SB-1437 – Accomplice Liability for Felony Murder Amendments to Penal Code section 188 and 189 – Updates Since Enactment

On September 30, 2018, Governor Jerry Brown approved Senate Bill No. 1437 which made important amendments to Penal Code sections 188 and 189. [1] Newly amended Penal Code sections 188 and 189 took effect on January 1, 2019.

Effective on January 1, 2019, Penal Code section 188 was amended to add a subsection stating: “(3) Except 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.”

Newly added Penal Code section 189(e), states that “a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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.

SB-1437 also added Penal Code section 1170.95 to the Penal Code and permits a person convicted of felony murder or murder under a natural and probable consequence theory to file a petition with the court to have the murder conviction vacated and be resentenced under certain conditions. It is estimated that several hundred prison inmates convicted under the former felony murder accomplice liability rule will be eligible to petition for reduction of sentences.[2]

Recently, Orange County Superior Court Judge Gregg Prickett, ruled that the prosecution could proceed to seek murder charges against an accomplice to a 2016 fatal shooting in Buena Park, California, stating that SB-1437 is invalid.[3] According to an article written by the San Francisco Chronicle, Judge Prickett announces that the Legislature cannot amend or redefine murder or reduce punishment for specified felony murders without the supermajority as required by the Propositions previously passed by voters.

It appears that the constitutionality of SB-1437 will soon be analyzed by the California Appellate Courts and potentially the California Supreme Court.

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