SB 1437 and Attempted Murder
August 27th, 2020

A recurring issue in Court of Appeal opinions is whether SB 1437 applies to attempted murder liability under the natural and probable consequences doctrine, and there is currently a split in authority. The California Supreme will consider this issue in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted 11/13/2019 (S258175/B271516). See this post: Two Issues Regarding Accomplice Liability for Attempted Murder Currently Before the CSC March 17th, 2020

The California Supreme Court has also granted review, with briefing deferred, of Court of Appeal cases with opinions addressing the attempted murder issue (including cases with unpublished decisions). A list of published cases where review has been granted is below.

  • People v. Munoz (2019) 39 Cal.App.5th 738, review granted 11/26/2019 (S258234/B283921). The Court of Appeal held that SB 1437 does not apply retroactively to nonfinal cases on direct appeal and does not apply to the offense of attempted murder.
  • People v. Larios (2019) 42 Cal.App.5th 956, review granted 2/26/2020 (S259983/F078759). The Court of Appeal held that the resentencing procedure in Penal Code section 1170.95 provides no relief for the crime of attempted murder where defendant’s conviction is final.
  • People v. Medrano (2019) 42 Cal.App.5th 1001, review granted 3/11/2020 (S259948/F068714, F069260). In this direct criminal appeal where the defendants were convicted of attempted murder and the jury was instructed on the natural and probable consequences doctrine, the Court of Appeal held that the Penal Code section 1170.95 resentencing procedure does not apply to individuals convicted of attempted murder and that the defendants were entitled to relief on direct appeal under In re Estrada (1965) 63 Cal.2d 740. For two of the defendants, the court reversed the attempted murder convictions. The court reasoned that SB 1437 “precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder.” The court also concluded the prosecution may retry the defendants on the attempted murder counts.
  • People v. Sanchez (2020) 46 Cal.App.5th 637, review granted 6/10/2020 (S261768/F076838). The court followed Medrano, which held that SB 1437 eliminates the natural and probable consequences doctrine as a viable theory of accomplice liability for attempted murder.
  • People v. Cerda (2020) 45 Cal.App.5th 1, review granted 5/13/2020 (S260915/B232572). In the nonpublished portion of its opinion, the Court of Appeal rejected defendants’ arguments that (1) SB 1437 should apply to attempted murder; (2) the natural and probable consequences doctrine should not apply to attempted premeditated murder; and (3) SB 1437 should apply retroactively without complying with its petition procedure. In the published portion of the opinion, the Court of Appeal concluded that the evidence was sufficient to support the kill zone theory of liability after reconsidering the case in light of People v. Canizales (2019) 7 Cal.5th 591.
  • People v. Dennis (2020) 47 Cal.App.5th 838, review granted 7/29/2020 (S262184/G055930). In this direct appeal from Dennis’s criminal convictions, the Court of Appeal concluded SB 1437 does not bar his convictions for attempted murder under the natural and probable consequences theory. “The legislation reaches the crime of murder but has no application to attempted murder.” However, the court also concluded that the jury instruction on attempted premeditated murder on a natural and probable consequences theory constituted a Sixth Amendment violation because it allowed the jury to find the attempted murders were premeditated without requiring the jury to find that attempted premeditated murder was the natural and probable consequence of the target offense (following the reasoning in Alleyne ). The court vacated the special findings that the attempted murders were willful, deliberate, and premeditated and remanded the matter to give the prosecution the opportunity to decide whether to retry Dennis on the special findings under jury instructions consistent with the opinion in this case. The court also noted that the premeditation finding would fall as a matter of state law if the California Supreme Court extends the reasoning and holding of Chiu to attempted murder.
  • People v. Mejia (2019) 40 Cal.App.5th 42, review granted 1/2/2020 (S258796/G052967). This case does not discuss SB 1437. The Court of Appeal held that the trial court prejudicially erred by instructing the jury on premeditated attempted murder under the natural and probable consequences doctrine based on a codefendant’s premeditation and deliberation, relying on Chiu and declining to follow Favor. The court “conclude[d] the true finding of premeditated and deliberation as an aider and abettor cannot be based on the natural and probable consequence doctrine.” The court vacated the premeditation and deliberation special finding and remanded the case to give the prosecution the opportunity to decide whether to retry Mejia on the special finding as a direct perpetrator.

However, a petition for review was not filed in a case in which the Sixth District held that SB 1437 does not apply to the offense of attempted murder. (People v. Alaybue (2020) 51 Cal.App.5th 207 (H047221).) The court also held that SB 1437 is constitutional and reversed the trial court’s order denying Alaybue’s SB 1437 petition so that the court may reconsider the petition, but only as to the murder convictions.


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