Tuesday, May 14, 2019
Court of Appeal:
Cognizance Will Not Be Taken on Appeal of Retroactive Statutory Change Repudiating Theory Under Which Youth Was Found to Have Committed Second Degree Murder—Tangeman
By a MetNews Staff Writer
A minor seeking resentencing based on a retroactive statutory change in the murder statute must, like an adult defendant, file a petition in the Juvenile Court, rather than seeking relief on appeal, the Court of Appeal for this district held yesterday.
The opinion by Justice Martin Tangeman of Div. Six affirms a finding by Los Angeles Superior Court Judge J. Christopher Smith that a youthful offender, R.G., committed second degree murder. The finding was based on the theory that death of the victim was the “natural and probable consequence” of conduct on the part of a co-conspirator.
However, under SB 1437, enacted last year, the murder statute—Penal Code §188—has been amended to provide that malice, an element of the crime, “shall not be imputed to a person based solely on his or her participation in a crime.”
R.G. was one of six gang members traveling by car in a rival gang’s territory. While R.G. was in the car, another member of the gang alighted from it and fatally shot the victim.
Petition for Resentencing
Penal Code §1170.95 was added by SB 1437, declaring that “[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts” under specified circumstances.
Tangeman agreed with the Office of Attorney General that if R.G. wants to be resentenced—Smith ordered him to be imprisoned for 40 years—he must file a §1170.95 petition.
The jurist acknowledged that “Section 1170.95 uses terminology not generally applicable in juvenile proceedings: ‘superior court,’ ‘complaint,’ ‘information,’ ‘indictment,’ ‘plea,’ ‘trial,’ ‘conviction,’ and ‘sentence’ ” but said that fact is not dispositive and it is necessary to look at the “broader context.”
Contrary View ‘Absurd’
“Part of that broader context is Welfare and Institutions Code section 602. That section premises a juvenile court’s jurisdiction over a juvenile offender on the violation of a criminal law….When Senate Bill 1437 amended section 188 to restrict the natural and probable consequences doctrine as it relates to murder, that amendment became applicable to juveniles pursuant to Welfare and Institutions Code section 602….Section 1170.95 pertains to the same doctrine. It would be absurd if statutory changes on the same subject matter in the same bill were not all equally applicable to juvenile offenders….
“Moreover, Welfare and Institutions Code section 602 has been in force since 1961. Since that time, a juvenile court’s jurisdiction over a juvenile offender has been premised on the violation of a criminal law….We presume the Legislature was aware of this premise when it enacted Senate Bill 1437, and that it understood that the bill’s changes to section 188 would apply to juvenile offenders. There is no reason that presumption would not also extend to a petitioning procedure relating to the same criminal laws.”
Disparity Would Result
Tangeman told what he perceives the consequence to be if the procedures set forth in §1170.95 were not applicable to juveniles:
“Suppose, for example, that an adult and a juvenile participated in an assault resulting in a death. Each was found to have committed murder on a natural and probable consequences theory. Neither was the actual killer, and neither harbored malice aforethought. Each would have been ordered confined for a term of 15 years to life….
“Now suppose further that the adult successfully petitioned to have their [sic] murder conviction redesignated assault with force likely to cause great bodily injury pursuant to section 1170.95. The adult’s new maximum term of imprisonment would be four years….But if the juvenile were unable to use section 1170.95’s petitioning procedure, their [sic] term of confinement for committing the same act would remain 15 years to life.”
“We accordingly hold that, where the juvenile court has sustained a murder allegation on a natural and probable consequences theory, a juvenile may, pursuant to the provisions of section 1170.95, petition the court to have that conviction vacated and the corresponding commitment (or other disposition) recalled. Because R.G. has not done so here, Senate Bill 1437 relief is premature.”
In enacting SB 1437, the Legislature stated, as part of the purpose:
“It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.
“..Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.
“…It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”
The case is In re R.G., 2019 S.O.S. 2219.
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