder statute has always stated -- one will remain accountable for murder.

Throughout this lengthy legislative process, input was sought and amendments taken at the suggestion of key stakeholders including the California District Attorneys Association, the Judicial Council, judges, attorneys, and impacted people. Senate Bill 1437 not only received bi-partisan support in the Legislature, scores of editorial boards from newspapers large and small urged the Legislature to adopt, and then-Gov. Jerry Brown to sign the bill. Hundreds of people filled the halls of the Capitol to lobby for this bill and speak at hearings. Thousands of people sent in letters to their assemblymembers and senators; thousands more made phone calls. These advocates were not just friends and family members of those who were imprisoned under these draconian laws. Crime survivors also came to speak in favor of the bill. In one recent case, the media came to interview the parents of a young man who had been killed in a burglary. These parents echoed the testimony of crime survivors who spoke in favor of reform. They said that they supported release of the accomplice in their son's case because their pain did not justify an unfair sentence: "I feel justice would be served [if the accomplice were released]. It's certainly not served in cases where there's no criminal intent. It certainly wouldn't bring closure to me to see him punished as if he were the murderer."

Unfortunately, faced with the prospect of losing some of their power to punish, some prosecutors have challenged SB 1437 in the courts with frivolous arguments that it's unconstitutional. Tellingly, such arguments were never raised during the lengthy legislative process although even if they had been raised, Senate staff had thoroughly researched California Supreme Court law in this regard. As the authors of Senate Bill 1437, Sens. Skinner and Anderson, recently wrote, "it's been disappointing to see some of California's prosecutors react to thoroughly researched and debated reform that promotes fairness by working to stop it."

But other prosecutors have properly followed the law, and now California Attorney General Xavier Becerra has also made clear that people unjustly imprisoned for murders they did not commit should be allowed to go home. As well as having his office submit briefs supporting the law, Becerra himself tweeted, "Reforming the felony murder rule is a major milestone in the quest to make our criminal justice system fair and equitable. #SB1437 can and will impact thousands who face the specter of unjust incarceration. I am proud to stand up and defend it in court."

After 15 years in prison, Anissa is now home with her mother and her children, having been re-sentenced. Vahagn will soon be re-sentenced and will return home to his family. Dozens more have left prison after decades inside and are back with their loved ones. The profoundly moving stories of the men and women who have been re-sentenced and released are the best evidence that SB 1437 is a just and overdue reform.

But Velia, who came to the victim's aid, waits in a prison cell as the district attorney in her county fights the implementation of SB 1437. It is long past time for Velia, and all others like her, to come home too. 