When an accomplice aids and abets a crime, the accomplice is culpable for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Natural and probable consequences liability can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) In People v. Chiu (2014) 59 Cal.4th 155 the CSC 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; see id. at p. 166.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 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, § 1, subd. (b).) Among other things, Senate Bill 1437 amended PC 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.” In People v. Gentile (Dec. 17, 2020, S256698) the CSC was asked to decide the effect of this amendment on the natural and probable consequences doctrine as it applies to second degree murder.
The Court concluded that SB 1437 bars a conviction for second degree murder under the natural and probable consequences theory. It also held that the procedure set forth in section PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal.
Note: Because the issue was not presented on direct appeal in Gentile, the court did not decide whether denial of a section 1170.95 petition on the basis of facts not found by a jury would run afoul of Apprendi v. New Jersey (2000) 530 U.S. 466, 490. The court also expressed no view on the questions regarding the section 1170.95 process that are before the court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 3/18/2020 (S260598/B295998).]
Defendants whose cases are pending on appeal may seek to stay their appeals in order to pursue relief under SB 1437. In response to an argument that the court’s reading of SB 1437 will lead to unnecessary delay if defendants await resolution of their direct appeals before filing a section 1170.95 petition, the court noted that “nothing prevents defendants from seeking to stay their direct appeals in order to pursue relief under Senate Bill 1437.” While a notice of appeal vests jurisdiction in the appellate court until determination of the case and issuance of the remittitur, a defendant whose case is pending on appeal may file a motion 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.”
California Supreme Court Decides SB 1437 Case—People v. Gentile
On Thursday December 17, 2020, the California Supreme Court issued its opinion in People v. Gentile (2020) ___Cal.5th___ (S256698), which presented the following issues: (1) Does the amendment to Penal Code section 188 by recently enacted Senate Bill No. 1437 eliminate second degree murder liability under the natural and probable consequences doctrine? (2) Was it prejudicial error to instruct the jury in this case on natural and probable consequences as a theory of murder? (3) Does Senate Bill No. 1437 apply retroactively to cases not yet final on appeal?
The Gentile opinion is available on the court’s website (https://www.courts.ca.gov/opinions/documents/S256698.PDF) and CCAP’s case summary for the opinion is below.
Case Name: People v. Gentile , CalSup , Case #: S256698
Opinion Date: 12/17/2020
Opinion By: Justice Liu (unanimous decision)
Case Holding:
Senate Bill No. 1437, which amended the natural and probable consequences doctrine as it relates to murder, bars a conviction for second degree murder under that theory. Gentile was convicted of first degree murder for the beating death of Saavedra. The Court of Appeal reversed his murder conviction after finding that the natural and probable consequences jury instruction for first degree murder violated People v. Chiu (2014) 59 Cal.4th 155. On remand, the prosecution accepted a reduction to second degree murder. During his second appeal, Gentile argued that SB 1437, which amended the Penal Code to modify accomplice liability for murder and the felony murder rule effective January 1, 2019, applied retroactively to his conviction. The Court of Appeal ultimately affirmed, concluding Gentile was a direct or active aider and abettor of murder. The California Supreme Court granted review. Held: Reversed and remanded. Under the natural and probable consequences doctrine, if a person aided and abetted a nonhomicide offense (e.g., an assault), but an unintended murder resulted, that person could be found guilty of the murder if it was a natural and probable consequence of the intended offense. Murder liability under the natural and probable consequences is vicarious in nature and, before SB 1437, it did not matter whether the accomplice harbored malice aforethought. After the amendments to section 188, except for felony murder, subdivision (a)(3) makes personally possessing malice aforethought a necessary element of murder. It makes no exception for accomplices or second degree murder. The legislative findings as well as the text of SB 1437 reflect that the Legislature intended to restrict culpability for murder outside the felony murder rule to defendants who personally possess malice aforethought. “The most natural meaning of [section 188, subd. (a)(3)], construed in the context of Senate Bill 1437 as a whole and in the context of the Penal Code, bars a conviction for first or second degree murder under a natural and probable consequences theory.” [Editor’s Note: The court noted that (1) “notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life”; and (2) “[i]n other cases involving conduct resulting in a victim’s death, a murder prosecution can proceed under the ‘substantial factor’ causation doctrine or the felony murder rule. (See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 643; People v. Chun (2009) 45Cal.4th 1172, 1182.)”]
The procedure for resentencing in Penal Code section 1170.95, is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply retroactively to cases on direct appeal. Gentile argued that under In re Estrada (1965) 63 Cal.2d 740, the amendments SB 1437 made to sections 188 and 189 should apply retroactively to cases on direct review. The Supreme Court disagreed. Generally, new legislation lessening criminal punishment or reducing criminal liability presumptively applies to all nonfinal cases. (In re Estrada, supra, 63 Cal.2d 740.) However, SB 1437 provides a procedure for defendants with eligible murder convictions to petition to have their convictions vacated through the trial court. (Pen. Code, § 1170.95.) After analyzing SB 1437 and relevant case law, the court concluded SB 1437 does not apply retroactively to cases on appeal because: (1) the Legislature crafted a specific mechanism for seeking retroactive relief that does not distinguish between persons whose sentences are final and those whose sentences are not; and (2) section 1170.95 does not automatically provide all defendants with a right to relief. Instead, section 1170.95, subdivisions (c) and (d) require the trial court to assess the defendant’s eligibility for and entitlement to relief through a petition and hearing process in which the prosecution and the petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” Thus, the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal, but must be sought via a petition filed in the trial court. [Editor’s Note: Because the issue was not presented in this direct appeal, the court did not decide whether denial of a section 1170.95 petition on the basis of facts not found by a jury would run afoul of Apprendi v. New Jersey (2000) 530 U.S. 466, 490. The court also expressed no view on the questions regarding the section 1170.95 process that are before the court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 3/18/2020 (S260598/B295998).]
Defendants whose cases are pending on appeal may seek to stay their appeals in order to pursue relief under SB 1437. In response to an argument that the court’s reading of SB 1437 will lead to unnecessary delay if defendants await resolution of their direct appeals before filing a section 1170.95 petition, the court noted that “nothing prevents defendants from seeking to stay their direct appeals in order to pursue relief under Senate Bill 1437.” While a notice of appeal vests jurisdiction in the appellate court until determination of the case and issuance of the remittitur, a defendant whose case is pending on appeal may file a motion 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.”
Gentile must proceed under Penal Code section 1170.95 in order to obtain relief from his second degree murder conviction. The parties agreed that Gentile has made a prima facie showing that he is entitled to relief (Pen. Code, §1170.95, subd. (c)) “in light of the Attorney General’s concessions and the Court of Appeal’s determination in Gentile I [People v. Gentile (Feb. 27, 2017, E064822) [nonpub. opn.]] that it is ‘probable’ the jury relied on a natural and probable consequences theory in finding him guilty of murder. In their section 1170.95 briefing, the parties are free to litigate what bearing, if any, doctrines of estoppel or preclusion may have in light of those prior concessions and the Court of Appeal’s determination in Gentile I. ” The Supreme Court remanded the matter to the Court of Appeal to affirm Gentile’s second degree murder conviction without prejudice to any petition for relief that Gentile may file under section 1170.95.
