Split panel says trial judge erred in ruling recent murder law is unconstitutional

A Kern County Superior Court judge erred when he found a 2019 law that eliminated murder liability under the natural and probable consequences doctrine is unconstitutional, a split 5th District Court of Appeal panel ruled Tuesday.

In a 49-page opinion, Justice Kathleen A. Meehan reversed Judge John S. Somers' judgment that Senate Bill 1437 unconstitutionally amended California Proposition 7, which increased punishment for first- and second-degree murder and expanded the list of special circumstances for which a convict can be punished by death or life without parole. People v. Nash, F079509 (Cal. App. 5th 2020).

Meehan also rejected arguments from Kern County District Attorney Cynthia J. Zimmer that the law unconstitutionally amended Propositions 7, 115 and 9 -- all ballot initiatives passed by voters -- and that it infringes upon the governor's pardoning power.

However, in a four-page dissent, Justice Charles S. Poochigian agreed with one of Zimmer's arguments that the law improperly "prohibits something Proposition 7 authorized" -- harsher penalties for murder.

"Through Proposition 7, the voters said they wanted particular punishments to apply to particular conduct," Poochigian wrote. "Under SB 1437, some conduct that would previously have constituted murder is no longer punishable as such."

Zimmer said Tuesday in an email that her office will continue to oppose the validity of the law because "it is a threat to the power of democracy."

"By permitting the legislature to overrule prior voter-approved propositions, today's opinion helps shape a system of justice where criminals who choose to engage in inherently dangerous crimes like robbery, kidnapping or residential burglarly are not held accountable for the deaths of innocent victims in their wake," Zimmer said.

SB 1437, known as the Better and Equitable Sentencing Through Thoughtful Practices Act, amended California's felony murder law to eliminate liability for murder under the natural and probable consequences doctrine. The law ensures liability is not imposed on a person who wasn't the actual killer, who didn't act with an intent to kill and who didn't act with reckless indifference to human life while participating in a felony that resulted in a murder.

The law also allows prisoners with prior felony murder convictions to petition trial courts for resentencing.

Proposition 7, known as the Briggs Initiative, was passed by voters in 1978 as a response to death penalty legislation that took effect the year before. The initiative substantially increased the punishment for firs-t and second-degree murder and expanded the list of crimes that are subject to the felony murder special circumstance. The initiative also deleted the requirement that a felony murder must be willful, deliberate and premeditated.

In 2010, the defendant in the case at hand took part in a residential burglary during which her sister's boyfriend struck an elderly homeowner in the head. The homeowner later died from blunt force trauma.

The defendant was convicted in July 2013 of first-degree felony murder with a special circumstance finding that the murder was committed in the commission of a burglary. She was sentenced to 25 years to life.

In an unpublished opinion in 2015, a 5th District panel reversed the jury's burglary special circumstance on the grounds that it was unsupported by substantial evidence that the defendant was a major participant in the burglary. People v. Nash, F068239 (Aug. 14, 2015). The defendant, the panel held, was only acting as a lookout. She was not in the residence during the burglary, court filings show.

In May 2019, the defendant petitioned the Kern County Superior Court for resentencing.

Prosecutors opposed the petition, successfully arguing that SB 1437 unconstitutionally changed the scope of the Briggs Initiative by narrowing the statutory definition of murder. The change, they argued, prevented otherwise eligible defendants from being convicted of felony murder. Somers agreed and rejected the petition.

Prosecutors throughout the state have raised similar arguments to those raised by Zimmer, and appeals courts have routinely rejected them, largely relying on two 2019 rulings from the 5th District that upheld the constitutionality of the law. People v. Lamoureux, (Cal. App. 5th 2019) and People v. Superior Court (Gooden), (Cal. App. 5th 2019).

Still, some prosecutors remain adamant about challenging the validity of the law until the California Supreme Court weighs in on those arguments, which might be sooner than expected. The high court granted review of such a case on July 22. People v. Smith, S262835.

The 5th District panel, comprised of Justices Meehan, Poochigian and M. Bruce Smith, on Tuesday reversed Somers' judgment and remanded the case to the trial court for resentencing proceedings.

"While the class of individuals standing convicted of murder may be reduced in light of Senate Bill 1437's changes to the felony murder rule and the natural and probable consequences doctrine, the legislation does not change or take away from the sentences those convicted of murder are subject to, which is in the mandate of Proposition 7," Meehan wrote in Tuesday's opinion.

Court-appointed defense attorney Michelle M. Peterson could not be reached.