The California Supreme Court unanimously held Thursday that SB 1437, which limited who can be prosecuted for murder and felony murder in the state, bars a conviction for second-degree murder under the natural and probable consequences doctrine.
Former Gov. Jerry Brown signed SB 1437 in 2018, after the Legislature passed the law to address a “need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides” (Stats. 2018, ch. 1015, § l, subd. (b)).
Among other changes, the bill amended Penal Code section 188 to provide that, except as stated in the statute governing felony murder, a principal in a crime “shall act with malice aforethought” in order to be convicted of murder. It also provided that malice “shall not be imputed to a person based solely on his or her participation in a crime.”
The case before the Supreme Court involves the murder conviction of Joseph Gentile, who was charged in the beating death of a restaurant caretaker in Indio. At trial, the court instructed the jury on three separate theories of first-degree murder, one of which was that he aided and abetted his ex-wife in a felony assault whose natural and probable consequence was death.
An appeals court reversed Gentile’s first-degree murder conviction, and on remand the prosecution reduced his charge to second-degree murder. He was sentenced to 15 years to life in prison.
After the governor signed SB 1437, Gentile appealed again, arguing the bill applied retroactively to his conviction and eliminated second-murder liability under a natural and probable consequences doctrine. An appeals court rejected Gentile’s argument, and the Supreme Court granted review.
Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense they directly aided or abetted, but also of any other offense the direct perpetrator commits that was the “natural and probable consequence” of the crime the accomplice aided and abetted.
Culpability under the doctrine doesn’t require the accomplice to share the direct perpetrator’s intent. SB 1437 thus aimed to make it harder to convict someone for murder when that person didn’t intend to kill or didn’t act with conscious disregard for human life.
The “most natural meaning” of the SB 1437 provision at issue, construed in the context of the bill as a whole and of the Penal Code, “bars a conviction for first or second degree murder under a natural and probable consequences theory,” Justice Goodwin Liu wrote for the Supreme Court.
With SB 1437, the Legislature intended to restrict murder culpability outside the felony murder rule “to persons who personally possess malice aforethought,” Liu wrote, and the natural and probable consequences doctrine “is incompatible with this requirement because an aider and abettor need not personally possess malice, express or implied, to be convicted of second degree murder” under that theory.
“Apart from the Court of Appeal decision in this case, every published Court of Appeal opinion to address the issue has concluded that Senate Bill 1437 eliminates natural and probable consequences liability for murder regardless of degree,” Liu wrote, citing seven appellate cases. “We agree with these authorities.”
The court rejected a proposal by the San Diego County District Attorney (amicus curiae in the case) for a “hybrid doctrine” to address conduct where there is proof of malice aforethought but insufficient evidence of other murder liability, calling the scope of such conduct “ill-defined and, in any event, quite narrow.”
SB 1437’s ameliorative provisions, however, don’t apply on direct appeal to nonfinal convictions obtained before the law became effective, such as Gentile’s, the court held. It concluded that such convictions can be challenged on SB 1437 grounds only through a petition filed in the sentencing court under Penal Code section 1170.95.
The court remanded Gentile’s case to the lower court to affirm Gentile’s second-degree murder conviction without prejudice to any petition for relief that he may file under section 1170.95.
Eric Larson, who represented Gentile, said in an email that the court’s decision “was very significant and welcomed as it determined once and for all that liability for the crime of second degree murder in California under the natural and probable consequences doctrine has been eliminated.”
The California Attorney General’s Office could not be immediately reached for comment.
The case is People v. Gentile, case number S256698 , in the Supreme Court of California.
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